Court rules on who is not an officer of a PCBU  

August 2015 

The Work Health & Safety Act 2011 (the Act) imposes a discrete obligation on officers of persons conducting a business or undertaking (PCBU). In short, such officers must exercise due diligence to ensure the PCBU complies with their duties and obligations under the Act. 

However, the Act does not contain an extensive definition of the term "officer" and simply refers to the Corporations Act 2001(Cth) (the Corporations Act) for the definition. The Corporations Act provides an officer is a person who: 

·       makes decisions that affect the whole or a substantial part of the business 

·       has the capacity to affect significantly the corporation's financial standing, or 

·       in accordance with whose instructions or wishes the directors are accustomed to act (excluding advice given by a person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the director). 

A case brought before the ACT Industrial Court involving a prosecution against an alleged officer of a PCBU for failing to exercise due diligence, Chief Industrial Magistrate Lorraine Walker has published her reasons for dismissing the charge against Mr Al-Hasani, the “officer”.  

The main facts in this case were:-  

·        On 23 March 2012, Michael Booth a driver employed by a contractor engaged by Kenoss Contractors to deliver materials for the Project, was fatally electrocuted when the bucket of his truck came close to or contacted overhead power lines at the Site; 

·        Kenoss Contractors' corporate structure was not fully described but appears to have comprised a number of senior roles, including a director, general manager and safety officer.  Mr Al-Hasani was described as 'Project Manager' and was responsible for managing all major projects for Kenoss Contractors ; 

• The organisational chart for the Project noted Mr Al-Hasani at the head with the safety officer below him.  A project engineer, surveyor and general foreman also appeared as direct reports to Mr Al-Hasani; 

Mr Al-Hasani said he reported to the general manager and company director and that, in terms of his scope of decision making power: 

• the general manager was "El supremo"; 
• there were other people in the accounting and administration departments between him and the general manager and company director; 
• he could not unilaterally direct payments to be made to any party or employ people or purchase basic consumables; 
• he prepared tenders but proposed prices had to be approved by 'management'; 
• he performed traditional Project Manager responsibilities.

The learned Magistrate concluded that notwithstanding Mr Al-Hasani's role as Project Manager, the prosecution had not proven that he did, in fact, make decisions or participate in decisions that affected either the whole or a substantial part of Kenoss Contractors' business. 

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