The Unseen Responsibility: Are You an "Officer" Without Knowing It?

Let us all behold the Work Health and Safety Act 2020 (WA), in all its ambiguous glory. There’s an interesting juxtaposition of potential consequences arising from it. Whilst aiming to reduce the health and safety vulnerability of all Workers, it elevates the personal liability vulnerability of a new subset of Workers. This unfortunate group will only ever know for certain; what their WHS duties were and the quantum of their personal liability when they're sitting in front of a judge.

In Western Australia, a new class of worker is emerging with significant legal responsibilities: the "Officer." These individuals aren't necessarily Directors; but they sit in a unique position, holding legal obligations under the WHS Act 2020 (WA) to exercise 'due diligence' in ensuring workplace safety. Critically, only PCBUs (Persons Conducting a Business or Undertaking) and their Officers can be charged with industrial manslaughter, carrying a maximum penalty of 20 years' imprisonment and a $5 million fine for an Officer.

The challenge lies in identifying who qualifies as an Officer. While formal titles like Director are clear, the definition extends to individuals who:

• Make or participate in decisions affecting a substantial part of the business.

• Have the capacity to significantly affect the company's financial standing.

• Whose instructions the directors are accustomed to act upon (excluding professional advice).

This means that individual Geotechnical Engineers – whether employees, contractors, or consultants – could potentially be classified as Officers, depending on their influence and responsibilities. The terms "substantial" and "significantly" are open to interpretation and are context-driven, as highlighted by the 2021 WorkSafe guideline "The health and safety duty of an officer."

Employers are not legally required to identify their Company Officers, inform them of their status, or make them aware of their due diligence duties. This oversight can leave unsuspecting Geotechnical Officers vulnerable to industrial manslaughter charges if they are not equipped with the tools and resources to fulfil their legal obligations.

Past court cases, such as Brett McKie v Munir Al-Hasani & Kenoss Contractors Pty Ltd and ASIC v King, demonstrate that the determination of an "Officer" is made on a case-by-case basis, focusing on the individual's actual influence over the company's operations and financial standing, regardless of their official title or even if they've resigned.

For Geotechnical Engineers, a range of functions – from group-level strategic planning to significant budget control or due diligence in mergers – could shift their role into the "Officer danger zone." It's important for these professionals to continually assess their actual job scope and ensure they are exercising the necessary due diligence. If their current role doesn't allow for this, it's a conversation that needs to be had with their line manager.

Ultimately, the question of whether a worker is an Officer is objective, hinging on the level of influence they wield over the company's running. Employers should proactively review their management frameworks to identify Officers and ensure they are aware of their duties, protecting both the individuals and the company.