Understanding WHS Obligations: Are You Meeting Your Due Diligence?

Understanding Work Health and Safety (WHS) obligations means recognising the duties and responsibilities related to ensuring a safe and healthy workplace for everyone.  This includes employers, employees and other individuals present at the workplace.

 WHS obligations aim to minimise risks, provide a safe environment and promote a culture of safety and well-being.

The Requirements of WHS Laws

In warehouse operations, safety is not just good practice, it is a legal requirement. Under the WHS Act 2011, the ‘person conducting a business or undertaking’ (PCBU), such as: business leaders, directors and senior managers have the primary duty of care to ensure the health and safety of workers and others at the workplace, so far as is reasonably practicable.

This extends to a legal duty to exercise due diligence.  This requires a hands-on approach, to actively identifying hazards, putting effective controls in place and continuously checking that those measures are working.

Neglecting these responsibilities puts workers at risk and exposes both your business and you personally to serious legal and financial consequences.

What Does Due Diligence Entail?

Due diligence involves taking reasonable steps to:

• Stay informed and up to date on WHS matters relevant to your operations.
• Understand the hazards and risks associated with your workplace activities.
• Ensure appropriate resources and processes are in place to eliminate or minimise risks.
• Implement effective processes for receiving and responding to information about incidents and hazards.
• Verify that the processes are being followed and are effective.

These steps are outlined in Section 27 of the WHS Act 2011 and are further detailed by Safe Work Australia.

The Consequences of Non-Compliance

In November 2020, a worker at Miller Logistics was assisting a forklift operator load a truck and was hit by the moving forklift suffering serious injuries.

On 8 March 2024, a landmark ruling in the NSW District Court made it crystal clear that WHS obligations for directors and officers are not just symbolic; they carry real weight.  In the case of SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58, the court assessed whether the company’s sole director had genuinely met his due diligence responsibilities under WHS law.

Despite having made some efforts, the director fell short. The incident occurred before key controls were in place, for example clearly defined pedestrian exclusion zones, designated loading and unloading areas, marked forklift paths and physical barriers to separate people from mobile plant.  These were only installed after the incident.  The court didn’t accept that timeline and stated that every single one of those measures should have been implemented beforehand.

This case sends a strong message that compliance isn’t about fixing safety after something goes wrong, it’s about preventing harm in the first place through informed, consistent and visible leadership.

Moreover, storage and warehousing is a high-risk industry which has one of the highest rates of workplace injuries and fatalities. In 2019, it recorded 4.8 injuries per 100 full-time workers, well above the national average. Between 2003 and 2015, the transport, postal, and warehousing sector had the highest number of workplace deaths in NSW.

Practical Steps to Ensure Compliance

To meet your due diligence obligations and reduce the incidence of injuries and fatalities in the storage and warehousing industry it’s crucial to:

Conduct Regular Risk Assessments: Identify potential hazards in your warehouse and implement control measures.

Provide Training: Ensure all staff are trained in safe work practices and understand their WHS responsibilities.

Maintain Open Communication: Encourage reporting of hazards and incidents and respond promptly to concerns.

Review and Update Procedures: Regularly evaluate your safety procedures to ensure they remain effective and compliant with current regulations.

Due diligence in Work Health and Safety (WHS) is the duty taken by the PCBU and officers to ensure their business complies with the WHS Act.  It involves actively monitoring and evaluating WHS management, ensuring suitable safe work systems and ensuring the business has processes in place to receive information about incidents, hazards and risks.

Importantly, meeting your WHS obligations through due diligence is not just about compliance, it’s about fostering a safe and productive work environment.   By proactively managing risks and engaging with your workforce on safety matters, you protect your employees and your business.   

Remember, due diligence is an ongoing process that requires commitment and continuous improvement.

Don’t wait for a near miss to force action. Take a proactive stance.

• Audit your space
• Identify your risk zones
• Install protection where it matters
• Document your action plan for WHS compliance

Need expert advice to meet your WHS obligations?  Click Here to get in touch with us for a safety audit and compliance assessment!