Guide 1 of 5 · Who
Who is an officer under the WHS laws?
Safe Work Australia says: “An officer is generally someone who: makes, or participates in making, significant decisions that affect the whole, or a substantial part, of the business, or has the capacity to significantly affect the business’ financial standing.” It also says it is the role and influence a person has in the business that decides whether they are one, and that the answer differs for each person and each business.
General information, not legal advice. The official places to check are Safe Work Australia’s officer duties page and the work health and safety regulator in your state or territory.
The quick test
Safe Work Australia’s three questions
For people in small businesses, Safe Work Australia’s officer duties page opens with three questions:
“Are you the owner or operator of a small business?
Do you make big decisions about all or part of your business?
Can you affect your business’s financial standing?”“If you answered yes to any of these, you may be an officer and have an obligation under WHS laws to demonstrate a proactive approach to WHS matters.”
Safe Work Australia, Officer duties
The test turns on decisions and influence. Its Who is an officer? information sheet uses the same two ideas: significant decisions about the whole or a substantial part of the business, and the capacity to significantly affect its financial standing.
The definition
How the Commonwealth Act defines it
The Commonwealth’s Work Health and Safety Act 2011 defines the word in section 4. Its first three paragraphs cover officers of the Commonwealth, of a public authority and, in one part of the Act, of a Commonwealth agency, each by pointing to another section. For everyone else, paragraph (d) borrows the meaning from the Corporations Act. Where the first three paragraphs do not apply, an officer is:
“an officer of the entity within the meaning of section 9 of the Corporations Act 2001 other than, if the entity is a partnership, a partner in the partnership;
but does not include, if the entity is a local authority, an elected member of the local authority acting in that capacity.”
Work Health and Safety Act 2011 (Cth), section 4, definition of “officer”, as compiled at 1 July 2024
Each jurisdiction that adopted the model laws has its own WHS Act (for penalties, Safe Work Australia points readers to “the specific WHS Act” of their own jurisdiction), so the Commonwealth wording is shown here as one example. Victoria did not adopt the model laws: its law is the Occupational Health and Safety Act 2004, and this guide’s sources do not cover how that Act treats officers.
In New South Wales
SafeWork NSW’s plain list
SafeWork NSW turns the definition into a list for the Work Health and Safety Act 2011 (NSW). It says: “You are likely an officer if you:”
- “are a director or company secretary”
- “are a person who makes or participates in making decisions that affect the whole or a substantial part of the business”
- “are a person who can significantly affect the corporation’s financial standing”
- “are a person whose instructions or wishes the directors act on (excluding proper professional advice)”
- “have a specified insolvency or restructuring role, such as a receiver, administrator or liquidator. Certain restructuring practitioners such as a trustee administering a compromise or arrangement can also be an officer.”
SafeWork NSW then sets out three clarifications that apply in New South Wales:
- “A partner in a partnership is not an officer for WHS purposes.”
- “An elected local councillor is not an officer when acting in that capacity.”
- “In the public sector, a person who makes or participates in decisions affecting the whole or a substantial part of the Crown’s or a public authority’s undertaking is an officer. Ministers are excluded in that capacity.”
Left out
Who is not an officer, in three sources
The exclusions are close but not identical, which is one reason to read the Act and the regulator for your own state or territory.
| Source | Partners | Elected members | Ministers |
|---|---|---|---|
| Commonwealth Act, s 4 | A partner in a partnership is not an officer of the partnership. | An elected member of a local authority acting in that capacity is excluded. | Not addressed in the definition quoted above. |
| SafeWork NSW | Not an officer for WHS purposes. | An elected local councillor, when acting in that capacity. | Excluded in that capacity, in the public sector. |
| WorkSafe WA | Each partner, where each partner would be a PCBU in their own right. | Elected municipal councillors, when acting as councillors. | Ministers of the Commonwealth, a state or a territory. |
WorkSafe WA adds that someone can be an officer of the Crown or of a public corporation when they report directly to its chief executive and also make, or participate in making, decisions that affect the whole or a substantial part of what it does.
Volunteers
Volunteer officers
The Commonwealth Act treats volunteers differently. Section 34(1) reads: “A volunteer does not commit an offence under this Division for a failure to comply with a health and safety duty, except a duty under section 28 or 29.” Sections 28 and 29 are the duties of workers and of other persons at a workplace. For unincorporated associations, section 34(3) says that “an officer of an unincorporated association (other than a volunteer) may be liable for a failure to comply with a duty under section 27”.
Queensland’s regulator makes a similar point about its industrial manslaughter offence: a volunteer senior officer cannot be prosecuted for it.
What follows
What being an officer brings with it
Being an officer brings the duty of due diligence: Safe Work Australia puts it as ensuring “your business meets its WHS duties to protect workers and other persons against harm to health and safety.” Safe Work Australia says an officer who does not meet that duty could be prosecuted, adding: “This can happen even if an incident didn’t happen at your workplace or your business isn’t liable.” The Commonwealth Act says the same in section 27(4): an officer may be convicted or found guilty “whether or not” the business has been.
What due diligence asks for, step by step, is in due diligence in six steps; what the courts may impose is in penalties and industrial manslaughter. WorkSafe WA describes the officer’s duty as one about “strategic, structural, policy and key resourcing decisions”: how the place is run.