Due diligence

Information for persons conducting a business or undertaking (PCBUs) and officers about their legal obligation to exercise due diligence.

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What is due diligence

The word ‘diligence’ was considered in SafeWork NSW v Mitchell Doble [2024] NSWDC 58. at [50] to [52] and the following Oxford Dictionary definition was referred to ‘…constant and earnest effort to accomplish what undertaken; persistent application and endeavour; industry, assiduity’,

‘Due diligence’ includes taking reasonable steps to secure compliance. Reasonable steps fall under six areas.

1. Acquire and keep up to date knowledge of WHS matters

This means you must take reasonable steps to obtain and maintain current knowledge of work health and safety (WHS) matters, which could include WHS law, risk management principles, and contemporary WHS issues relevant to your operations.

Examples of practical actions:

  • Annual WHS governance training for officers covering Work Health and Safety Act 2011 (NSW) (WHS Act) obligations, recent amendments, and regulator priorities.
  • Quarterly legal or technical briefings to the Board or executive leadership on emerging hazards (for example, psychosocial risks) and codes of practice updates.
  • Attending a briefing to learn about WHS law and the company’s responsibilities.
  • Monitoring and reviewing information regarding safety matters.
  • Staying up to date with relevant WHS publications.
  • Training in risk management principles in safety.

Records you can point to:

  • officer training records
  • board skills matrix
  • briefing packs on WHS law updates.

2. Understand the nature of the operations and the hazards and risks associated with those operations

This means you must take reasonable steps to know what the business does and generally what hazards or risks that work creates.

Examples of practical actions:

  • Program of officer site visits to high-risk locations (for example, plant rooms, warehouses, civil sites) with structured hazard conversations.
  • Periodic deep dives on critical risks (traffic interaction, falls, plant isolation) aligned to approved codes of practice.
  • Acquire knowledge on risk and hazards in the industry that the company operates.
  • Gain an understanding of the higher risk activities and major hazards associated with core operations.
  • Understand the safety risk that arises from the business operation.
  • Measure to ensure risks do not materialise.
  • Officers should commit to safety observation.

Records you can point to:

  • visit logs with observations
  • risk registers
  • critical risk heat maps discussed in executive leadership or board meetings.

3. Ensure the PCBU has and uses appropriate resources and processes to eliminate or minimise WHS risks

This means you must take reasonable steps to ensure the organisation provides and actually uses appropriate resources and processes, such as people, plant, systems and controls necessary to eliminate or minimise risk to health and safety.

Examples of practical actions:

  • Approve and track budget allocations for engineering controls (for example, fixed guarding, interlocks) and competent supervision.
  • Ensure sufficient WHS capability (for example, safety engineers, hygienists) and frontline staffing to run operations safely.
  • Designate a safety expert with the proper level of authority within the company.
  • Be proactive in bringing up WHS issues at the executive level meetings.
  • Ensure that safety processes and system receive adequate and transparent investment by monitoring resource allocation.

Records you can point to:

  • capital requests tied to risk assessments
  • staffing plans
  • purchase or maintenance records for safety critical controls.

4. Ensure there are processes to receive, consider and respond to information about incidents, hazards and risks in a timely way

This means you must take reasonable steps to ensure the PCBU has appropriate resources for receiving and considering information regarding incident, hazards, and risks, and responding in a timely way to that information.

Examples of practical actions:

  • Configure the WHS system to escalate notifiable incidents, serious hazards and overdue actions to executives with time to respond KPIs.
  • Establish a standard ‘events to actions’ workflow (who analyses, who decides, by when, and how closure is verified).
  • Ensure all workers, including contractors, are informed and know how to use the system in reporting a notifiable incident.
  • Perform audits and evaluate the reporting system.

AS/NZS ISO 45004:2024 provides organisations with a comprehensive approach to evaluating occupational health and safety (OHS) performance.

Records you can point to:

  • incident trend dashboards
  • action or closure reports
  • minutes evidencing decisions taken and timeframes met.

5. Ensure the PCBU has, and implements, processes for complying with any WHS duty or obligation

This means you must take reasonable steps to ensure that the PCBU has, and implements, processes for complying with their duties and obligations, The Act lists examples, and others may apply depending on your business.

Examples of processes for complying include:

  • reporting notifiable incidents
  • consultation with workers
  • compliance with notices
  • provision of WHS training and instruction
  • Health and Safety Representative (HSR) training entitlements.

Core examples in the Act:

  • reporting notifiable incidents
  • consulting with workers
  • ensuring compliance with notices
  • providing WHS training or instruction
  • ensuring HSRs receive training entitlements.

In NSW, other important processes to include:

  • licensing or registration obligations for regulated activities or plant
  • right to entry requirements (WHS entry permits)
  • making sure that hazards are properly managed through applying the hierarchy of controls
  • verifying that Health and Safety Representatives (HSRs) and workers receive sufficient training and instruction
  • maintaining clear lines of management responsibilities for WHS matters.

Records you can point to:

  • procedure suite
  • training matrices
  • consultation records
  • licence/registration schedule
  • registry for notices and status of compliance.

6. Verify the provision and use of resources and processes for steps 3 - 5

This means you must take reasonable steps to verify the provision and use of resources and processes for steps 3-5, ‘Verify’ implies actively confirming such as - audits, inspections, reviews and follow through, not passive receipt of reports.

Examples of practical actions:

  • Ensure that contractors and subcontractors are adequately evaluated before commencing work for the company.
  • Peer reviews.
  • Commission internal audits or assurance reviews of critical controls and track closure to evidence effectiveness.
  • Maintain a decision and participation register for decisions likely to affect the whole or a substantial part of the undertaking (what, why, who decided, who participated and on what basis, and information considered).

Records you can point to:

  • audit plans or reports
  • corrective action logs
  • completed decision register entries cross-referenced to Board or executive leadership minutes.

The examples provided here are not intended to be exhaustive and instead represent general guidance.

These examples do not represent a comprehensive statement of the law, nor do they address how the law applies to particular circumstances or individuals.

They are not a substitute for legal advice. You should seek independent legal advice if you need assistance on the application of the law to your situation.

Complete the Officer Due Diligence Self-Assessment

The Officer Due Diligence Self-Assessment tool is a short questionnaire to help officers understand how effectively they are exercising their WHS due diligence responsibilities. The tool provides:​

  • insight into current due diligence practices​
  • strengths and opportunities for improvement
  • tailored actions to strengthen safety leadership.

Take the Officer Due Diligence Self-Assessment

If an officer fails to comply with due diligence obligations

If an organisation fails to comply with a duty or obligation in the WHS legislation and the failure is either partially or wholly attributed to the officer failing to comply with their duty under section 27, the officer may be found guilty of an offence.

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