Who is an Officer under New OHS Laws?

New Harmonised OHS laws have been introduced in Australia from January 2012. The laws bring with them certain new definitions. One is the term – “Officer”.  So – how do you know if you are an Officer in the eyes of the new OHS Act?

Under the new Harmonised OHS Act an Officer is a senior executive or manager who makes—or participates in making—decisions that affect the whole, or a substantial part, of a business or undertaking (PCBU). Officers have a positive duty to be proactive and continuously ensure that the business or undertaking complies with relevant duties and obligations

“Officer” has the same meaning as under the Corporations Act 2001 (Cth) (ie: a person who has capacity to influence the decisions and management of the company). “Officer” includes directors. No distinction is made between executive and non-executive directors.

The new section 26 of the amended OHS Act replaces the former deemed liability provisions. Liability is no longer automatically attributed only to directors and managers. Instead, the new section 26 provides that if a corporation has a duty or obligation under the Act, an officer of that corporation must exercise due diligence to ensure that the body complies with that duty or obligation. There are definitions under “Relevant provisions” around the general duties relating to health, safety and welfare at work.

There are three kinds of officer of a PCBU under the WHS Act:

  1. An officer within the meaning of section 9 of the Corporations Act 2001 other than a partner in a partnership (usually non-Commonwealth licensee PCBUs).
  2. An officer of the Commonwealth (the Commonwealth is the PCBU).
  3. An officer of a public authority (such as Government Department).

 Officers of a person conducting a business or undertaking (PCBU) with a duty or obligation under the Work Health and Safety Act 2011 (Cth) (WHS Act) must exercise ‘due diligence’ to ensure that the PCBU complies with that duty or obligation.

Now here is a most important issue for Officers – due diligence is defined to include taking reasonable steps in relation to:

  • acquire and keep up to date knowledge of work, health and safety matters;
  • gain an understanding of the nature of the operations of the business or undertaking of the body and generally of the hazards and risk associated with those operations;
  • ensure that the PCBU has available for use, and uses, appropriate resources and processes to enable hazards associated with the operations of the business or undertaking of the body to be identified and risks associated with those hazards to be eliminated or minimised;
  • ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards and risk and responding in a timely way to that information;
  • ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the body under the OHS Act;
  • verify the provision and use of the resources and processes referred above acquiring and keeping up to date knowlegde of health and safety matters
  • verifying all of the above.

With the introduction of these new responsibilities come onerous financial penalties and even the threat of jail. OHS fines for corporations are now a maximum of up to $3,000,000 and the maximum fine for a director or officer is $600,000. Most boards are now introducing Safety Management Systems that capture and cover off their due dilligence responsibilities. And OHS has become a regular agenda item at the highest level of governance.

About the Author

Safety Concepts is an online resource providing up to date insights and covering issues in the field of Workplace Safety.

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