The role and influence a person has in a business determines if they are an ‘officer’ under WHS laws. This is different for each person and each business.
An officer is generally someone who:
- makes, or participates in making, significant decisions that affect the whole, or a substantial part, of the business, or
- has the capacity to significantly affect the business’ financial standing.
A senior officer is:
- an executive officer of a corporation (i.e. a person who is concerned with, or takes part in, the corporation’s management); or
- for a non-corporation, the holder of an executive position who makes, or takes part in making, decisions affecting all, or a substantial part, of a PCBU’s functions.
The use of the term ‘senior officer’ for the industrial manslaughter offence is intended to capture individuals of the highest levels in an organisation (those who can create and influence safety management and culture at their workplace). The rationale for capturing these higher level officers is to ensure health and safety is managed as a cultural priority within organisations and to guarantee that safety standards are managed and supported from the top down.
Examples of senior officers may include:
- a director or secretary of a corporation
- Chief Executive Officers
- Chief Financial Officers or Chief Operations Officers
- General Counsel
- General Managers
- officeholders in a unincorporated association (i.e. a club president).
In determining whether you are a senior officer for the purposes of the industrial manslaughter offence, you should have regard to:
- your position in the company (i.e. are you in senior management?)
- your ability to take part in decisions which affect the company (i.e. can you decide how money will be spent or the strategic direction the company will take?)
- your ability to influence how resources are used and what procedures are necessary (i.e. do you have the ability to make decisions about how work health and safety will be managed?)
- your ability to make decisions (i.e. is your decision making subject to a further approval process or are you the final decision-maker?)
- your reporting structure (i.e. do you report directly to a board?)
- what is the extent of your domain? (i.e. do you head the largest division and is that division a core part of the business?)
- who are your direct reports (i.e. do you have oversight of high level general managers?).
A person is not a senior officer
- A person is not a senior officer if they simply provide advice for the consideration of decision-makers or are only involved in the administration of a business process. For example, a manager or supervisor in an operational area of the business (i.e. a line manager) will not be a senior officer as the manager or supervisor administers the decisions of more senior management and do not make key decisions on how the business is managed.
Can I transfer my officer duty?
No, you cannot transfer your officer duty to someone else. You can get others to help you with WHS, but you remain responsible. You cannot delegate or use contracts to make someone else an officer for you.
How many officers can a business have?
More than one person can be an officer within the same business – it will depend on how many people meet the definition. Where there is more than one officer, each officer shares responsibility but each must meet their WHS duty.
Does an officer need to be a paid employee?
No, it doesn’t matter whether you are a paid employee or not. If you meet the definition, you need to fulfil your duty as an officer