A harmonised set of Work Health and Safety laws were introduced across Australia in 2012, and now cover all state and territory jurisdictions, except Victoria and Western Australia. One of the features of this legislative change has been the introduction of an obligation on persons in management positions to be proactive in ensuring that businesses and undertakings comply with their health and safety obligations. The legislation imposes this obligation on what it calls “officers” of businesses or undertakings.
The term “officer” is defined as including a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business or undertaking. On the surface of the definition, most “managers” would appear to meet this threshold. However, the Court in McKie v Muni Al-Hasani, Kenoss Contractors Pty Ltd (in liq)  ACTIC 1, the first decision explaining the meaning of an “officer” under the WHS laws, highlighted the importance of the role of the individual in the wider organisational structure of the business or undertaking when making any such determination.
In that case, the Court found that although the manager in question, Mr Al-Hasani, had, amongst other things, operational responsibility for the implementation of specific contracts, participated in management meetings, liaised with customers, engaged with safety management plans, managed the performance of the projects team and monitored the progress of projects, his role did not rise to the level of an officer under the WHS laws.
The case is therefore a useful reminder that:
- not all “managers” will be determined by the Court as an officer under the WHS laws; and
- employers should review their corporate management frameworks to ensure the officers in their organisation are appropriately identified and are aware of their due diligence duties.
For more information about this case please visit Australia: Landmark Decision under the WHS laws – Meaning of “Officer” Explained and Record $1.1 Million Fine Imposed