Directors have always been in the firing line in WHS
prosecutions. More recently though, with the introduction of the
model WHS legislation, "officers" have also been placed
in the spotlight. And now, following the death of a worker, the
first officer has been charged.
Officers are expressly required to exercise due diligence to
ensure that a company complies with its obligations under the
legislation. Due diligence includes gaining an understanding of the
risks faced in the organisation; acquiring up-to-date knowledge of
WHS matters; ensuring appropriate resources are available to
eliminate or minimise risk; that there is a process for receiving,
considering and responding to information regarding incidents,
hazards and risks; and verifying that risks and hazards are being
So just who is an "officer"? Well, under the model WHS
legislation, we're directed to the definition of that term
under the Corporations Act. This includes "a person who makes,
or participates in making, decisions that affect the whole, or a
substantial part, of the business or undertaking".
Has the potential to have pretty broad reach, doesn't
This week, following the death of a worker in the ACT, Kenoss
Contractors Pty Ltd was charged for failure to comply with its
health and safety duties. A senior manager, alleged to be an
"officer" under the legislation, was also charged. The
charges laid are category 2 offences, meaning the company and
manager face maximum penalties of $1.5 million and $150,000
The matter is yet to be heard, so it remains to be seen what, if
any, penalties will be imposed, and significantly, whether the
issue of whether the senior manager is in fact an
"officer" will be subject to contest.
So watch this space. But in the meantime, certainly a timely
reminder to make sure that your organisation has identified all
"officers" for the purposes of the WHS legislation, and
brought them up to speed on their obligations.
Sounds like something worth getting right.
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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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