The Case of Brett McKie v Al-Hasani & Kenoss Contractors Pty Ltd 2015 offers guidance on how to exercise due diligence as an officer under model WHS Act 2011.
(Applicable to all states and territories other than Victoria and Western Australia)
First and foremost, an officer of a Person Conducting Business or Undertaking (PCBU) is:
1. An officer as defined by section 9 of the Corporations Act 2001 (Cth) which includes: a director or secretary. In some cases middle and senior management could be classified as an officer. We offer more information from case law definitions below.
2. An officer of the State, Commonwealth or another States
3. An officer of a public authority that is a body corporate or local government, other than an elected member of a local government acting in that capacity
In order to exercise due diligence, officers are required to take reasonably practicable steps to:
1. Acquire and keep up to date knowledge of WHS matters
2. Understand the nature of the business operations and its particular hazards and risks
3. Ensure sufficient resources and processes for risk elimination, or mitigation, and controls are utilised
4. Ensure timely response to information about incidents, hazards, and risks
5. Ensure compliance with WHS duties and obligations
6. Verify all the above.
Judicial decisions on the above case presents an important reminder that an officer must make, or at minimum participate in making decisions that affect the whole or a substantial part of the business.
Case law suggests that a person’s ability and authority to make decisions, exercise control and authorise the substantial use of capital expenditure is relevant to the determination of whether a worker is by definition an officer of the business.