Australia: Who is an officer under WHS laws?
Last Updated: 16 June 2012
Article by Mark Curran

The Work Health & Safety Act 2011 (Qld) (the Act) imposes a discrete obligation on officers of persons conducting a business or undertaking (PCBU). In short, such officers must exercise due diligence to ensure the PCBU complies with their duties and obligations under the Act.

However, the Act does not contain an extensive definition of the term "officer" and simply refers to the Corporations Act 2001 (Cth) (the Corporations Act) for the definition. The Corporations Act provides an officer is a person who:

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

There is no case law interpreting the Act yet. However, the case law interpreting this definition in the Corporations Act demonstrates the following principles are relevant in determining who an officer is:

  • a person who undertakes activities which involve policy and decision-making affecting the whole or a substantial part of the corporation, or have a significant bearing on the financial standing of the corporation
  • the person does not have to be on the board or an executive in communication with the board (in large companies)
  • the frequency with which the person carries out managerial functions is relevant. Day-to-day, routine functions are not
  • participation in decision-making must be more than an administrative arrangement; there must be a real contribution to the making of decisions
  • the seniority of the person within the company is relevant, as is the ability to take part in decisions which affect the company's business at a high level.

The following factors are also relevant:

  • authority for high expenditure
  • reporting directly to the board
  • participation in making board decisions
  • being the head of the largest domain/section in the business
  • responsibility for own budget
  • oversight of a significant number of high level employees.

Businesses should identify who are the officers in the organisation, so that those persons can take steps to discharge their obligations under the Act. Monetary penalties that can be visited upon an officer for failing to meet their obligations under the Act can be up to AUD$300,000.

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.

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