What is ‘executive due diligence’?
I would like to understand what ‘executive due diligence’ means. Could you please provide me with a definition?
Due diligence relates to the duty of care owed by officers under work health and safety (WHS) laws. The reference to ‘executive due diligence’ also relates to the duty of care owed by officers and senior managers under the Heavy Vehicle National
Law (HVNL), particularly the concept of the Chain of Responsibility (CoR). Under the CoR, all persons responsible for
activities that affect compliance with the HVNL are held liable for a failure to exercise that responsibility.
The CoR regime imposes a due diligence obligation on executives to ensure that their entity complies with its responsibility – this being the safety of heavy transport activities related to their business. An executive is a company director or any person (by whatever title and whether or not the person is a director) who is concerned or takes part in the management of a corporation.
This executive due diligence obligation takes its definition from the WHS laws and is set out in section 26D of the HVNL.
In practical terms, it means taking all reasonable steps to implement and verify that systems are in place to control the risks arising from heavy transport activities.
These steps commonly include:
- implementing a framework for CoR risk identification, assessment and mitigation;
- implementing a system to provide information, instruction, training and supervision to workers, customers and business partners (e.g. contractual counterparts and subcontractors) in relation to CoR compliance; and
- monitoring the implementation of the framework and systems in practice and addressing any issues of non-compliance.
Consequences for failing to exercise executive due diligence include significant fines and jail sentences.