The definition of an officer is stated clearly in the WHS Act. You are someone who makes significant business decisions and can alter the business’s financial position. Who does that make you though? Are you a business owner, a director or perhaps a senior project manager? Are you certain of your duties under WHS law?
Ignoring your duties or assuming they belong to someone else can have serious consequences. You can put your workers at significant risk, chancing injury, illness and even death. Let’s not forget, you are at serious risk too. If you are deemed liable under WHS law, then you can face hefty fines and even imprisonment.
Are you absolutely sure you’re not an officer under WHS law?
The Extended Definition of an Officer
The standard definition of an officer is defined under Section 27 of the WHS Act. The crux of the matter is that where a person conducting a business or undertaking (PCBU) has a duty under the WHS Act, an officer must exercise due diligence. However, whether a person is an officer needs to be proven beyond any reasonable doubt.
As well as Section 27 of the WHS Act, Section 9 of the Corporations Act can be used to further define an officer. While, for the most part, an officer will be a director or owner, the definition can extend to someone who:
- Makes, or is involved in making, decisions that influence the whole, or a substantial part of the business.
- Has the capacity to significantly affect the organisation’s financial standing.
- Gives instructions, or expresses wishes, upon which the company’s directors are accustomed to act.
More than simply a one-size-fits-all definition, organisational charts are used to outline company structure. A person could fall under the definition of an officer if they sit at the head of a significant project team and make critical business decisions.
If There Is Any Doubt, The Courts Will Decide
If there is any uncertainty as to whether you’re an officer, in the event of a health and safety incident, it will be down to the courts will decide. This was proven back in 2015 when the ACT Industrial Magistrates Court delivered the first judgement in Australia interpreting the meaning of an officer.
The 2015 case saw a senior project manager at risk of liability when a delivery driver was electrocuted by low hanging electrical wires on a construction site. In the first instance, both parties, the project manager and the construction company, were charged with a Category 2 offence. By failing to comply with their health and safety duty, they faced maximum fines of $300K and $1.5M, respectively.
The Court held that the definition of an officer depended on an assessment of the role within the specific company. The project manager was seen to have an essential role in managing large scale projects and participated in decision making. However, the position was seen to be less significant in relation to the wider organisational structure. There was a clear distinction drawn between people with organisational and operational responsibilities.
Do You Make Organisational Decisions?
The 2015 case was an important one for PCBUs. It proved that it isn’t as clear cut as you might think. The courts will take a practical organisational view in the event of an incident. While project managers were no doubt relieved by the outcome of the 2015 case, it proved that the definition will be questioned and scrutinised. There is no guarantee that a project manager can’t be an officer; it depends on the organisation in question.
Every organisation is different, with its own structure, and you need to be certain whether, in those terms, you meet the definition of an officer.
You Can’t Afford Not to Take Your Duties Seriously
Penalties are increasing for WHS breaches with huge fines, as well as imprisonment, becoming a reality rather than merely a possibility.
There is a growing trend for imposing significant penalties for reckless conduct, recent court hearings have seen:
- Junkyard owner in Foster, near Melbourne, sentenced to six months in jail and a $10,000 fine after a worker died in a forklift accident.
- Roofing company director in Brisbane, sentenced to 12 months imprisonment and his company fined $1 million after the death of a roofer.
- Limestone quarry company in NSW fined $900,000 and its worker $48,000.
- Transport company in Victoria fined $1 million.
- Two cases in NSW seeing fines being reviewed and then increased from $300,000 to $600,000 and $75,000 to $375,000.
The lesson is clear; no company, officer or worker can afford not to take their WHS duties seriously. You need to be confident without any room for doubt whether you are an officer. If you are, you must exercise due diligence. If you don’t, you can be held personally liable.
Don’t make any assumptions. Find out whether you are an officer. If it’s not you, find out who it is. The risks are too high to ignore your responsibilities.