Most Australian OHS Acts extend liability to officers for breaches by the company of which they are an officer that are attributable to a specified action or failure on the part of the officer.
The OHS Act in SA places a positive duty on specified officers to ensure that the company complies with the Act. That Act provides for the appointment of a ‘responsible officer’ with the specific duty to take reasonable steps to ensure that the company complies with its obligations under the Act.220 In the absence of that appointment, all ‘officers’ of the corporation have the duty. In addition, all officers may be guilty of an offence where a contravention by the corporation is attributable to a failure of the officer to take reasonable care.221
A variation on this approach is taken in the Tasmanian OHS Act where the employer is to appoint a ‘responsible officer’ for each workplace at which the employer carries on business.222 That person is responsible for performing the duties of the employer at the workplace.223All officers may also be guilty of an offence where the company contravenes a provision of the Act, unless the officer is able to prove a defence (either lack of knowledge of the contravention or the exercise of due diligence).224
All Australian OHS Acts provide, in effect, for officers as those who are involved in decision making affecting the conduct of the business of the organisation as a whole, but they differ as to how far down the management chain the definition of officer may extend. Some OHS Acts follow the definition of ‘officer’ in the Corporations Act 2000 (Cth).225Others define ‘officer’ in different ways, which include:
executive officers (Qld Act);
directors (NSW, WA and Tas Acts);
persons concerned in management of the corporation or making decisions that affect the whole or a substantial part of the corporation (NSW Act);
secretary (WA Act); and
members, if the entity is controlled by members (WA Act).
In Victoria, the definition of an officer also applies to those involved in a similar manner in the management of an unincorporated association or partnership, but officers who are volunteers of a company or other specified entity are not liable to be prosecuted.226
Some OHS Acts make company officers automatically liable for company breaches, providing that an officer has committed the same offence as the corporation, unless the officer proves a relevant defence227 (e.g. exercise of due diligence or lack of influence).
Other OHS Acts provide for a breach by the officer where the offence by the corporation was attributable to an act or omission of the officer.228 The prosecution must prove the relevant act or omission of the officer, and that the offence of the corporation was attributable to it. In WA, the officer must be shown to be guilty of wilful neglect, consent or connivance – that is, the officer knew of the relevant matters and either caused or permitted the offence to be committed by the corporation.229In other OHS Acts, the prosecution must prove the offence by the corporation was attributable to the failure of the officer to exercise reasonable care.230
Maxwell recommended that each officer of a company have a positive duty, whereby the officer must take reasonable care to ensure that the company complies with its duties under the Act..231This recommendation was not adopted by the Victorian Government when drafting the current Vic Act. Maxwell also recommended that an ‘officer’ be defined using the definition contained in s.9 of the Corporations Act 2000 (Cwth) in addition to an officer meaning ‘a person concerned in the management of the body corporate’.232 While the recommendation relating to the use of the Corporations Act 2000 (Cwth) definition was adopted, the additional element was not.
On the other hand, the Stein Inquiry did not support adopting the definition in the Corporations Act 2000 (Cwth) and recommended that the use of the term ‘concerned in the management’ in s.26 of the NSW Act remain. He agreed with the NSW WorkCover Review that liability of an officer should occur on a contravention by the corporation being found to be attributable to the officer failing to take reasonable care (that is, adopting the Victorian position).
The ACT Review proposed that an officer of a corporation should be liable for the breach of a duty by a corporation if that officer was reckless, was in a position to influence the conduct of the corporation and did not take reasonable steps to do so.233 This recommendation has been adopted in the new ACT Act.234
Maxwell further recommended that volunteer officers should be exempt from the officer duty.235 The Stein Inquiry, however, did not support such an exemption.236
