Who is an “officer” under the Act and who is not, understanding due diligence, and do volunteers officers have a duty of due diligence.
An officer is a person who holds a very senior leadership position and has the ability to significantly influence the management of a PCBU. Organisations can have more than one officer.
- company directors (even if they do not have ‘director’ in the title)
- any partner in a partnership (other than a limited partnership)
- any general partner in a limited partnership
- any person who holds a position comparable to a director in a body corporate or an unincorporated body
- any person who exercises significant influence over the management of the business or undertaking (such as the Chief Executive).
Every officer has a duty – it is not a joint duty. Officers have a duty because they make policy and investment decisions that can affect workers’ health and safety. People in senior leadership positions have an important role in leading health and safety culture throughout a PCBU.
People who provide health and safety or other advice, or make recommendations to senior leadership are not officers solely on this basis.
Some examples of people who are not officers (unless they also fall into one of the officer categories described above) include:
- health and safety managers
- team leaders, line managers and supervisors
- workplace health and safety officers and advisors
- people that have ‘officer’ in their job title, such as Corrections Officer, Police Officer or Administration Officer.
Bill, Anne and Alan are on the Board of Directors of Endless Aisles Supermarkets. Together they make decisions about strategies and policies such as spending and investment. They determine the annual health and safety budget and sign off large purchases of safety equipment.
Bill, Anne and Alan are all officers because they are directors of the Endless Aisles Supermarkets business.
Officers must exercise due diligence to make sure that the PCBU complies with its health and safety duties. They must exercise the care, diligence and skill a reasonable officer would exercise in the same circumstances, taking into account matters including the nature of the business or undertaking, and officer’s position and nature of their responsibilities.
What is required of an officer will depend on the officer’s particular circumstances, such as their responsibilities and ability to influence and control.
In many organisations it is not practical for officers to be directly involved in the day-to-day management of health and safety. However they are still required to take reasonable steps 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 PCBU and generally of the hazards and risks associated with those operations.
- Ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking.
- Ensure that the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under HSWA.
- Ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information.
- Verify the provision and use of the resources and processes referred to above.
Officers of large PCBUs cannot rely on the fact that their organisation has a health and safety management system in place. They should understand how it works, and take steps to make sure it is working. In smaller PCBUs, officers are more likely to have a hands-on role in health and safety. They might talk directly with workers, supervise health and safety practices and investigate incidents.
Officers that only have a passive role or interest in work health and safety are not taking ‘reasonable steps’.
Officers (directors, board members, trustees, chief executives), have a duty to carry out due diligence to ensure the PCBU meets its health and safety obligations. An officer can be held liable for a failure to meet this duty.
The duty of due diligence includes:
- taking reasonable steps to keep health and safety knowledge up-to-date,
- understanding the PCBU’s operations and the risks associated with those operations, and
- ensuring and verifying that the PCBU has appropriate resources and processes to meet its duties.
However volunteer officers, and other certain officers, are exempt and cannot be held liable if they fail in their due diligence duty. A volunteer is defined in HSWA as meaning a person who is acting on a voluntary basis (whether or not that person receives out-of-pocket expenses).
However, it’s important to note that the PCBU still has a duty of care to ensure, so far as is reasonably practicable, the health and safety of its workers. This is a separate and different duty to the duty of due diligence for individual officers.