Having regard for, and, participating in, decisions which influence health and safety can lead to improved performance of the company. The role of any officer in this regard is fundamental. It is the officer who is in a position to ensure compliance by the company. The duty would be, therefore, to ensure the corporation complies with the model Act.
The duty should be subject to a qualifier of ‘due diligence’. That qualifier recognises that a breach may be committed by the company in spite of proper efforts by the officer to ensure compliance. To not qualify the duty in this way may lead to concerns that liability is not associated with the conduct of the officer, but rather another person (the company) and raise concerns of unfairness.
The due diligence qualifier also recognises the position of the officer in the organisation as being senior to workers and others and therefore is more stringent than that of ‘reasonable care’. The provision as recommended recognises that officers are key persons in an organisation.
The due diligence requirement is well known to officers and would require (and encourage) proactive steps to be taken by the officer.
