Andrew Douglas: Okay, well, the main topic is pretty interesting. It’s about officers. Officers are people that have control or substantial control over a business. People like CFO are necessarily officers, as are company secretaries. People who are ahead of operations of a multi-plant business are not.

So, it is someone who has a capacity to affect the operations of a business. You must identify internally against the legal definition who are officers for your insurance processes. For officers and directors liability insurance, you must identify them. You must identify them for safety and corporations law. Fortunately, they are the same. But it is a deliberate exercise you must do and the board must sign off on. That’s step one.

Two, officer liability is different between Victoria and other states and territories. Officer’s liability under section 144 in Victoria is one which is a subjective knowledge of a particular risk and the requirement to use reasonable care to prevent it. But what is subjective knowledge is one which can be drawn from community knowledge. So, it’s not just subjective. It’s one that the person should know about that exists, like psychological hazards can I say is a great example.

Nina Hoang: So, obvious known risks, yeah.

Andrew Douglas: But it is most definitely a risk that has been brought home to you, and in the reporting processes, you should have, when a risk becomes alive to you, you must be satisfied then as if you are in a WHS state to apply the five elements of what is due diligence. Because in Victoria, there’s no clarity around what your obligation is once you are alive to it. You’ve just got to exercise reasonable care and the definition of what that is looks to be what section 27 is elsewhere, which is to know the nature of the risk, to know what the systems are that are in, you know, ensure there are good systems in place, they’re suitably resourced, to stay abreast of the most current law that relates to those.

Nina Hoang: And review it.

Andrew Douglas: So, and then to have an audit process that satisfies you that is occurring. So, what I want to say is this, everywhere else but Victoria, it is stuff you ought to know.

Nina Hoang: But also, we are not saying that means that as a officer in Victoria, you should be ignorant to things because you will also get in trouble.

Andrew Douglas: No, no, no. And you can’t be blind to it. So, you can’t know the risk, but say, “Look, don’t tell me about that.”

Nina Hoang: Yeah, like, you can’t choose not to get reports on safety.

Andrew Douglas: That’s right. So, don’t do that. But I guess what I’m saying is the difference is not as big as people think it is because it does involve actual knowledge in Victoria, but actual knowledge includes the knowledge that you obtain as a human being living in an environment you can’t ignore it.

In Victoria and in WHS, officers are being prosecuted where they participate in the wrongdoing, but officers have now been prosecuted on two occasions where they were simply officers and were not specifically aware of what was happening.

Nina Hoang: Yep.

Andrew Douglas: Sorry, that’s not true. Where officers did not participate, but were aware of the risk and did nothing about it, okay?

Nina Hoang: So, they ignored it, yeah.

Andrew Douglas: So, there are three levels of risk in prosecution in WHS. You participated, Victoria. You were aware of a risk and did nothing about it, Victoria and WHS. Three, you weren’t aware of it, but it was a known risk and the organisation did nothing about it. Won’t be liable in Victoria. Remember, in every one of those first two examples in WHS, you are liable, but you are liable in WHS on the third example.

So, what is the answer behind all this stuff? To actually have a proper safety system, to educate your board regularly around safety and the relative risks you have, and to ensure there is suitable resources to make sure the system has integrity, and then all of it has gone, okay? You don’t have to worry about it anymore.

Nina Hoang: But also to educate your staff. Like, you’d be surprised how effective it is when we’re doing training and explaining to them the their actions on officers and liability and everything as well.

Andrew Douglas: Yeah, and look, it is disturbing in a way that people are trying to protect officers from knowing what the truth is of their obligation, but what I do want to say is individuals are being charged much more frequently and officers are being charged much more frequently for much more serious offences and so are organisations being charged for much more serious offences and the regulators are also charging for multiple offences, including individuals, which it didn’t do before. So, it’s coming at you at enormous speed.

So, part of the reason we want to chat about this is be clear you’re an officer, be clear what the responsibilities are, be clear what you need to do, and be clear on how to fix it. It’s not hard.

Nina Hoang: Yeah.

Andrew Douglas: Okay? Let’s just jump now to the very long case study that I wrote-

Nina Hoang: Oh, gosh.

Andrew Douglas: In the early hours of the morning. Over to you, Nina.

Nina Hoang: Angel was no angel. She was an apprentice sparky, electrician, for Lights On Nobody Home, LONH, a major electrical contractor to the volume home builder industry.

Angel was clever. She’d woven her way onto her boss Kevin’s heart and could do no wrong. It made her feel untouchable. Her conduct to others reflected this confidence. There were five apprentices who worked for LONH and six fully qualified electricians.

Andrew Douglas: It should be 15 by the way.

Nina Hoang: There were 15 apprentices?

Andrew Douglas: There was 15, yeah.

Nina Hoang: Okay. Maybe 10 of them quit.

Andrew Douglas: Yeah, possibly after this.

Nina Hoang: They would hit a house in groups of three, two apprentices and one qualified electrician, to undertake the wiring and electrical automation, complete it to lockup condition for the electrical work, and then go out to the next house. Kevin would then attend and sign off completion.

Barry was a small young man who was obviously shy. His parents were protective and part of a devout religious group. He was open about this and proud of who he and his parents were, but he did not judge or seek to-

Andrew Douglas: This is the word I put in for you there.

Nina Hoang: Proselytise.

Andrew Douglas: Proselytise.

Nina Hoang: Proselytise.

Andrew Douglas: No, I just did it you. I know, I know, I’ve got to stop doing it.

Nina Hoang: I’ve got a bullying complaint ready to go.

His parents were kind and good people but unquestionably raised Barry in a protective and naive world. Barry was not worldly, struggled with what his parents described as vulgar conversation, and withdrew from the day-to-day banter early on at LONH. Construction sites are not for the guileless. Barry was teased by the boys, but eventually found a kind of equilibrium with them. They toned it down a bit, liked him, as he was a hard worker, was very honest, and in a weird way to them, could be very funny.

But Angel was different. His acceptance by the boys made her taunting and teasing more aggressive and hurtful. She started to call him by the moniker of the virgin and could not use his name, which hurt and offended him. She said things like, “Get the virgin to do that. You okay with working with me, virgin?” And it went on.

A few of the boys approached Angel and told her to cut it out. They explained, “Yes, he’s innocent, but he’s a good kid,” and what she said hurt him. She laughed. She said, “Doesn’t he want to be a man?”

Damian, one of the qualified sparkies, approached Kevin and said they had tried to stop what Angel was doing, but it just emboldened her. They liked Barry, acknowledged it wasn’t easy because he was so proper. Damian explained they had reached a place where banter did exist with the boys Barry felt safe with and he showed he liked being part of their team.

But Angel’s repeated denigration of him by the title ‘virgin’ really hurt him. He said to Kevin it was pretty obvious that Barry was hurting and starting to isolate from the team and he’d seen him crying. He had started to miss a few days, which was not like him at all. The boys had stepped up and were supporting him, but Angel was just killing him and the boys couldn’t stop her. When they tried, she was worse, not only to Barry but to them.

The next day, Barry’s doctor wrote a private letter to Kevin explaining Angel’s conduct was harming Barry. He was now suffering significant anxiety and he’d stopped eating and sleeping properly and the doctor suspected that Barry was starting to slip into depression.

Kevin was an old-fashioned Aussie guy. He thought it all sounded a bit soft and weird.

He spoke to Angel at work, shared the letter from the doctor, and asked for her view. Angel said, “He’s just a weak religious nutter and doesn’t like women. This is just pathetic.” Kevin told her to cut it out and give him a break. She just laughed.

Shortly after, she sought out Barry in the warehouse. She came up to him and said, “I see you now go to your doctor to tell tales of me, little virgin boy. You are weak as piss. Even your doctor thinks you are mental.”

Are you fine? Like, these slides, God.

Barry burst into tears. She stood her ground, hands on her hips, and laughed. He fled from the site to the chorus of derisive comments and laughter. He ran out the gates into the busy traffic on the main road outside and was struck and killed by an SUV.

Gosh, that was long.

Andrew Douglas: It was long, wasn’t it? Yeah, and it had a whole lot of spelling mistakes. You can tell it was from me.

Okay, did Kevin breach privacy law? If it was a breach, was it excused by safety law?

Nina Hoang: Yeah, so, you’re supposed to use personal information for the purpose it was intended, which was just to notify him. So, it would’ve been a breach of privacy law.

Andrew Douglas: Yeah. By the way, we haven’t got this here, but there’s absolutely no doubt. It just, there’s no claim that can be made because the young boy’s dead. There’s general protections. There’s discrimination law. There’s a whole lot of other breaches. I’m not talking about those. I just want you to know they’re liable.

Did Kevin, as the managing director, have any liability under safety law? And if so, why?

Nina Hoang: Yes, because he was aware of the risk and he ignored it. So, both as an officer, so, he’s got industrial manslaughter risk ’cause he’s negligent, and also reckless endangerment because he was indifferent to the risk.

Andrew Douglas: Yeah, and the industrial manslaughter part particularly plays out because the death was offsite. So, no other, you know, the reckless endangerment, it’s interesting, may not be able to apply ’cause the death occurred outside of work, but the fleeing did, so it probably is enough. You know, does you understand? So, reckless endangerment lies where the death occurs in the workplace.

Nina Hoang: Oh, gosh.

Andrew Douglas: Yes. Whereas industrial manslaughter can apply even where the death is outside.

Nina Hoang: Could they pursue, I know we’re running out of time, but could they have pursued, even though he died, that he was seriously injured before his death?

Andrew Douglas: They could, and that’s great. That is exactly the argument they could have done because reckless endangerment and all the other primary duties don’t have a causation base. Okay?

Nina Hoang: Oh.

Andrew Douglas: So, just to make, ’cause we are running out of time, but causation means that the offence relates to the action that occurred and the only causation-based offence is a duty-based offence of gross negligence, which is industrial manslaughter, okay? Which talks about the category one offences, which shows the complexity in WHS deaths.

Anyway, that’s by the by.

Did the company have any safety liability? Absolutely, would’ve been liable to the fullest amount.

What should have Kevin done after Damian spoke to him? So, Damian’s the one who came and said, “Look, she’s doing this. We’ve got to this stage.” What should have Kevin done?

Nina Hoang: Suspended her.

Andrew Douglas: Yeah.

Nina Hoang: Investigated and then disciplined her.

Andrew Douglas: Yeah, unquestionably. What should have Kevin done after he received the letter from the doctor?

Nina Hoang: He should have put controls in place to ensure that what’s the, Barry? Barry was safe, including, like, doing the discipline and everything, but also making sure that there were controls. Like, going back to the doctor for-

Andrew Douglas: Yeah, but what he shouldn’t have done is actually show the letter. But it was a trigger that told him at that stage there was a significant risk to Barry and he had to deal with Angel and just telling her to stop it-

Nina Hoang: No.

Andrew Douglas: -was not a sufficient control. In reckless endangerment, in industrial manslaughter, in duties, it was not enough.

Nina Hoang: Like, minimum, should have separated them.

Andrew Douglas: So, there you go. We’re only about seven minutes over time. We’ve done very well. But it was a really big week this week and we’ve had a lot of examples of rubbish being published that needs to be corrected because our safety people out there are confused by it every day. So, thanks for listening.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Give us a thumbs up. And for those who said those things, don’t throw stones at us because that would be a breach of your safety duty.

Nina Hoang: See you next week. Bye.

Andrew Douglas: See you later, bye-bye.