The decision of the Industrial Court of the ACT in B McKie v Munir Al-Hasani v Kenoss Contractors Pty Ltd (In Liq) [2015] ACTIC 1 (3 August 2015) provides the following key take-outs on critical aspects of the Model Work Health and Safety Act (WHS Act):

  1. A person will not be an officer if they only have operational responsibilities and do not have any ‘corporate obligations’ such as the capacity to engage contractors or commit corporate funds.
  2. A prosecutor must prove beyond reasonable doubt that a person falls within the definition of ‘officer’ under the WHS Act[1] before there can be any consideration as to whether the person breached the officer’s WHS duty.
  3. If a person is charged with breaching one WHS duty only, namely the officer’s duty, but the court finds the defendant is not an officer, that person cannot be convicted of breaching the worker’s duty even if the evidence establishes that the person breached the worker’s duty.

A prosecution against a Project Manager, Mr al-Hasani was dismissed because the Chief Magistrate of the ACT was not satisfied beyond reasonable doubt that Mr al-Hasani was an ‘officer’ under the WHS Act and he therefore did not owe the officer’s WHS duty.

Mr al-Hasani was Project Manager at a construction site operated by Kenoss Contractors Pty Ltd (Kenoss) and a director of a related company. Kenoss was found guilty of breaching its WHS duty as a person conducting a business or undertaking (PCBU).

What happened?

On 23 March 2012, a tip truck driver and sub-contractor, Mr Booth, drove to a construction site to deliver a load of materials. He spoke to the Foreman when he arrived and then proceeded to a fenced-off compound area at the site where other similar materials were piled. As Mr Booth drove into the compound area, the tip truck connected with live overhead powerlines and electricity subsequently ran through the tip truck through to the ground. Mr Booth jumped out of the tip truck, collapsed and later died. He had been electrocuted.

Charge

Mr al-Hasani was charged with breaching the officer’s WHS duty under section 27 of the WHS Act. It was claimed that Mr al-Hasani was an officer of Kenoss and that:

  • Mr al-Hasani failed to take reasonable steps to ensure that Kenoss:
    • had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety; and
    • had, and implemented, processes for complying with its duties under the WHS Act; and
  • Kenoss failed to ensure, so far as is reasonably practicable, the:
    • provision of a safe system of work; and
    • provision and maintenance of a work environment without risks to health and safety.

Particular failures that were identified by the prosecutor included:

  • there were no tiger tails, signs (e.g. on the fence) or other visual warnings to alert workers to the existence of the live overhead powerlines;
  • no steps had been taken to de-energise the live overhead powerlines; and
  • the compound area, whilst fenced, was not locked and appeared as though it was in use.

Hearing

Mr al-Hasani pleaded not guilty on a number of grounds including that he was not an officer under section 27 of the WHS Act.

Decision

The court accepted that Mr al-Hasani was not an ‘officer’ and therefore, did not owe the officer’s WHS duty. The Chief Industrial Magistrate considered what Mr al-Hasani could and could not do in his position as Project Manager. Mr al-Hasani was found to have operational responsibilities only – typical of any Project Manager – and no corporate obligations, e.g. he could not authorise the engagement of contractors, direct that persons be paid or commit corporate funds. The evidence suggesting that his responsibilities were higher than this was found to be speculative at best.[2]

Chief Industrial Magistrate Walker found that when deciding what someone can and cannot do in their position, consideration must be given to the ‘prism of the organisation’ as a whole and not their position specific to a certain task.[3]

What should employers take from this decision?

This decision reiterates the requirements for finding an officer guilty of an offence under the WHS Act, i.e. that the prosecution must prove all elements of the offence, including the first element that a person in fact owed the duty, beyond reasonable doubt.

This means that when it is unclear whether or not a person falls within the definition of an ‘officer’, the argument is available for them to make (or choose to remain silent), particularly given the current environment where there is limited case law on the point. For example, it is unclear whether or not a parent company can be an ‘officer’ of one of its subsidiaries – this very question is before the courts.

Importantly though, persons who may or may not be ‘officers’ will in any event fall within the definition of a ‘worker’ and therefore could be prosecuted instead for breaching the worker’s duty to take all reasonable care. However, they need to be charged with breaching the worker’s duty - the mere fact that the circumstances show a person did breach the worker’s duty will not result in a conviction unless the person was appropriately charged.

WorkSafe ACT commented that the mere fact of laying such charges against an officer sends a ‘wake-up’ call to all officers to ensure they are complying with their duty under the WHS Act.[i]