This term "Officer"

Weekly WHS Article 4th April 2024

When talking about the highest level of management people in a business, those individuals who are entrusted with significant decision-making authority and set company goals, create initiatives, and oversee the running of the business, are termed “officers.” 

This term is defined and explained fully in Section 9 of the Corporations Act 2001.

Who is an "officer?"

In actuality, “Officers” are business owners and company directors, such as CEOs, COOs, CFOs and executives that are in charge of the business. A business is a "name on paper." The term used in the Model WHS Laws to describe a business is “Person Conducting a Business Or Undertaking.” (Person in this context means business entity, not a human being.) While a PCBU is a "thing", Officers of a PCBU are most definitely human beings.

Officers ensure the business meets its legal obligations

Under the WHS Act, officers have specific duties. They must ensure, among other things, that the business is demonstrating a “duty of care” with evidence to prove it. This is different from “duty of care” that applies to individuals under Common Law, which is the duty to render assistance when there has been an accident or a disaster or when someone would be morally expected to help out or step in to help avert circumstances that might be life threatening to others. This obligation applies to every human being in society. This is a different meaning of “duty of care.”

Officers may be prosecuted personally

In an employer-employee scenario the duty of care obligation is the primary duty of every business or undertaking. No other WHS duty holder has the primary duty of care obligation. Officers, being actual people, must go about their activities as managers of and representatives of the business with these obligations always in mind. While an officer need not be involved directly in implementation and day-to-day management, they must take reasonable steps to verify that those resources, processes and procedures are provided and used. An officer may be prosecuted personally for failing to meet their duty, whether or not their PCBU has also been convicted or found guilty of an offence. This means the failure of an officer does not need to be tied to any failure or breach of the PCBU for the officer to be prosecuted.

When is an officer not an "officer"

Sometimes the term “officer” can be confused. Some businesses have “Safety Officers” and “HR Officers” or variations of such positions with the word “officer” in the title. These people are not directors or CEOs, they are managers and team leaders. Under the WHS Act, supervisors and managers at this level are classified as “workers.” They manage the people doing the work and report to the senior management or depending on the size of the business may even report directly to the director, CEO of GM of the company. “General Manager” is another term to be aware of. A “GM” is not necessarily the GM of the company but could be a “GM of Health and Safety” or “GM of Operations” etc. That type of GM is not a Director or CEO. They are not an officer if they are not in a position to make major decisions for the business as a whole.

This is a little gem from one of our WHS trainers from years ago about this. Let me share it with you:

“For some businesses where there are managers and supervisors that have the word “officer” in their title (such as “Safety Officer” or “WHS Officer”), rather than use same word to describe the “officers” of the business, to reduce any possibility of confusion instead use “director”, or “CEO” etc. Avoid using the word “officer” when the business has “officers” who are not in fact “Officers.” Keep it simple. If they don’t know, we will teach them on the course. That’s what we do.”

Officer duties 

Officers have corporate governance responsibilities and, through their decisions and behaviour, strongly influence the culture and accountability of the business or undertaking. They can influence important decisions on the resources that will be made available for health and safety, and the policies that will be developed to support compliance by the PCBU with the WHS laws. Section 27 of the WHS Act gives Officers specific duties that apply to the management of workplace health and safety. Each of the elements support accountability, allocation of resources, and development and implementation of appropriate policies for a healthy and safe work culture.

Worker duties

Workers have duties under WHS law too. They don’t have the “duty of care” obligation that applies to the business in the first place, but they do have the “duty to reasonably comply” with appropriate direction and supervision from managers and supervisors. Workers must also keep an eye out for the welfare of their fellow workers and any visitors to the workplace. They cannot stand back and let someone do something reckless or be unsafe in their work. This is covered in Section 28 of the WHS Act.

Every WHS duty holder must know their duties.

A clear understanding of “who is an officer” can be one of the first valuable lessons a person learns when learning about WHS law. The structure of WHS law is actually very simple. It can be learned easily as it is laid out in a logical sequence. We do that training.

One of the first things a director or CEO needs to know and be clear on are their legal obligations in managing their business. This includes their obligations to provide the WHS management system and ensure the health and safety of their people. This is very important knowledge. Being trained in this so you know how to do the right thing is your “get out of jail card.”

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066.

4th April 2024

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