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.