In the first prosecution of its kind, a company officer in the
ACT has been charged under the Work Health & Safety Act
2011 (ACT) (WHS Act).
Mr al-Hasani (Officer) of Kenoss Contractors Pty Ltd (the PCBU)
has been charged by WorkSafe ACT over an incident that resulted in
the death of a worker in March 2012. The PCBU has also been
This case demonstrates that WHS regulators are prepared to
prosecute individuals in senior management roles about workplace
incidents, if they fail to satisfy their officer obligations under
the WHS Act.
It provides an important reminder to senior managers that they
have an individual responsibility to ensure reasonably practicable
steps are taken to maintain a safe work environment, and are
potentially liable when accidents occur in the workplace.
In March 2012, Michael Booth, a 48 year old truck driver engaged
by the PCBU, died from electric shock injuries sustained at a
worksite in Turner, ACT. Mr Booth was operating a tip truck when
the elevated trailer made contact with a power line while
off-loading gravel at a dumping station.
The charges against the Officer
The Officer faces two charges under s 32 of the WHS Act for
failing to comply with a health and safety duty. Section 32
provides that a person commits a category 2 offence if that person
has a health and safety duty that they fail to comply with, and
that failure exposes an individual to a risk of death or serious
injury. A category 2 offence carries a maximum penalty of $300,000
for an officer.
The Officer's obligations
Under s 27 of the WHS Act, the Officer was required to exercise
"due diligence" to ensure the PCBU complied with its
obligations. The primary duty of care that the PCBU owed to the
worker, under s19 of the WHS Act, required it to ensure, so far as
reasonably practicable, the health and safety of its workers while
at work, including the provision and maintenance of:
a work environment without risks to health and safety, and
safe systems of work.
The due diligence steps that the Officer was required to take to
ensure the PCBU complied with its s 19 obligations, include to:
acquire and maintain up-to-date knowledge on WHS matters
gain an understanding of the nature of the PCBU operations and
the hazards and risks associated with those operations
ensure the PCBU has, and uses, appropriate resources and
processes to eliminate or minimise risks
ensure the PCBU has appropriate processes for receiving and
considering information on incidents, hazards and risks, and
responds in a timely way to that information, and
ensure the PCBU implements processes for complying with its
obligations under the WHS Act.
The charges against the PCBU
The PCBU has also been charged with a category 2 offence under s
32 of the WHS Act on the basis that it had a health and safety duty
that it failed to comply with, resulting in the death of the
worker. The maximum penalty against a PCBU for a category 2 offence
is $1.5m. The charges against the PCBU and the officer are similar
and relate to a failure to maintain safe systems of work and a
failure to maintain a safe work environment without risk to health
The case so far
The Officer has pleaded not guilty to the charges in the
Industrial Magistrates Court. A preliminary question that will need
to be determined at hearing is whether or not Mr al-Hasani is
indeed an officer as defined in s 9 of the Corporations Act
2001. It is understood that Mr al-Hasani was not a director of
the PCBU, but rather a director of a related entity.
In acknowledging the charges, the ACT Work Safety Commissioner,
Mark McCabe, commented that the case sent an important reminder to
officers that they have an individual responsibility to maintain a
safe work environment, and are potentially liable for incidents at
work that pose a risk to health and safety. The targeting of senior
managers sends a strong warning that liability for safety matters
may not rest with companies alone, but also with senior managers.
This is in line with the purpose of the new laws, which were
designed to ensure that people at the highest level are personally
accountable for what happens within the company.
The case has been scheduled for hearing from 17-19 December
2014. The outcome of this case will provide important clarification
on a number of points including:
who will be deemed to be an officer for the purpose of
obligations under the WHS Act, and
the measures to which an officer has to meet to satisfy due
diligence obligations under s 27 of the WHS Act.
We will keep you informed of any developments on this important
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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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