Health and safety legal compliance

The problem to be solved

All officers of businesses are expected to meet a personal and proactive duty to exercise due diligence under health and safety laws in jurisdictions like Australia and New Zealand.   

Officers are required to personally take steps to meet the 6 elements of due diligence.

Element 5 of the due diligence obligation requires officers to ensure the organisation for which they are an officer complies with all WHS duties and obligations under the health and safety legislation. This means for officers to meet their personal legal obligations, they must have a process in place for health and safety legal compliance audits to be conducted of the organisation’s systems and activities.  

Legal compliance audits are different to system audits against international health and safety management system standards. Systems audits will test that risk management processes exist but not each specific mandatory legal requirement that must be captured within those processes.  As such, systems audits, whilst helpful, are not sufficient to provide the level of assurance officers require to meet their personal duties under health and safety laws.  

Why this is important to you

A failure to meet any element of the officer due diligence obligation is a breach of duty which can lead to criminal offences.  Health and safety regulators can commence prosecutions against organisations and their officers for failing to meet the duties under health and safety laws. Officers should be aware that:

• breaches of the officer due diligence obligation can result in a fine of up to AUD744,230 and/or five years imprisonment for category one offences; and
• in the event a workplace fatality occurs, there is the risk of industrial manslaughter offences for officers which come with the potential for up to 25 years’ or life imprisonment.  

The very best proactive defence strategy for officers to avoid these types of offences is ensuring legal compliance (with a focus on priority risk areas). We can help you obtain the assurance your leaders need to meet their personal obligations.

Our tool is unique

Our tool supports your organisation to build resilience and capacity for safety by forensically examining each specific requirement of the health and safety laws which apply to your organisation. 

Anyone who has undertaken a cursory examination of health and safety laws knows that they are not particularly easy to navigate. Legal requirements on single topics are often found in multiple places in Acts, Regulations and Codes of Practice.  In that context, there can be a risk that specific requirements can be missed.   Our audit tool eliminates this risk for you. For ease of use and implementation of corrective actions, the design of the audit tool adopts a topic-by-topic approach that reflects best practice health and safety management system structures, making audits easier to conduct. The audit tool incorporates over 600 audit criteria within 28 sub-topics in the core topics.

Our tech-enabled audit tool adopts a user-friendly format that:

• Captures jurisdictional differences (and adopts a highest common denominator approach where multiple jurisdictions apply)
• Captures duties at the worker, supervisor, manager, leader and organisational levels 
• Captures contractor and supply chain management
• Uses audit criteria crafted as plain-English positive statements that test the core aspects of the legal requirement without unnecessary jargon 
• Provides legislative mapping to each audit criterion to enable review of the source of the audit criteria and for currency of your systems over time 
• Is constantly maintained as laws change giving you piece of mind that your audits are being conducted against current legislation as at the time of the audit
• Has a unique grading system that adopts a traffic light approach with specific topics assigned greater materiality based on legal liability and health and safety risk to help you to identify yourpriority areas for closing out on compliance gaps
• Features graphical reporting to support briefing Boards and senior management on the audit results and attending to the closing out of any compliance gaps

The audit tool can be offered in an excel format or in a web app format if desired.

Product packages that meet your needs

Contact us to learn about the product packages we have on offer.

We have a subscription package that can meet your requirements, no matter the size or scale of your operations and your audit program.

The audit tool can be integrated within your current audit programs as a second party or third-party audit within the broader audit program. Your internal health and safety team can be trained in the use of this audit tool and conduct desktop audits of the organisation’s health and safety system using the tool. They can also use the tool to test legal compliance of the systems, procedures and processes in practice as part of operational audits (for example, at the project or the site level).    

We believe that quality audits require a confident skilled audit team. We offer a training program to support your in-house auditors in implementing our legal compliance audit tool as part of your in-house audit program. We can also work alongside your in-house audit team in coaching and mentoring during the performance of legal compliance audits.

We also offer a service where Clyde & Co lawyers can be commissioned to conduct an independent third-party audit using our tool.  Where these legal compliance audits are conducted by our lawyers, you also have the benefit of client privilege. Clyde & Co’s dedicated health and safety team can also support your engagement with senior leaders in understanding the audit results and determining next steps.