PCBU and Officer Due Diligence: What Directors Must Know
Section 27 of the WHS Act imposes personal liability on officers. Due diligence is not optional — it is a positive duty with uninsurable consequences.
Understanding officer due diligence obligations
Section 27 of the WHS Act 2011 requires officers of a PCBU to exercise due diligence to ensure the PCBU complies with its WHS duties and obligations. An "officer" includes directors, company secretaries, and any person who makes or participates in making decisions that affect the whole or a substantial part of the business. This is a personal liability provision — an officer who fails to exercise due diligence can be prosecuted individually, and the resulting fines are uninsurable in NSW since 10 June 2020.
Due diligence under s.27 has six specific elements. An officer must: acquire and keep up to date knowledge of WHS matters; gain an understanding of the nature of the operations and the hazards and risks associated with those operations; ensure the PCBU has available, and uses, appropriate resources and processes to eliminate or minimise risks; ensure the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks, and for responding in a timely way; ensure the PCBU has, and implements, processes for complying with its duties; and verify the provision and use of those resources and processes.
The 2023 amendments to the WHS Act introduced the "corporate culture" test for Category 1 (reckless conduct) offences. A body corporate can now be found guilty of a Category 1 offence if the conduct was attributable to a corporate culture that directed, encouraged, tolerated, or led to the failure to comply with the duty. This means officers must not only take personal steps but must also ensure the organisational culture supports WHS compliance. A documented due diligence program is the officer's primary evidence of meeting this obligation.
The EHS Atlas Due Diligence Log creates the evidence trail that officers need. It records WHS briefings received, decisions made, resources allocated, reports reviewed, and actions taken. Without documentation, due diligence is an assertion. With documentation, it is evidence.
Affected Industries
| Industry | Impact Level | Key Change | |
|---|---|---|---|
| All industries | high | Officer due diligence applies to every PCBU regardless of industry | View Solution → |
| Construction | high | Highest prosecution rate; officers of construction companies frequently targeted | View Solution → |
| Steel fabrication | high | Health monitoring obligations increase officer exposure | View Solution → |
| Aged care | high | Psychosocial hazard enforcement increasing officer scrutiny | View Solution → |
Establishing officer due diligence
Establish a due diligence log
Document every WHS briefing, decision, and action. The log is your primary evidence that you took reasonable steps. Start now — retrospective documentation has limited evidentiary value.
Open Module →Schedule regular WHS briefings
Officers must receive regular information about WHS performance, incidents, hazards, and compliance status. Monthly reporting to the board or management is the minimum standard.
Open Module →Understand your hazard profile
Due diligence requires officers to understand the nature of the operations and the hazards. An officer who cannot describe the top five WHS risks in their business has not met the due diligence standard.
Open Module →Allocate adequate resources
Due diligence includes ensuring appropriate resources are available. This means budgets for training, equipment, monitoring, and safety systems — not just intentions.
Open Module →Regulatory Timeline
Due Diligence Log
EHS Atlas Due Diligence Log documents officer compliance activities, WHS briefings, resource allocation decisions, and incident responses as evidence under s.27.
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