Compliance and Enforcement – The Role of Inspectors
Part 8 of 14 – Workplace Health and Safety Update
Authors: Robin Young, Partner and Nick Read, Solicitor
15 December 2011
The first step for any business in responding to a workplace safety incident is determining whether the incident is one which requires notification to the Regulator (in NSW, the WorkCover Authority).
As with the Occupational Health & Safety Act 2000 (“the OHS Act”), the job of enforcing the Workplace Health and Safety Act 2011 (“the WHS Act”) falls to the inspectors.
Inspectors are employed by the Regulator and are appointed under Part 9 of the WHS Act. Once appointed, they are capable of exercising a broad range of powers to work towards compliance.
What powers do Inspectors have?
Powers include:
- To enter a workplace without notice
- To inspect, examine and make inquiries at the workplace
- To examine and take copies of any documents, with the exception of documents that are subject to legal professional privilege
- To bring to the workplace and use any equipment or materials that may be required
- To take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings)
- To take and remove for analysis a sample of any substance or thing without paying for it
- To require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers. Failure to provide reasonable help is an offence under the WHS Act
- To exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of the WHS Act
- During the course of an investigation, an Inspector can require a person to answer questions and provide documents. It is essential that prior to any questioning takes place a person is given the opportunity to adopt the privilege against self-incrimination.
Improvement and prohibition notices
Less serious breaches of the WHS Act which are brought to the attention of the Regulator (click here to read about what types of incidents are required to be notified from 1 January 2012) will ordinarily result in an Inspector visiting the workplace and undertaking an informal investigation. Should the investigation reveal a minor breach of the WHS Act, this may result in the Inspector issuing an improvement or prohibition notice.
Improvement notices identify an area of non-compliance and recommend improvement measures. Improvement notices set specified timeframes for compliance. Failure to improve within the set timeframe is an offence for which the maximum penalty is $250,000.
Prohibition notices prohibit unsafe systems of work or the use an unsafe plant or equipment. For example, an Inspector might issue a notice prohibiting use of a forklift until such a time as a defective reversing beeper is fixed. The business would have to ensure that the reversing beeper was fixed prior to using the forklift again. Failing to comply with a prohibition notice is an offence for which the maximum penalty is $500,000.
Interestingly, under the WHS Act a business who is of the opinion that they have been issued a notice unfairly can apply to the Regulator to have the inspector’s decision reviewed. An application for review must be made within 14 days of a notice being issued.
Investigations
More serious breaches of the WHS Act will usually result in an Inspector undertaking a full scale investigation. Investigations involve the exercise of a number of powers listed above. Depending on the circumstances investigations can involve several different businesses and can take up to 18 months to complete.
Once an investigation is complete the inspector will submit all the evidence collected together with their written recommendations to the Regulator for consideration for prosecution.
Implications
If you determine that an incident is one which requires notification to the Regulator, legal representation should be obtained as soon as possible after the incident and before undertaking any internal investigation. This will ensure that all documents created in the course of the internal investigation are protected by legal professional privilege.
Some examples demonstrating the benefits of obtaining legal advice include:
- Company A does not obtain legal advice. Company A produces an investigation outcome report that identifies the risk of death. As the report is not prepared under the protection of legal professional privilege Company A must disclose the report to the Regulator. Company A is facing Category 1 offence with maximum penalty of $3 million (from 1 January 2012).
- Company B obtains legal advice. Company B produces investigation outcome report that identifies the risk of death. As the report is prepared under the protection of legal professional privilege, the report does not have to be disclosed to the Regulator. The Regulator investigates and determines that there was no risk of serious harm. The Regulator may decide not to prosecute the offence and instead issue an improvement or penalty notice. Should the Regulator decide to prosecute, Company B would only face a Category 3 offence with a maximum penalty of $500,000 (from 1 January 2012).
As evident by the example above, there are a number of benefits of obtaining legal advice throughout the investigation process, it ensures that:
- The Inspector does not go beyond the limits of his or her statutory powers,
- The facts and circumstances are accurately presented; and
- The process is controlled and strategies are implemented to avoid or reduce the risk of prosecution.
Holman Webb are able to provide further advice on inspectors’ powers, workplace investigations and prosecutions. Any queries concerning these matters should be directed to Robin Young, Rachael Sutton or Nick Read.
Robin Young
Partner
T: +61 2 9390 8419
E: robin.young@holmanwebb.com.au
Rachael Sutton
Partner
T: +61 2 9390 8422
E: rachael.sutton@holmanwebb.com.au
Nick Read
Solicitor
T: +61 2 9390 8420
E: nick.read@holmanwebb.com.au