How to determine who is an officer? Relevant for 2004 OHS Act Vic and Harmonised legislation

One proactive activity within every organisation is to determine who in your organisation is an “officer”, hence carrying personal liability if OHS is not managed as per legislated requrements. This link provides a detailed article, which has been summarised below

http://www.mondaq.com/australia/x/170736/Directors+Officers+Executives+Shareholders/An+officer+and+a+defendant+personal+liability+of+managers&email_access=on?goback=%2Egde_4386381_member_107248272

Who in your organisation might be an officer under the OHS Act?

The Corporations Act states that an officer is

“a person:

  1. who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the corporation; or
  2. who has the capacity to affect significantly the corporation’s financial standing; or
  3. in accordance with whose  instructions or wishes the directors of the corporation are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person’s professional capacity or their  usiness relationship with the directors or the corporation)”

The Victorian Supreme Court recently provided some clarification of this definition in practice – Hodgson v Amcor [2012] VSC 94. The Court determined whether the senior manager fell within paragraphs (i) or (ii) of the definition of “officer”. The questions asked in court provide further guidance on who might be officers in yor organisation.

Who does the definition include, the decision is based on the following indicators:

  1. ability to take part in decisions which affect the company’s business at a high level.
  2. position within the company (eg. senior management)
  3. capital expenditure authority

NOTE: In this case, a limit of $250,000 was an indication that the manager might not be an officer

  1. management reporting structure

NOTE: A person may be an officer if they report directly to the board, but non-direct reporters may be an officer if they are “capable of dealing directly with board members”.

  1. participation in board decisions (not mandatory)
  2. extent of the manager’s domain (in terms of staff, resources and revenue)

NOTE:  In Amcor, the fact that the manager headed and managed the largest division in the company (in terms of staff, resources and revenue) supported the conclusion that he was an officer.

  1. Level of control over own budget
  2. direct reports (number of senior management reports)

NOTE:  In Amcor, the manager had oversight of a significant number of high level general managers which supported him being an officer.

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