Officer's duties and WHS - how far does the ripple extend?

Who is liable as an "officer" has been the subject of some contention under the harmonised Workplace Health and Safety (the WHS) legislation which currently operates in all states and territories other than Victoria and Western Australia.

A recent decision of the ACT Industrial Court provides some welcome guidance on this question.

Background

Munir Al-Hasani was engaged by Kenoss Contractors Pty Ltd (Kenoss) as its Project Manager and managed a number of projects for Kenoss.

On one particular project, Kenoss had two available sites for the storage of material to assist it in undertaking nearby road resurfacing works, however one of those sites, the Boldrewood Street site, had been identified as unsuitable for use due to low hanging electrical wires. Although fenced and signposted the Boldrewood Street site was unlocked.

A truck driver engaged by a contractor to Kenoss made a delivery to the Boldrewood Street site despite being directed to deliver the material to the other storage site.  When the truck driver made the delivery, he tipped his load and the bucket of the truck appears to have made contact with the electrical wires resulting in the truck driver's death due to electrocution.

The proceedings

The Regulator commenced proceedings against both Kenoss and Mr Al-Hasani under the Work Health and Safety Act 2011 (ACT) (the Act).  

Under the Act, officers hold a separate, positive duty to exercise due diligence to ensure persons conducting the business or undertaking comply with their workplace health and safety duties. The maximum penalty that can be imposed on an officer is $300,000.

The Regulator alleged that Mr Al-Hasani was an officer of Kenoss and had failed to meet the due diligence standard expected of him under the Act in respect of the Kenoss' health and safety compliance obligations. 

The decision

The Court found that although Mr Al-Hasani was:

• the project manager responsible for the project;
• fully aware of the risk posed by the overhead wires; and
• did not exercise due diligence in respect to safety compliance,

that he was not an officer under the Act.

In making the finding, the Court said"…the concept of an officer should be reviewed through the prism of the organisation as a whole rather than a particular function in which the individual was engaged". Further, although Mr Al-Hasani reported to the general manager and a director of Kenoss in a relatively flat organisational chart that:

• he did not have control or responsibility for the overall business or undertakings of Kenoss - rather he had operational responsibility for the delivery of specific contracts which had been entered into;

• he did not participate in making decisions that affected the whole or a substantial part of the business and there were clear limits on his participation in decision making - for instance, he did not influence decisions involving the commitment of corporate funds, the types of contracts pursued by Kenoss or the hiring or firing of employees; and

• his participation in the business was operational rather than organisational.

As the Court found the Mr Al-Hasani was not an officer, the charges against him Mr Al-Hasani were dismissed.

Summary

While this area of the law is still developing, the decision provides some welcome guidance in determining who is an officer under WHS legislation. 

When reviewing their WHS compliance obligations, businesses should:

• identify officers of the business for the purpose of WHS legislation and considering, amongst other factors;

- the person's role in the business as a whole, rather than just their function or the project in which they are engaged;

- if the person undertakes organisational responsibilities rather than operational; and

- the person's sphere of influence in the decision making of the business against those who have control over the business and make decisions that affects the whole or a substantial part of the business;

• ensure officers understand their duties and due diligence obligations for the purposes of WHS;

• ensure officers have the tools and training to undertake and discharge their due diligence obligations; and

• amend any relevant policy and procedures to ensure currency, including reporting obligations and responsibilities.

If you would like to know more about this case, please contact National Workplace Lawyers on  +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.