The Australian Capital Territory recently became the first
jurisdiction to charge an 'officer' under newly harmonised
workplace health and safety legislation. A senior manager faces two
charges for allegedly failing to exercise due diligence to ensure
that the company complied with its workplace health and safety
duties. The charges follow a workplace incident that resulted in
the death of a 48 year old truck driver, Michael Booth.
Mr Booth died from electric shock injuries sustained while he
was operating a tip truck when the trailer made contact with a
power line while off-loading gravel at a dumping station.
The case has significant implications for New Zealand. The
proposed Health and Safety at Work Act is closely modelled
on Australia's current legislation and is intended to come into
force in New Zealand in April 2015.
Under the proposed Health and Safety at Work Act, there
is a similar personal due diligence duty on officers to actively
manage workplace health and safety and ensure that the person
conducting a business or undertaking (PCBU) complies with its
health and safety obligations.
The concept of 'officer' includes individuals with
governance roles in an organisation (e.g. directors or partners)
and further extends to those who make decisions that affect the
whole or substantial part of the business of the PCBU.
Due diligence duties under the proposed Health and Safety at
Work Act will require an officer to be proactive in managing
health and safety in their workplace, including taking reasonable
Acquire and keep up to date with knowledge of health and safety
matters relating to the business and its activities.
Understand how the business operates and the hazards and risks
associated with those operations.
Ensure resources and processes are implemented to eliminate or
minimise risks and hazards.
Ensure appropriate processes are in place for receiving and
considering information about health and safety matters and
responding in a timely way.
Ensure that there are processes in place for complying with the
PCBUs health and safety duties.
Ensure that the above processes are verified, monitored and
Putting it another way, the due diligence obligation means that
officers will need to be proactive in managing health and safety
and not just reactive – as the common practice has been in
In the Australian case, the senior manager has pleaded not
guilty to the charges, and the preliminary question to be
determined at a hearing in December is whether the senior manager
is indeed an 'officer'. It appears that the senior manager
was not a director of the PCBU but is a director of a related
This prosecution sends three strong messages:
Workplace health and safety regulators are prepared to
prosecute individuals if they fail to meet their officer
obligations. We can expect a similar approach from the New Zealand
regulator, WorkSafe NZ.
Liability for health and safety may not rest solely with
directors but also with senior managers.
Health and safety duties can and do overlap – In the
Australian case, the PCBU has been separately charged.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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