First decision provides guidance on who is an ‘officer’

The recent decision of the ACT Industrial Magistrates Court provides some guidance in considering who is an ‘officer’ under the Work Health and Safety Act 2011 –Brett McKie v Munir Al-Hasani & Kenoss Contractors Pty Ltd (In Liq) [2015] ACTIC 1, This is the first case considering this issue since the new work health and safety legislation was introduced.

The case concerned the electrocution and death of an employee of a sub-contractor who was delivering materials to a storage site managed by Kenoss Contractors Pty Ltd (Kenoss). The electrocution occurred when overhead powerlines made contact with the sub-contractor’s truck.

Mr Muni Al-Hasani, the project manager, was charged in his personal capacity as an officer of Kenoss under s 27(5) of the Act for failing to exercise due diligence in safety compliance.

The ACT Industrial Magistrates Court held that Kenoss had breached s 32 of the Act by failing to comply with the duty of care it owed to the sub-contractor and its employees. However, the Court held that Mr Al-Hasani was not liable because he was not an ‘officer’ of Kenoss within the meaning of s 27 of the Act.

The Court found that there was insufficient evidence that Mr Al-Hasani had a level of control or responsibility in Kenoss that would make him an ‘officer’ within the meaning of s 27 of the Act. In the Court’s view, Mr Al-Hasani possessed only ‘operational responsibility’ for particular contracts but was not part of the decision-making process in Kenoss more generally.

The decision confirms that, under the harmonised work health and safety laws, which operate in all States and Territories except Victoria and Western Australia, individuals will be considered an ‘officer’ of a person conducting a business or undertaking (a ‘PCBU’) where they participate in decision-making that affects the organisational aspects of the business as opposed to operational aspects.