Australia: Who is an officer? ACT Industrial Court considers definition under new WHS laws

Last Updated: 7 September 2015
Article by Greg McCann

In brief - "Officer" defined as having organisational, not operational role

The Industrial Court of ACT has been the first court to consider the scope of the definition of "officer" under the work health and safety laws in Brett McKie v Munir Al-Hasani & Kenoss Contractors Pty Ltd (in liq) [2015] ACTIC 1. The decision of Industrial Magistrate Walker confirms that the definition of "officer" does not include operational roles within the business process and, instead, requires the individual to be within the sphere of an organisational role.

Truck driver electrocuted at Barry Drive Project site

In McKie, Mr Munir Al-Hasani was prosecuted under the Work Health and Safety Act 2011 (ACT) (WHS Act) as an "officer" for failing to exercise due diligence to ensure that Kenoss Contractors complied with its duty or obligation under the WHS Act.

The charge related to the electrocution of a truck driver working on the Kenoss Contractors Barry Drive Project. The electrocution occurred after the truck's bucket touched or came very close to touching low hanging electrical wires on the site.

Project manager found to have failed to ensure safety compliance

Mr Al-Hasani was employed by Kenoss Contractors as a project manager and was managing a number of projects for his employer. Industrial Magistrate Walker found that Mr Al-Hasani did not exercise due diligence in respect of safety compliance and that his failures were "multiplicitous".

In August 2008 he was served with a prohibition notice on behalf of Kenoss Contractors regarding working near power lines on another project.

Project manager prone to relinquishing responsibility for identified risks

In relation to the incident itself, Industrial Magistrate Walker found that the Safe Work Method Statement was inadequate to address the particular risk on the Barry Drive Project site and that Mr Al-Hasani had a readiness to relinquish responsibility for the identified risks to the site foreman with no process in place to ensure compliance.

Prosecution required to prove that project manager was an "officer"

However, the shortcomings of Mr Al-Hasani's safety management practices were irrelevant if he does not fall within the definition of "officer".

The prosecution was required to prove that Mr Al-Hasani was an "officer" at the time of the incident before it could successfully argue that he failed to comply with the officers' duty to undertake due diligence.

The meaning of "officer" under the WHS Act

"Officer" is defined under the WHS Act with reference to section 9 of the Corporations Act 2001 (Cth). The definition contained in the Corporations Act sets out a number of categories or roles that fall within the "officer" definition. For example, directors of a company clearly fall within the definition of "officer" because the definition includes "a director or secretary of a company". Less clear are roles that fall within the following broader definitions of "officer" provided by the Corporations Act:

A person:

  1. who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation;
  2. who has the capacity to affect significantly the corporation's financial standing; or
  3. in accordance with whose instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors of the corporation)...

"Officer" concept should be viewed in context of organisation as a whole

The leading High Court case on the definition of an "officer" under the Corporations Act, Shafron v Australian Securities and Investment Commission [2012] HCA 18, was relied on by Industrial Magistrate Walker, who observed that because the definition of "officer" in the WHS Act is imported from the Corporations Act, the interpretation should be consistent. In Shafron the High Court observed:

...the inquiry required by this paragraph of the definition must be directed to what role the person in question plays in the corporation. It is not an enquiry that is confined to the role that person played in relation to the particular issue in respect of which it is alleged that there was a breach of duty (at [23]).

Relying on Shafron, Industrial Magistrate Walker found that the concept of an officer should be viewed through the prism of the organisation as a whole and not a particular function in which the individual was engaged.

Project manager's role and responsibilities

Evidence was adduced that Mr Al-Hasani had a number of direct reports, participated in management meetings, implemented project plans and supporting plans, monitored project progress (and kept the general manager informed of the same), selected subcontractors and material suppliers and verified and signed off on the completion of projects.

Nonetheless, Industrial Magistrate Walker found that the prosecutor had not established that Mr Al-Hasani had control or responsibility for the business or undertakings of the company. Rather, Mr Al-Hasani had operational responsibility for the delivery of specific contracts which had been entered into by Kenoss Contractors.

Factors suggesting that project manager was not an "officer"

The following factors supported the finding that Mr Al-Hasani was not an "officer" under the WHS Act:

  • Kenoss Contractors was essentially a family business with a husband and wife director and general manager and a relatively flat management structure
  • Mr Al-Hasani could identify potential employees but he was not responsible for hiring or firing them
  • Mr Al-Hasani could not commit corporate funds
  • Mr Al-Hasani did not have any direction over the type, or the specific contracts pursued by Kenoss Contractors
  • Although Mr Al-Hasani prepared tenders, he did not sign off on them
  • There was no evidence about who determined the corporate structure, who established the type of work to be pursued and when projects were to be entered into
  • It was not apparent whether Mr Al-Hasani attended board meetings or met any of the corporation's legal obligations, such as ASIC returns

Safety performance improves if more staff undertake due diligence exercise

The first case on the definition of "officer" confirms that the courts will look to the interpretation of "officer" under the Corporations Act to assist them to determine what roles are akin to "officer" under the WHS Act. McKie established that a worker must have more than an operational role in the business process.

Persons conducting a business or undertaking, including companies and other organisations, should review who is classified as an officer. A broad interpretation of the "officer" definition should be adopted. This will result in more people undertaking the due diligence exercise and will drive safety performance within the organisation.

We also recommend that due diligence frameworks are reviewed to ensure that they are relevant to all officers, from non-executive directors to the general manager. All officers should also attend regular due diligence seminars to ensure that they meet the requirements of section 27(5) of the WHS Act.

For further information, please contact:

Greg McCann
Work health and safety
Colin Biggers & Paisley

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.

Authors
Greg McCann
 
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”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
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).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.