This is a re-post of a blog from 2015. There is a lot of interest in the impending WHS legislation. I am finding that the greatest misunderstanding is over who is an Officer……….
Many organisations are concerned about the potential implications for ‘Officers’ under the proposed WHS legislation. These concerns particularly involve the fact that an individual can be held directly liable and prosecuted for not exercising ‘due diligence’ – a proactive duty.
There has been much debate over who is an ‘Officer’.
So who is an ‘Officer”…?
An officer is a senior executive who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking. There are three kinds of officers of a ‘person conducting a business or undertaking’ (PCBU) under the model WHS Act:
- An officer within the meaning of section 9 of the Corporations Act, other than a partner in a partnership
- An officer of the Crown, and
- An officer of a public authority.
Under section 9 of the Corporations Act 2001 an “officer” of a corporation means:
(a) A director or secretary of the corporation; or
(b) A person:
- Who makes, or participates in making decisions that affect the whole or a substantial part, of the business of the corporation; or
- Who has the capacity to affect significantly the corporation’s financial standing;
- In accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the persons professional capacity or their business relationship with the directors or the corporation); or
(c) A receiver, or receiver and manager, of the property of the corporation; or
(d) An administrator of the corporation; or
(e) An administrator of a deed of company arrangement executed by the corporation; or
(f) A liquidator of the corporation.
Therefore an Officer is someone who directs the strategic and financial aspects of an organisation.
So who is not an ‘Officer’?
Safe Work Australia offer guidance on who is not an ‘Officer’ –‘ Managers (including Human Resource Managers), Supervisors and Work Health Safety Advisers in an area of the business or undertaking are not officers as they do not generally make, or participate in making, the key decisions on how the person conducting a business or undertaking (PCBU) operates. Instead, they:
- Assist the decision making by providing information and advice, and
- Implement the decisions made by officers.
State, Territory or Commonwealth Ministers of the Crown and elected members of local authorities, in essence councillors, are not officers.’
An interesting example is the case against Kenoss Contractors:
In this case The Project Manager was found not to be regarded as an Officer under the law due to his degree of influence within the company.
It is important to remember that whilst you may not have obligations as an Officer you will still have other obligations under the law.