Just tell me, “am I an officer” for work health and safety?
Many of our clients have been asking questions about what a recent case in the Industrial Court of the Australian Capital Territory means to them and their organisation.
The case involved the death of a worker who was electrocuted when the tip truck he was driving contacted live overhead power lines at a construction site in Turner in the A.C.T. 0ne of the defendants charged, amongst others, was a project manager, Mr Munir Al-Hasani, who was prosecuted for being “an officer” and was alleged to have failed to exercise due diligence to ensure his organisation complied with its work health and safety obligations.
With respect to the allegation against Mr Al-Hasani, the case was dismissed by the court. Simply put, the prosecution (who was the Department of Public Prosecutions on behalf of the WorkSafe ACT) failed to prove Mr Al-Hasani was an officer of the organisation he was employed by. In other words, the prosecution chose to summons him for the wrong offence. Had the prosecution charged Mr Al-Hasani with an allegation of failing in his duty as a worker1 or a person who had management or control of workplace2 the result against Mr Al-Hasani may have been much different.
So what does this mean for you and your organisation?
There are several important messages for organisations and their officers and managers to take away:
- It is important that you identify who the officers are in your corporation. The definition of an officer is contained insection 9 of the Corporations Act, 2001 (C’wth). This definition is critical and is not only relevant for work health and safety but for any obligation placed on officers.
- I recommend you consider obtaining legal advice to determine who the officers are in your corporation. Lawyers hold insurance for the legal advice they provide, which in turn is another layer of protection for their clients if damages are occasioned following incorrect legal advice.
- I am aware that some organisations have sought to identify its officers under legal privilege, meaning that they do not wish to disclose who the officers are outside of the organisation or their legal adviser. If a Regulator wishes to take action against an officer of an organisation (as in the above case with Mr Al-Hasani) the onus is on the Prosecution to prove that the individual they have summoned before the court is an officer. Other organisations are comfortable to identify who the officers are in their WHS management system and discoverable by others including other corporations with whom they engage.
- Ensure your officers receive ‘WHS due diligence for officers’ training so they clearly understand their obligations/duty as officers. Rather than a purely legal presentation (focussing only on the law) ensure the training is delivered by a presenter who can interpret the practical implications of the law in the context of your organisation’s structure, operations and risk profile.
- Consider whether the executive and Board WHS reporting is adequate for your officers to demonstrate they are exercising due diligence. Does the reporting identify where the weaknesses are in the organisations safety system? And when weaknesses are identified, what action and delegation is taken by the officers to ensure the improvements are being actioned?
For anyone interested in reading the full decision Follow this link.
1Brett McKie v Munir Al-Hasani & Kenoss Contractors Pty Ltd  ACTIC 1
2Refer to section 28 of the Work Health & Safety Act, 2011 (ACT)
3Refer to section 20 of the Work Health & Safety Act, 2011 (ACT)