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WHS prosecutions

Is your workplace equipped to handle a visit from WHS inspectors following a workplace incident? Many employers are caught unprepared, resulting in unnecessary business disruption with further investigation activity, prosecution and in some cases, significant penalties. Using the example of an incident in a manufacturing plant, we look at ways to manage the situation, which are relevant for all industry types, and provide key tips, including where jurisdictional differences exist.

The scenario

An incident occurs at your plant, where a worker is seriously injured because a guard was removed for maintenance work and not replaced. After notifying the safety regulator of this incident, an inspector attends the workplace to investigate. The inspector asks to speak to the plant manager (you)—what do you do?

Immediately following the incident

1. Ensure the safety of workers and others

Depending on the incident, this may require:

  • applying first aid (by a qualified officer)
  • calling emergency services
  • isolating the plant or equipment where necessary, and
  • preserving and cordoning off the incident site to ensure other workers or passers-by are quarantined from the area and to comply with the duty to preserve the incident site (explained further below).

2. Notify regulators of certain incidents and preserve the incident site

Notification

In all jurisdictions, legislation requires that you must immediately phone the relevant regulator when a particular category of incident becomes known and then report it in writing within 48 hours. Regulators provide the necessary forms for written notification on their websites and it is advised that you keep a copy of the written notification as a record.

If you are unsure whether or not you should notify the regulator about an incident, contact an experienced work health and safety (WHS) lawyer as soon as possible for legal advice.

Preservation

If you are required to report an incident, the incident site must be preserved until an inspector arrives or the regulator otherwise advises that the site can be disturbed. The site should be cordoned off as soon as possible and not disturbed, other than to ensure the safety of workers and others. Failure to notify (where required) and preserve the incident site may constitute an offence and result in significant penalties being imposed.

3. Control of communications and documentation

Care should be taken when drafting incident reports, regulator notification forms and safety alerts, as all non-legally privileged communications may be required to be provided to a regulator during an investigation. This includes emails, reports, safety documentation and board papers.

To control and monitor the flow of information with the regulator, a company representative should be appointed to accompany and liaise with the WHS inspector in the workplace.

TIP: Workers should be regularly reminded that they are not authorised to speak or provide documents on behalf of the company. However, workers should not be directed on whether or not to speak to inspectors on their own behalf—this is a matter for the individual worker.

When an inspector calls

Powers to enter a workplace

When an inspector arrives at a workplace following an incident, they:

  • must announce their arrival and provide identification
  • should participate in any site induction procedures
  • should wear appropriate PPE, and
  • should be accompanied by a management representative at all times.

Powers at the workplace

Inspectors can use a broad range of powers, including:

  • inspecting, examining and making enquiries
  • taking photographs, measurements and recordings
  • seizing anything that constitutes evidence of an offence (including documents)
  • requiring any person to answer questions and provide their name and address
  • issuing a statutory notice, and
  • requiring any person to provide reasonable assistance.

It is an offence to refuse the inspector access to the workplace or to hinder or obstruct the inspector.

Powers to inspect, examine, seize and request documents

An inspector may inspect, examine and seize anything at the workplace, including any document, unless the document is subject to legal professional privilege.

To effectively manage the provision of information to the regulator:

  • encourage inspectors to formalise any requests for documents in writing, and
  • retain a complete copy of all documents provided to the inspector for the company's records.

Before formally requiring a person to produce a document, an inspector must warn that refusal or failure to comply is an offence unless the person has a "reasonable excuse". Reasonable excuses may include:

  • taking time to consider any questions raised
  • reviewing the documents the inspector requested
  • obtaining legal advice regarding the request, or
  • the document is privileged (if you are unsure, seek legal advice).

Answering an inspector's questions

In Victoria and South Australia, a person may refuse to answer a question or provide information to an inspector if it may tend to incriminate them. In South Australia only, this also extends to documents.

In other jurisdictions, a person must answer all questions asked by an inspector, even if the answer may incriminate the person. Interestingly, the answers can't be used as evidence against the person in civil or criminal proceedings, but may be used against someone else or a company. This protection for individuals only applies if the question is asked by the inspector when he or she is exercising their formal powers under the relevant legislation. It is therefore important that a person does not provide information voluntarily (i.e. without the inspector compelling the person to answer the question).

A company cannot refuse to provide information on the basis that it is incriminating. Legal advice should be sought before answering questions.

Statutory notices

Inspectors can issue improvement and prohibition notices. It is important to carefully review any notice received to determine if the measures contained within it can be complied with and are reasonably practicable. If practicable, you should enhance your systems and procedures in line with the notice. If the measures are not practicable, consider appeal options. And if you're unsure, obtain legal advice.

Failure to comply with a notice constitutes an offence and may result in significant penalties being imposed.

Key takeaways

Following a workplace incident, it is important that:

  • the immediate health and safety of workers and others is protected
  • plant managers understand their role in incident management, follow company incident management procedures and understand the extent of inspectors' powers
  • workers are made aware of, and understand, their rights and obligations when interacting with an inspector
  • communications with the regulator are controlled and monitored, and
  • you seek advice from an experienced WHS lawyer to ensure you comply with the law and protect the rights of workers and the company.

This article was originally published in the October/November 2016 issue of Australasian Manufacturing and Technology magazine and is republished here with their kind permission.  Click here to read the article.

We would like to acknowledge the contribution of Nicole Fauvrelle to this article.
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