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Australia Tightens Corporate Governance Responsibilities of Directors and Officers

(Sunnyvale, CA)- Australia has amended work health and safety (WHS) laws which are likely to be implemented in early 2013, increasing corporate governance responsibilities for directors and officers of companies doing business in the country.

In the New Year, officers of a company may have to go through compliance auditing by WHS regulators to ensure they are fulfilling strict due diligence parameters set under the WHS laws. In case of laxity, under the new WHS laws, the officers may be penalized up to $600,000 and/or 5 years of jail sentence. Therefore, directors and officers need to make sure their companies are compliant with the new legal obligations.

Highlights of the New WHS Laws:

Definition of an Officer:

The term “officer” may include any person who is a director, shadow director, secretary of a corporation /or any other person making or involve in decisions making process which influences the whole or a significant part of the business of the company. It may include any person who has the capacity to influence the financial position of the corporation. It may also include as officers - administrators, receivers and liquidators, if appointed.

Definition of Due Diligence:

Directors and officers have a positive and independent responsibility to exercise "due diligence" to ensure that their respective companies comply with duties and obligations set out under the WHS laws. It should be noted that for an officer to be prosecuted, it is not necessary for the corporation to commit any breach of the WHS laws. WHS laws states that active commitment to safety is required and “due diligence” has to be exhibited by taking reasonable steps, which include the following:

  • To obtain and maintain latest understanding of WHS laws.
  • To have knowledge of operations, hazards and risks associated with the business.
  • To make sure suitable resources and processes are taken in place to minimize or eliminate risks to health and safety
  • To implement adequate procedures and processes for receiving, replying and taking action on information about incidents hazards and risks.
  • To create and maintain compliance processes.
  • To verify the provision and employment of resources.

Officer (Director) Due Diligence Plan:

A personalized “due diligence plan” must be prepared for each officer as “due diligence” would vary depending on the business, officers’ role and influence and/or area of operations. For individuals being directors and/or officer of more than one company, they should have a personalized tailored plan for each of the companies.

Therefore, the “Officer Due Diligence Plans” must not only integrate elements of legislative obligations, but also be customized to accomplish compliance. Nair & Co. can assist companies doing business in Australia to develop, apply and scrutinize Officer (Director) Due Diligence Plans.

For more information on compliances and regulatory requirement for companies doing business, please contact Nair & Co.

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Published: December 10, 2012. The information provided on this page is intended merely to highlight issues for general information purposes only. It is not comprehensive nor does it provide legal advice. Any information is subject to change without notice. No liability whatsoever is accepted by Nair & Co.


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