The Health and Safety at Work Act 2015 (HSW Act) places new
stand-alone duties on an officer, so that a director or officer can
be charged independently of the person conducting a business or
Officers of a PCBU include the directors of a company and
partners of a partnership, and for other types of business, people
in a similar role. An officer also includes any other person
occupying a position that allows them to exercise significant
influence over the management of the business, such as a chief
executive, but does not include a person who merely advises or
makes recommendations to the management team.
Whether or not someone will be considered to be an officer is
therefore not completely clear cut. A recent case in Australia
(Mckie v Al-Hasani and Kenoss Contractors Pty Ltd (in liq) 
ACTIC 1) under a comparable provision decided that a person will
not be an officer if they only have operational responsibilities
and do not have any corporate obligations such as the capacity to
engage contractors or commit corporate funds. It is not sufficient
to have full control over a project or contract; rather there must
be control or responsibility for the business or undertaking as a
WorkSafe has confirmed that it does not consider that people who
provide health and safety or other advice, or make recommendations
to senior leadership are officers. It has provided examples of
people who are not officers (unless they also fall into one of the
officer categories described above) including:
health and safety managers
team leaders, line managers and supervisors
workplace health and safety officers and advisors
people who have "officer" in their job title, such as
Corrections Officer, Police Officer or Administration Officer.
These people are not considered to be officers as they do not
generally make, or participate in making, the key decisions of the
operation of the PCBU.
Any person who is an officer must exercise due diligence to
ensure that the PCBU complies with its duties and obligations under
the HSW Act. This obligation applies to all directors and officers,
whether or not they have day-to-day knowledge by also acting in a
management or operational role, or are in a true governance
The rationale for the duty is that officers, by their behaviour
and decisions, can strongly influence the health and safety culture
within a business. It is hoped the change will force directors and
officers to be aware of and address the risks created by the
businesses they are involved in, resulting in a "top
down" effort to improve health and safety culture.
It is likely that the prosecution of officers will become more
common under the new HSW Act. However, that doesn't mean that
everyone who is an officer needs to worry.
In a decision released last month in Australia, SafeWork v
Omega International Coatings Pty Ltd and Shetty  NSWDC
11, charges against an officer were dismissed.
This case involved charges against both a company and its
director. An employee of the company was decanting highly flammable
liquid from one container into another when it ignited, causing a
The company had hired experienced workers, provided intensive
training and written safety manuals, obtained independent hazard
analyses, and employed a qualified chemist who developed risk
assessment procedures including a decanting work procedure. The
court decided that while the company was vicariously liable for the
"casual act of negligence" of the employee, it was
"difficult to see what more Mr Shetty could have
This case clearly shows that if a director or officer ensures
that proper processes are put in place and monitored, then he or
she should have little to fear.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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).
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).