Are health and safety managers “company officers” and should they be?

This post has been prompted by recent activity on various blogs and safety discussion boards about whether a health and safety manager could be a Company Officer for the purposes of recently adopted health and safety legislation.

For those of you who follow this blog outside of Australia, part of this post is particular to recent legislative developments is Australia, although part of the discussion also looks at the broader accountabilities of health and safety managers.

Since about 2008, Australia has been engaged in a discussion about a legislative change agenda commonly referred to as “harmonisation”. The object of harmonisation was to achieve nationally consistent health and safety legislation across all jurisdictions in Australia. Although due to commence in 2013, and despite “harmonised” laws having been implemented in a number of jurisdictions, to date, the objectives of harmonisation have not been achieved.

You can read more about harmonisation here.

One of the key elements of harmonisation is a positive obligation of “due diligence” imposed on “company officers”.

Previously, under Australian law Company Officers could be held personally liable for breaches of safety legislation where offences occurred due to the company officers consent, connivance or neglect. A recent example of this type of case was the Western Australian decision, Fry v Keating, and you can see a presentation of this type of case here.

The due diligence obligations mean that relevant individuals must demonstrate positive actions to be satisfied that health and safety risks are being effectively controlled. So for example, the “model bill” used to frame harmonised legislation provides that due diligence includes taking reasonable steps:

  • to acquire and keep up-to-date knowledge of work health and safety matters; and
  • to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations; and
  • to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking; and
  • to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information; and
  • to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act; and
  • to verify the provision and use of the resources and processes referred to above.

Given that harmonisation is about legislation aimed specifically at managing health and safety risks, it does suggest two important questions: Could health and safety managers by company officers for the purposes of the due diligence obligations, and should they be?

In my view, the answers are “probably not”, and “yes”.

Although health and safety managers, are often “senior managers”, they are not by default company officers. The term “officer” of a corporation is defined by s 9 of the Corporations Act 2001, and relevantly for this post includes a person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation.

A relatively recent case looking at the issue of who may be a company officer was Shafron v Australian Securities and Investments Commission [2012] HCA 18, which you can access here. The case was one of a series of cases that concerned the prosecution of a number of company officers and executive managers of James Hardie arising out of disclosures by the company over its ability to fund potential asbestoses liabilities.

Mr Shafron was both Company Secretary and the General Legal Counsel, and the relevant arguments turned on whether Mr Shafron could be a company officer in his capacity as General Legal Counsel.

Part of the argument run by Mr Shafron was that he could split the two roles, Company Secretary and General Counsel; so that when he was acting in his capacity as a Company Secretary, he was a Company Officer, but that in his capacity as General Counsel.

That majority of the High Court “greatly doubted” that the capacities could be spilt in that way, but usefully for this discussion went on to discuss whether Mr Shafron was a Company Officer when acting in his capacity as General Counsel.

In forming the view that Mr Shafron was a person, who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation  the High Court made a number of observations.

First, that Mr Shafron was a senior officer, the second or third most senior executive in the company.

Second, Mr Shafron was one of a small group of three people who were “responsible for formulating” the relevant proposals.

Third, Mr Shafron’s “participation” went beyond merely providing advice – he played a large and active part (along with two others) in putting together the proposal that they chose should be put to the Board and adopted.

What is clear from the decision is that in some circumstances, whether a person is a Company Officer is situational – it is not fixed. So a person in making (or participating in making) some decisions may be regarded as a Company Officer, but in other cases may not.

On the face of the reasoning of the High Court, it is difficult to envisage too many circumstances where a health and safety manager would be likely to be found to be a Company Officer.

In my experience, health and safety managers are not typically amongst the senior echelon of executive managers, nor do they put proposals directly to the Board. To the extent that health and safety management proposals are put before a Board, they often come via a CEO or “sustainability” manager who put their own imprimatur on the proposal.

So to answer the first question, could health and safety managers be company officers for the purposes of the due diligence obligations? In my view – I cannot rule it out, but probably not,

As interesting (or otherwise) as this discussion might be, the more fundamental question is whether health and safety managers should be regarded as company officers – or at least have equivalent obligations of due diligence under safety legislation.

By way of comparison, there was and continues to be ongoing debate about how the mining industry is some parts of Australia will implement the principals of harmonisation.  At one point, a draft set of what were referred to, as “non-core” mining regulations were prepared, and without going into the rationale behind, and operation of the non-core regulations they did propose:

  1. The appointment of a senior person on a mine site who would be responsible for safety under the regulations – the Site Safety executive or SSE; and
  2. That the SSE would be “deemed” a company officer for the purposes of the health and safety regulations.

In doing this, the regulations were clear that the positive obligations of due diligence would apply to that position.

There seems to me to be no reason in principle why a similar approach could not be adopted in relation to health and safety managers. And if you look at the due diligence obligations as set out above, there is no reason that I can think of why you would not expect a health and safety manager to be across all of those requirements.

So, even is a health and safety manager may not be a company officer, there is no reason why they should not have the positive obligations of due diligence. After all, where would we expect the company officers to get the information top discharge their obligations if not from the health and safety manager?

5 thoughts on “Are health and safety managers “company officers” and should they be?

  1. Doesn’t the last sentence provide a good summary of responsibilities? Th WHS manager informs and advises the officers. That clearly separates the duties and responsibilities. The officers have the duty of care to ensure the company is mmeting its duty of care and they utilise others in doing so. Why should the WHS manager have or want the same responsibility as the officers?

  2. In another discussion on another site I had mentioned that the harmonised laws focused on corporate culture. This became confused with safety culture. The board of a company makes statements about the vision, values & philosophy behind the way a company does business. Coporate culture is the response back to the board of how things are done & the advice that is given to the board. As each level of management acts in either enforcing or ignoring the actions of those under their control as they go about their business, to ensure the board’s message is conducted in the manner in which it was intended, each level of management, including the board, becomes party to that behaviour. To this end the safety manager is a part of that column of responsibility who must interpret the actions of the workforce & line management against the messages from the board. If the message is corrupted the safety manager is obliged to correct the errant behaviour & report his or her findings to those responsible up the line or else the safety manager becomes party to corporate culture that is created and accepted. The safety manager, therefore, offers advice that may affect a part or the whole of an organisation if it is prosecuted for not maintaining a safe place of work.

  3. Hi All
    My thoughts are that their is a danger for Senior Safety Managers here in that if they are making safety related decisions for an organisation it may be argued that this affects a significant part of the organisation (it would be a brave CEO who states that safety is not a significant part of his organisation). This would apply to senior management such as a Safety VP.
    Having said that it could also be counter argued that, as per WA legislation, all safety decisions are made in consultation with the work force and therefore raise an argument about who actually made the safety decision to operate in a particular fashion – maybe an expansive consultation process raises an ‘implied defence’ – food for though…

  4. Greg, I think your answers should be ‘possibly’ and ‘depends on the level of responsibility’ and like John I believe the last paragraph is a good response. Should the worst happen and the court needs to decide who is an officer then it will be better if the safe professional can show compliance and for a safety professional it’s also good practice. Finally when you think about it, it is also relevant to all managers to show due diligence, better to be safe than sorry!

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