The work health and safety duty of an officer

Guidance on the interpretation and application of section 27 of the Work Health and Safety Act 2011 (NSW) (WHS Act), including who will be an officer and what it will mean for them.

On this page:

Why there is a due diligence requirement on an officer

The WHS Act places primary health and safety duties on the person conducting a business or undertaking (PCBU). To ensure those duties are achieved, officers must exercise due diligence, a positive, personal duty focused on governance, resources and assurance.

Personal Liability

If an officer fails to exercise due diligence, they may be personally liable under the WHS Act offences framework.

Who an ‘officer’ is in NSW

Under the WHS Act, ‘officer’ means:

  1. an officer as defined in s9AD of the Corporations Act 2001 (Cth) (other than a partner in a partnership), or
  2. an officer of the Crown (see s247), or
  3. an officer of a public authority (see s252), but not an elected member of a local authority when acting in that capacity.

Corporations Act, officer definition (summary) Under s 9AD of the Corporations Act 2001 and ‘officer’ of a corporation means:

  • a director or secretary, or
  • a person who makes, or participates in making, decisions affecting the whole or a substantial part of the business, or
  • a person who has capacity to significantly affect the corporation’s financial standing, or
  • a person in accordance with whose instructions or wishes the directors are accustomed to act (excluding proper professional advice), or
  • specified insolvency/restructuring roles (for example, receiver, administrator, liquidator; and certain restructuring practitioners/trustee administering a compromise or arrangement).

Exclusion of a partner and councillors

  • A partner in a partnership is not an officer for NSW WHS purposes (partners are themselves the PCBU).
  • An elected local councillor is not an officer when acting in that capacity (and a councillor does not, in that capacity, conduct a business or undertaking).

Public sector officers

A person who makes, or participates in making, decisions affecting the whole or a substantial part of the Crown’s or a public authority’s business or undertaking is taken to be an officer. Ministers are expressly not officers in that capacity.

For complex departments, record the basis on which a division or agency is a ‘substantial part’ (for example, materiality, critical services, policy locus) to help identify which executives are officers.

Volunteers

A volunteer can be an officer and therefore must exercise due diligence, but cannot be prosecuted for failing to comply with s 27 (see s 34(1)). Improvement notices can still require compliance.

Managers and Supervisors

Managers or Supervisors who primarily implement decisions and do not determine how the PCBU operates are unlikely to be officers.

The meaning of ‘participates in making decisions’

You can still be an officer even if you do not make the final decision. This can apply if you regularly take part in decision-making and your role helps shape, support, or influence the decisions that are made.

What a ‘substantial’ part of the business or undertaking is

When assessing whether a function or division is a ‘substantial part’ of the business, consider:

  • contribution to revenue or financial standing
  • significance to reputation
  • whether it is a core function
  • proportion of personnel involved, and
  • whether significant strategic or policy decisions are made within that part.

What the ‘capacity to affect the corporation’s financial standing’ means

A person may have the capacity to affect significantly the financial standing of a company where they are involved in the financial management of it (for example, a chief financial officer) or are involved in decisions relating to significant investments or projects.

A court has held, however, that a person whose role it was to trade in shares was not an officer even though the amount of money they were authorised to deal in was very large.

What is due diligence

The word 'diligence' was considered in SafeWork 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 is undertaken; persistent application and endeavour; industry, assiduity’

Learn more about due diligence.

What does ‘reasonable’ mean

Under s 27(5), officers must take reasonable steps across the six elements of due diligence.

‘Reasonable’ is an objective, context dependent standard. In SafeWork NSW v Neville George Hetherington [2019] NSWDC 11 at [45] it was stated that what are reasonable steps will be “...determined to some extent by the officer’s place in the corporate structure and their ability to control the objective outlined in section 27(5)(a)-(f)”.

This could include asking what a reasonable officer in the same position in the corporate structure, and with the same ability to control the objectives outlined in section 27(5)(a)-(f) could have done to secure the PCBU’s compliance, taking into account the business’s particular risks and circumstances.

This interpretation draws on the text of s27, the surrounding WHS principles, and nationally accepted guidance on officer duties.

In practice, regulators and courts weigh how far it was reasonable for the officer to go, having regard to the following non-exhaustive factors:

Role, authority and influence of the individual officer

The higher the officer’s actual influence over decisions (structure, strategy, risk and resourcing), the more is expected of them. Board directors, CEOs and executives with portfolio control must typically do more than functional managers with limited remit.

Nature and scale of operations; inherent risk profile

The more complex, high hazard, geographically dispersed, or rapidly changing the operations, the greater the level of diligence and formality expected in risk oversight, resourcing and verification.

Foreseeability and seriousness of harm

Where hazards are well known or involve high consequence outcomes (for example, mobile plant, falls, confined spaces, crystalline silica, psychosocial harm), ‘reasonable’ steps trend toward stronger controls, faster response, and closer verification.

Knowledge actually held, and knowledge a reasonable officer should have acquired

Officers must take reasonable steps to acquire and keep up to date knowledge of WHS matters; failure to inform oneself does not narrow what is ‘reasonable.’ You are judged against what you knew or ought reasonably to have known.

Resources available and practicality

‘Reasonable’ in this context does not mean limitless, but where relatively simple, effective measures are available (policy, engineering controls, staffing, training), a reasonable officer ensures they are provided, implemented, and used.

Industry standards, codes and accepted practice

Officers are expected to measure controls against relevant codes of practice and accepted guidance (for example, How to Manage WHS Risks), and to close gaps.

History and signals - incidents, near misses, audit results, notices

Once issues are known (incident spikes, outstanding corrective actions, improvement or prohibition notices), ‘reasonable’ usually means visible escalation, timely action, and follow through to closure.

Delegation vs. verification; reliance on others

Officers may delegate tasks and rely on credible advice, but they cannot delegate the duty. Reasonable reliance could include choosing competent advisors, testing the advice, and verifying that processes and controls are in place and used.

Key legislation (NSW)

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