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Know your Officers - Apr 2012

Know your Officers - Apr 2012

The term 'Officer' is a new categorisation of person in your company under the WHS Act.

It is absolutely essential to know who the officers are in your company because under the WHS Act, officers have a very specific duty of due diligence that must be exercised at all times.

A failure of an officer to exercise their primary duty under the Act can result in a fine up to $600,000 and/or up to 5 years imprisonment. So now you can see why it is so important that a PCBU recognises who its officers are.

But like most things in this life, determining that is not as straight forward as it may seem...

Who will always be an officer under the WHS Act?

The officers of a company will always include the following people:

  • Directors
  • CEO
  • COO
  • Company Secretary

So start by looking at your governance structure and determine from the get go who the above people are in your company.

But is there somebody else in your company who may fit the definition of an officer?

The broad definition of an Officer is:

  • A director or secretary of the corporation; or
  • A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business; or
  • A person who has the capacity to affect significantly the corporation's financial standing

Generally speaking, a WHS Manager, although they may have varying abilities to comment on the major decisions of a company, are not usually a person who has actual or substantive control over the business as a whole.

People who provide advice or recommendations to the 'decision-maker' are generally not considered to be an Officer.

You need to look carefully at specific job descriptions and the level of influence people have over the decision-making of the business when evaluating the status of Officer.