As part of an investigation into a workplace accident, a
WorkSafe inspector has the power to require the employer, or person
who controls the place of work, to make a statement. This is called
the duty holder interview and it would typically be a director of
the employer/ principal company who would be interviewed. This
interview is usually the last step in the actual investigation
process before there is a decision made about whether to prosecute
or not. It provides an opportunity for the duty holder to get as
much favourable information to WorkSafe as possible but also brings
with it obligations and risk. It is critical that the duty holder
is well prepared and represented at the interview.
WorkSafe has very broad powers in relation to these interviews.
They can require the employer or person who controls a place of
work, to make or provide statements, in any form and manner the
inspector specifies, and about conditions, material or equipment or
health of employees who work there. This has been interpreted by
the courts as entitling WorkSafe to request that questions in
interviews be answered, and it imposes obligations on employers to
answer. This is subject only to the right to not self-incriminate.
The court has described the inspectors powers as coercive.
WorkSafe can say who they want to interview and they have no
obligation to provide that person with an indication of the type of
allegations that may be made during the interview.
It is an offence to not only obstruct delay hinder or deceive an
inspector, but also to fail to assist with facilitating entry,
examination or inquiry. Under the Worksafe Prosecution Policy,
where obstruction occurs there is an expectation that there would
be a prosecution. It is important as a result to cooperate and work
with the inspector to a degree to ensure it cannot be said that
there is obstruction, but at the same time being aware and
conscious of the criminal nature of the investigation which is
occurring, and receiving advice about what information should or
must be provided and what should not.
The new legislation will not alter any of these concepts. The
proposed liability of directors will mean that it is even more
important that there is focus on preparing for interviews and being
aware of the right to not answer questions if it may tend to
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
The festive activities of staff at employer endorsed Christmas functions should be of concern to employers.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).