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Excuse me, officer? Court considers who is an ‘officer’ under the WHS Act

Not all management employees will qualify as an ‘officer’ for the purposes of the model Work Health and Safety Act (WHS Act), according to a recent ACT decision.

In Mckie v Al-Hasani and Kenoss Contractors Pty Ltd [2015] ACTIC 1, Mr Al-Hasani was the project manager for Kenoss Contractors Pty Ltd (Kenoss) when a fatality occurred on site. Mr Al-Hasani was charged with breaching his officer duties under section 27 of the WHS Act (ie not exercising the required due diligence).

Although the Court found that Mr Al-Hasani did not exercise due diligence in respect to safety compliance, the Court considered whether Mr Al-Hasani was actually an ‘officer’ and had such a duty under section 27.

In determining whether Mr Al-Hasani was an ‘officer’ for the WHS Act, the Court focused on one sub-component of the Corporations Act definition of ‘officer’, asking whether Mr Al-Hasani was a person who, among other things, ‘makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation’. The Court interpreted this with reference to ‘the organisation as a whole rather than a particular function in which the individual was engaged.’

In providing evidence regarding his role and decision making powers, Mr Al-Hasani demonstrated that he did not participate in the decision making for the whole of the organisation. For instance, Mr Al-Hasani:

  • reported to Kenoss’ director and the general manager;
  • was not responsible for recruiting employees or terminating their employment;
  • did not have the authority to commit corporate funds; and
  • did not determine the work Kenoss tendered for, or sign off on the tender documents.

The Court found that Mr Al-Hasani ‘undertook all of the work one would expect of a project manager’ and was not in a role that resembled an officer. It was determined that Mr Al-Hasani’s role was operational and that ‘he had operational responsibility for delivery of specific contracts which had been entered into’ by Kenoss.

Ultimately, the Court found that Mr Al-Hasani was not an officer for the purposes of the WHS Act and the charges were dismissed.

What does this mean for your managers?

This decision indicates that not all managers are officers for the purposes of the WHS Act. Within your business, a manager may be considered an officer if the manager’s decisions go beyond decisions relating to their role or department and affect at least a substantial part of the business. It is unlikely that middle managers will be officers and in most circumstances, only the executive leadership team and directors will have due diligence obligations.

Photo credit – www.flickr.com

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