Civil liability of executive officers of bodies corporate
245AK Civil liability of executive officers of bodies corporate
An executive officer of a body corporate contravenes this subsection if:
the body contravenes (the work‑related contravention) a civil penalty provision in this Subdivision; and
the officer knew that, or was reckless or negligent as to whether, the work‑related contravention would occur; and
the officer was in a position to influence the conduct of the body in relation to the work‑related contravention; and
the officer failed to take all reasonable steps to prevent the work‑related contravention.
Civil penalty provision
An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1).
Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this subsection.
Civil penalty: 240 penalty units.
Reasonable steps to prevent the contravention
In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work‑related contravention by the body, a court must have regard to:
what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was engaging in the work‑related contravention.
Subsection (3) does not limit subsection (1).
Definitions
In this section:
executive officer of a body corporate means:
a director of the body corporate; or
the chief executive officer (however described) of the body corporate; or
the chief financial officer (however described) of the body corporate; or
the secretary of the body corporate.
negligent: an executive officer of a body corporate is negligent as to whether a work‑related contravention would occur if the officer’s conduct involves:
such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and
such a high risk that the work‑related contravention would occur;
that the conduct merits the imposition of a pecuniary penalty.
reckless: an executive officer of a body corporate is reckless as to whether a work‑related contravention would occur if:
the officer is aware of a substantial risk that the work‑related contravention would occur; and
having regard to the circumstances known to the officer, it is unjustifiable to take the risk.
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