It is not possible for one party to sign away health & safety responsibilities to another in a contract. In both statutory and civil law, the employing firm is usually held responsible for civil law and OH&S statutes, committed by their employees in the name of the firm, as part of their exercising of their responsibilities as a line manager. This may be classed as ‘Vicarious Liability’ and an accident, serious incident or a death on site may result in prosecution for both Criminal Law - Failure to comply with statutory law, and Civil Law - Separate action for breach of contract or negligence. 

There are new duties for ‘officers’ of organizations to take reasonable care (Have the same responsibility as everyone else) under sections 144 & 145 of the OHS act, ‘Officer Liability’. An ‘officer’ is someone who makes decisions that affect the whole or substantial part of the business.

One of the first areas that solicitors and Workcover Inspectors look for in an investigation following a serious incident, accident or a death at a workplace is demonstration of an employers compliance to section 21, of the OHS Act ‘Duty of employers to provide and maintain for employees, so far as is reasonably practicable, a working environment that is safe and without risks to health’ and the demonstration of an employers ‘Due Diligence’ requirements. 

In the workplace, due diligence means taking every reasonable precaution in the circumstances to protect the health, safety and welfare of all of your workers. 

Evidence of due diligence is one of the defences available to a director or any person concerned with the management of a firm charged under the OHS Act. Defence of due diligence requires that the party charged be able to establish that they took all reasonable care to prevent the particular event from occurring. Some examples of information required to demonstrate due diligence at a work place include the key elements of a systematic  ‘Health and Safety Management System’ that can be provided as evidence for a defence against any possible prosecution. Records must be maintained, up to date and include demonstration of instruction, supervision, training and consultation for all employees, Foremen / Supervisors, Managers and Directors.