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 undertaking (PCBU).
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 whole.
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 role.
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 large fire.
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 done".
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.
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