The Work Health & Safety Act 2011 (Qld) (the
Act) imposes a discrete obligation on officers of
persons conducting a business or undertaking (PCBU). In short, such
officers must exercise due diligence to ensure the PCBU complies
with their duties and obligations under the Act.
However, the Act does not contain an extensive definition of the
term "officer" and simply refers to the Corporations
Act 2001 (Cth) (the Corporations Act) for the
definition. The Corporations Act provides an officer is a person
makes decisions that affect the whole or a substantial part of
has the capacity to affect significantly the corporation's
financial standing, or
in accordance with whose instructions or wishes the directors
are accustomed to act (excluding advice given by a person in the
proper performance of functions attaching to the person's
professional capacity or their business relationship with the
There is no case law interpreting the Act yet. However, the case
law interpreting this definition in the Corporations Act
demonstrates the following principles are relevant in determining
who an officer is:
a person who undertakes activities which involve policy and
decision-making affecting the whole or a substantial part of the
corporation, or have a significant bearing on the financial
standing of the corporation
the person does not have to be on the board or an executive in
communication with the board (in large companies)
the frequency with which the person carries out managerial
functions is relevant. Day-to-day, routine functions are not
participation in decision-making must be more than an
administrative arrangement; there must be a real contribution to
the making of decisions
the seniority of the person within the company is relevant, as
is the ability to take part in decisions which affect the
company's business at a high level.
The following factors are also relevant:
authority for high expenditure
reporting directly to the board
participation in making board decisions
being the head of the largest domain/section in the
responsibility for own budget
oversight of a significant number of high level employees.
Businesses should identify who are the officers in the
organisation, so that those persons can take steps to discharge
their obligations under the Act. Monetary penalties that can be
visited upon an officer for failing to meet their obligations under
the Act can be up to AUD$300,000.
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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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