Pre harmonisation there was a liability on people who own or manage an organisation or business – attributed liability which could be CEOs, Senior Managers or even Line Managers. If prosecuted defences could be that you were either not in a position of influence in relation to the breach, or you used all due diligence to prevent the breach. You had to prove one of these and you were guilty until proven otherwise.
We will get to the definition of an officer in a minute. What is interesting here is that under these new laws an Officer of a PCBU may be convicted or found guilty of an offence regardless of if the PCBU has been convicted. This is big news ladies and gentlemen! Officers will need to show leadership in health and safety and in particular in the organisation’s health and safety performance and Officers will need to prove that they have taken steps to ensure the organisation has complied with and continues to comply with its legal obligations.
We all know there are health and safety laws in place, but this new stuff about Officers is a no hands in pockets law. Decisions need to be made, directions need to be given and resources need to allocated and these decisions and actions are in the hands of those officers of the PCBU.
In a nutshell the duty of the Officer is to ensure the PCBU (the entity) complies with the legislation. This WHS Act holds Officers personally liable for failing to meet their corporate governance responsibilities of preventing a breach of the Act by the organisation.
Definition of an Officer
Under the WHS legislation an Officer is a person:
- “who makes or participates in making decisions that affect the whole, or a substantial part, of the business of the corporation or who has the capacity to affect significantly the corporations financial standing. It includes an Officer of the Crown under section 247 of the Corporations Act or section 252 being a public authority (apart from elected members of a local authority).”
Note that if you are a partner in a partnership you are not an officer and you are off the hook. You can’t delegate this duty and you have to prove due diligence. Specifically you need to do the following:
- Keep up to date knowledge of health and safety matters – understand the trends, best practice, industry standards and legislative requirements. Read the safety reports and know what is happening at a shop floor level
- Gain an understanding of the nature of the operations of the organisation and the hazards and risks associated with it – you should know what your top risks are and what’s being done about them, you should know what the organisation needs to do meet compliance with these risks
- Ensure there are appropriate resources and processes in place for receiving and considering information about incidents, hazards, risks and responding timely. If you are in a high risks industry, obviously you’d need more resources than a low risk environment. You also need to develop things like a safety management system, policies, procedures and safe work procedures and investment in controlling hazards and auditing and improvements of existing processes
- Ensure processes are in place for compling with the duty or obligations
I like to call the above a managers ‘Safety CV’. A list of things you need to do, which all add to your due diligence compliance. What’s interesting is that ignorance is not a defence. For you to say “but…I didn’t know” doesn’t work with traffic police, and it now doesn’t work with workplace health and safety.
The major difference with these new laws is this broader duty to ‘officers’ rather than just Directors and Managers. The definition of the officer and what due diligence actually means has been clearly defined.
So things that you should consider:
- Review your OHS Management System to ensure compliance, including operational procedures such as hazard reporting, risk management and incident reporting (systems are my favourite area)
- Ensure Officers are defined in your system and these officers are identified – give them training so they know what to do
- Make sure that your identified Officers have appropriate levels of responsibility and accountability and will be able to demonstrate adequate due diligence. This due diligence needs to be documented.
So there we have it……not only Directors need broad shoulders, but a whole new level of people now need to get involved instead of pointing the finger. This is a new ball game for those who fall under the Officer definition and gone are the days of relying on the Safety Manager for everything. I think this can only lead to position things in the world of Safety.