The recent decision of the ACT Industrial Court in the case of McKie v Al-Hasani and Kenoss Contractors Pty Ltd has valuable lessons for everyone in the WHS industry.The ruling particularly relates to the distinction between ‘Project Managers’ and ‘Officers’ and the responsibilities and legal obligations that come with each role.
Background
For those unfamiliar with the case it involved the death of a Kenoss subcontractor who was electrocuted after his truck came in contact with live power lines at a disused compound. Charges were brought against Kenoss Project Manager Munir Al-Hasani under section 27 of the WHS Act, citing that he had breached the officer’s WHS duty.However, the court accepted that Mr al-Hasani was not an ‘officer’ and therefore, did not owe the officer’s WHS duty. His role was determined as purely ‘operational’, with no corporate obligations.
Many legal commentators are claiming that the decision sets a precedent around the WHS legal responsibilities between officer and project managers, but this is not the case. In my view, the Magistrate has made a clear ruling that this determination will be made by the courts, case by case, based on the specific circumstances and the extent of influence the person could exert on an organisational level.
Lessons for the industry
This tragic situation has been a test case for all of us in the industry. But regardless of the ruling, it’s a timely reminder about our obligations and the importance of due diligence.
Based on the outcome of this case our advice is to ensure that:
- Officers are identified, their roles clearly defined and a due diligence framework policy is developed.
- A due diligence training program for officers is established. Knowledge is the key to informed decision making.
- Organisations implement a safety observations program for officers. Actions speak louder than words and shaping improvements through positive reinforcement strengthens safe behaviour and builds engagement.
- A critical risk review is conducted. Officers must understand the hazardous nature of their operations.
- A safety impact assessment procedure is developed. This is a practical way to identify how decisions will impact on the operations in a systematic manner.
- Officers establish key safety performance indicators that measure what people are doing on a daily basis to prevent incidents.
- Audits are conducted regularly, focusing on analysis and action to create forward thinking accountability and prevent a reactive safety culture.
- External reviews of the due diligence framework occur frequently, building on what is right not focusing on what is wrong.
