PCBU & Officers Explained

Updated: Dec 17, 2021


We want to ensure that you understand what the term “officer” interprets as under the Health and Safety at Work Act 2015. If you are an officer, do you understand what you need to do to protect yourself?


Who is an officer?

An officer is a director of a company, a partner in a partnership or persons

in other entities occupying similar roles, such as a owner operator or sole trading business. Includes people who exercise “significant influence over the management of a business or

undertaking.” A liquidator or receiver of a company can also be an officer after appointment. Persons who merely advise or make recommendations to an officer are expressly excluded from the definition.


Officers are likely to include CEO’s, CFO’s and other members of an organisations management team depending on their level of influence over the operation of a business.


The role of an officer?

An officer must exercise due diligence and has an obligation to pro-actively

manage health and safety in the workplace. WorkSafe indicated that it will adopt

a conservation approach in relation to local authorities and treat only elected members

and CEO’s as Officers.


However these comments are not binding and care must be taken given

it is a matter of the court to determine officer liability.


The Health and Safety at Work Act states a person conducting a business

or undertaking (PCBU = business entity) owes a primary duty of care to ensure,

so far as is reasonably practicable, the health and safety of its workers and

workers influenced or directed by the PCBU.


If a PCBU has a duty or obligation under the HSW Act, an officer of the PCBU

must exercise due diligence to ensure that the PCBU complies.


If an officer has acted with due diligence, he or she will not be held liable for the

conduct of other officers or the PCBU.


A 2015 case in Australian Courts saw the first prosecution of an officer under

equivalent legislation. The 2015 case involved a project manger found guilty, after

the fatal electrocution of a contractor on the project site.


Australia’s definition of an officer is a person who makes, or participates in

making, decisions that affect the whole, or a substantial part of the business.


The courts considered the individual’s decision making role in the company as a whole, rather than their role in respect to the particular matter in which there was a breach of duty.

While the project manager had operational responsibility over the delivery of specific contracts, he did not exercise sufficient responsibility over the whole organisation so as

to qualify as an officer.


Until it is established in New Zealand case law it would be sensible for any senior manager who might fall within the definition to prepare as if he/ she is covered.


What must an officer do?

Officers must frequently observe and attend their work sites. This is not a task that can

be delegated. It will not be sufficient for an officer to arrange insurance, put policies

in place and then sit on their hands. It will also not be enough for a board to delegate

these tasks to CEO.


• Review

• Plan

• Improve

• Implement

• On a Regular Basis


Officers who do not have hands on involvement in the operation of their business

are more likely to be at risk of prosecution because they may not be familiar with the

day-to-day procedures for health and safety compliance. This issue saw Peter Jackson

resign as director of Weta Workshop.


A failure to meet due diligence obligations will expose an officer to a risk of being

personally convicted of a criminal offence. Convictions can result in significant fines or

even a prison sentence.


An officer must be personally satisfied of the effectiveness of their organisation’s health

and safety systems and performance.


Want more information? Check out WorkSafe New Zealand and Institute of
Directors, Health and Safety Guide: Good Governance for Directors

PCBU and Officers
.pdf
Download PDF • 123KB

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