What is Due Diligence?

It is important to appreciate that the elements of due diligence must be present in the workplace before accidents or incidence occur. if it is to be available as a defense to a charge under the ACT. Due diligence cannot be "made up" after the fact. The availability of the due diligence defense depends upon the creation, implementation and enforcement of appropriate health and safety policies, practices and procedures in the workplace.

From the perspective of a defense to a prosecution under the ACT, due diligence requires that the party charged be able to establish that they took all reasonable care to avoid the particular event giving rise to the prosecution.

Bringing due diligence to the workplace requires integrating the reasonable care standard into all activities carried out by the enterprise. Due diligence is an active concept. It is much more than simply handing out a list of rules and regulations to employees and expecting them to follow them. It requires action on the part of employers and managers to ensure that the policies and practices are present but equally important to ensure that they are really applied and complied with in the workplace.

In order to meet this aspect of the due diligence obligation, employers must review the activities carried on in their workplace and identify those which are hazardous. Procedures for the safe performance of hazardous activities must be developed. Those procedures must be specific. Procedures, policies and practices must be kept up-to-date. As new equipment is introduced in the workplace or new procedures added, changes must be made and communicated to employees.
Documenting Due Diligence Steps:

Implementing due diligence in the workplace has a dual purpose.

First, the requirements of due diligence are a standard against which management can judge the success of it's health and safety programs and provide a broad criteria for the improvement of those programs.

Second, due diligence will act as a defense to charges in the event that they do occur notwithstanding the employer's due diligence efforts.

Because of this second purpose for due diligence efforts, it is extremely important that the employers document their due diligence efforts. Employers who do have an effective program to bring due diligence to the workplace want to be able to prove the existence of that program through documentation in the event of charges being laid under the ACT. Management should ensure that training activities, safety audits, discipline and health and safety meetings are all documented and the documentation is retained. The due diligence efforts which are made in one year may well be important in proving a defense for charges laid in subsequent years. Without proper documentation, it becomes much more difficult for the employer to prove the extent of its efforts. The Occupational Health and Safety Act is relatively simple in one area; that is, what it takes to be subject to a fine under the ACT. The ACT basically provides that any workplace party who does something that the ACT says they are not supposed to do, or fails to do something that the ACT says they are supposed to do, is guilty of an offence.

With the increased fines, corporations face a penalty of up to $500,000.00 for each conviction. In many cases, due diligence will be the only defense available to employers and supervisors charged with violations of the ACT. The time to start preparing that defense is now, not after charges have been laid. A positive introduction of due diligence concepts into the workplace will, while improving health and safety standards, also put in place a defense to charges should they arise, thus benefitting both the employer and it's workers.