The Australia Capital Territory is the first jurisdiction in Australia to charge an 'officer' under the legislation where a senior manager is facing two charges for allegedly failing to exercise due diligence to ensure that the workplace complied with its workplace health and safety duties.
The charges were laid after a workplace incident that resulted in the death of truck driver Michael Booth. Booth died from electric shock injuries sustained while he was operating a tip truck when the trailer made contact with a power line while off-loading gravel at a dumping station.
Lawfirm Duncan Cotterill lawyers Brian Nathan, Mark Lawlor, Stephanie Grieve and Scott Wilson advise that the case has “significant implications” for New Zealand as our government's proposed Health and Safety at Work Act –
due to come into force in April 2015 – is closely modeled on the Australian legislation.
New Zealand's proposed legislation has a similar personal due diligence duty on officers to actively manage workplace health and safety, and ensure that the person conducting a business or undertaking (PCBU) complies with its health and safety obligations.
“The concept of 'officer' includes individuals with governance roles in an organisation (e.g. directors or partners) and further extends to those who make decisions that affect the whole or substantial part of the business of the PCBU,” the lawyers explain.
Under the act due diligence obligations mean that officers will need to be proactive, not just reactive, in managing health and safety in the workplace.
In the Australian case, the senior manager has pleaded not guilty to the charges, and at a hearing in December the preliminary question to be determined is whether the senior manager is indeed an 'officer'. It appears that the senior manager was not a director of the PCBU but is a director of a related entity explain the Duncan Cotterill lawyers.
Nathan, Lawlor, Grieve and Wilson said the prosecution sends three messages:
Workplace health and safety regulators are prepared to prosecute individuals if they fail to meet their officer obligations. We can expect a similar approach from the New Zealand regulator, WorkSafe
Liability for health and safety may not rest solely with directors but also with senior managers.
Health and safety duties can and do overlap – In the Australian case, the PCBU has been separately charged.
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New Zealand HR personnel should be closely monitoring Australia's first prosecution of an 'officer' under their new workplace health and safety legislation as the similar laws are due to be implemented here.