Officer duties: do they apply to you?

Do you know who is considered an officer in your business or organisation under Australian WHS laws? The term ‘officer’ carries a broader definition than just whoever is the company’s director, lawyer JACKSON INGLIS explains.

An officer does not need to be called Director, Work Health and Safety (WHS) Manager/Officer or be in a senior management role. Who is an officer under WHS laws (industrial manslaughter laws are a separate discussion) will ultimately be determined by the facts and circumstances in question, and may change. People who provide advice and participate in decision-making processes in a managerial sense can be caught by the definition. So you may be an officer under WHS laws if: you are a director or secretary of a business/corporation; you make or participate in making decisions that affect the whole or part of a business; you can significantly affect a business/organisation’s financial standing; or the directors often act on your instructions or wishes.

If you think you may be an officer, here are some key questions to ask yourself: what are the risks we have in carrying out our business or undertaking, what controls are in place to address those risks, are those controls reasonably practicable, how do I know this and can I verify it? Officers must take reasonable steps to exercise due diligence to ensure a business or organisation complies with its WHS duties. By exercising due diligence, the officer discharges their legal duties — protecting workers and other persons against harm to their health and safety at work.

Due diligence means taking reasonable steps to: understand and keep up to date with WHS issues; know the business, including WHS hazards and risks within it; ensure the business has the right resources and processes in place, and uses these to eliminate or minimise WHS risks; ensure the business has the right processes to receive and respond to reports of incidents, hazards or other WHS issues, and process to comply with other WHS duties; and verify that the processes and resources are being used to address the risks.

In addition to potentially being held responsible for causing harm to a worker, failing to exercise due diligence may result in fines, a criminal conviction and even jail time in the most serious cases. An officer can be personally found guilty and convicted of an offence under the WHS laws whether the business/organisation they work for is convicted or found guilty of a breach of the WHS laws.

Jackson Inglis is a Partner at Sparke Helmore Lawyers, an NSCA Foundation partner.

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Case study: Dreamworld

The Dreamworld case was Australia’s worst theme park accident since 1979. The incident involved four adults who were killed when their raft overturned on the Thunder River Rapids ride at Dreamworld in October 2016. Two children were thrown from the raft and survived.

A Coroner’s Inquest into the Dreamworld incident has been adjourned, with the final report expected soon. The scope of that report will examine a number of things including the circumstances and causes of the incident, the sufficiency of the training provided to the staff, and the safety measures and maintenance protocols of the ride.

No doubt the relatives of the victims also have some serious questions about the theme park operator’s approach to safety, as well as the executive decisions that may have been made about the measures that were put in place and resources applied to manage safety on the ride, which for now remain unanswered.

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Top image credit: ©stock.adobe.com/au/alotofpeople