‘Not guilty’ finding for company “officer” charged under harmonised WHS laws

In 2012, Mr Booth, a contract delivery driver was killed on an ACT project site after his vehicle struck live overhead power lines. Kenoss Contractors had control of the site and was charged with failing to maintain a safe system of work and provide a work environment without risks to health.

ACT Industrial Magistrate Lorraine Walker found that Kenoss had breached its duty by failing to take adequate measures to address the risk posed by live overhead power lines. Kenoss was subsequently fined $1.1 million.

Kenoss’ Project Manager, Mr Al-Hasani, was also charged in his capacity as an officer of Kenoss.

Mr Al-Hasani pleaded not guilty. The Industrial Magistrate found that Mr Al-Hasani was fully aware of the risks associated with the live overhead power lines and did not exercise diligence with respect to safety compliance. As a result it was for the court to consider whether Mr Al-Hasani fell within the definition of an officer under the WHS Act and therefore held a positive duty to exercise due diligence in respect to Kenoss’ safety requirements.

If convicted Mr Al-Hasani would have faced a fine of up to $300,000.

In considering the definition of officer the Industrial Magistrate relied on the definition in the Corporations Act and a High Court decision where ‘the broader definition of officer still requires that regard be had to the role of the individual in the corporation as a whole not limited to their role in respect to the particular matter in which it was alleged there was a breach of duty.’

As a result the Industrial Magistrate was not satisfied that Mr Al-Hasani was an officer of Kenoss, given:

• There was no evidence he made or participated in making decisions which affected the whole or substantial part of the business;
• THe could identify potential employees but was not responsible for hiring and firing them;
• THe could not commit company funds to business expenses; and
• THe prepared tender documentation but did not sign it

This decision is a useful ‘yardstick’ for businesses to identify who is an officer, and ensure they not only understand their duties but also the obligations they impose and potential liability for failing to meet them.

It is a timely reminder to all businesses to make work health and safety a priority and continually strive to meet best practice to mitigate these risks as much as possible.

Should you require assistance in ensuring your organisation meets best practice, please contact HR Legal.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.