It is important for business owners to understand not only what an ‘Officer’ is under the harmonised Work Health and Safety Act, but also to understand what their obligations are. Specifically, an Officer of a business or undertaking is required to exercise due diligence to ensure the business or undertaking complies with its duties and obligations.

According to Safework Australia, an Officer is defined as someone who makes or participates in decision making that can have an impact upon the whole (or a substantial part) of a business or undertaking.

The term ‘Officer’ is more fully explained within section 9 of the Corporations Act. An Officer of a business may mean:

• A director or secretary of the business or undertaking; or

• A person who makes, or participates in making, decisions that affect the whole or a substantial part of the business or undertaking; or

• Who has the capacity to significantly impact the business or undertaking’s financial standing; or

• An administrator, liquidator, receiver or receiver or manager of the property of a business or undertaking (i.e. when a business or undertaking is ‘In Receivership’).

It is equally important to understand what is not considered to be an ‘Officer’ under the Work Health and Safety Act. Generally speaking, positions below the position of ‘Officer’ are not considered to be ‘Officers’ under the Work Health and Safety Act. This is because these positions generally assist decision makers (i.e. Officers) to make decisions based upon their advice and act upon instructions given by the Officers of the business or undertaking. Titles generally not considered to be ‘Officers’ under the Work Health and Safety Act or the Corporations Act include managers, supervisors and work health and safety advisors; or State, territory or Commonwealth Ministers of the Crown and elected members of local authorities.

Due Diligence
It is recognised by the legislators that persons in the most senior positions (i.e. ‘Officers’) are in the primary position to influence not only compliance with the Work Health and Safety Act, but also influence the culture of compliance within the business or undertaking. This concept is referred to within the Work Health and Safety Act as ‘due diligence’. This obligation is referred to as a positive one, meaning that the Officers of a business or undertaking are required to be able to demonstrate they have proactively met their obligations.

In order to meet their obligations of due diligence under the Work Health and Safety Act, officers are required, at a minimum, to:

• Acquire and maintain up to date knowledge of work health and safety matters pertinent to them;

• Gain an understanding of the nature of the hazards and risks associated with their operations;

• Ensure that the business or undertaking has resources and processes available to eliminate or minimise risks to health and safety from work carried out as part of their business or undertaking;

• Ensure that there are systems in place to comply with duties or obligations of the business or undertaking under the Work Health and Safety Act; and

• Ensure they verify the provision and use of resources and processes put in place to comply with duties or obligations of the business or undertaking under the Work Health and Safety Act.

Officers to be Held Personally Accountable
Failure of an Officer of a business or undertaking to exercise due diligence can result in that Officer being prosecuted personally under the Work Health and Safety Act.

Disclaimer
Moore McPhee WHS Consultants specialise in the needs of small and medium businesses. We are here to help and can provide cost effective solutions for your business. Contact us on 1300 362 351, or speak directly to our Senior Principal Consultant Vanessa Moore on 0401 382 083 or at [email protected] for a confidential discussion about your particular work health and safety needs.

Any advice and information in this article is general in nature, does not take into account particular circumstances and should not be construed as professional advice. Unless specifically stated otherwise, the information in this article is prepared for South Australian Persons Conducting a Business or Undertaking as defined in the SA Work Health and Safety Act 2012 only. The informationmay be applicable to other states of Australia that have adopted the harmonised work health andsafety legislation but is not guaranteed.

Recommended Further Reading:
http://www.holdingredlich.com/workplace-relations-safety/breaking-news-leading-judgment-explains-who-is-an-officer-under-the-whs-laws