Australia: What to do when a WHS Inspector comes knocking

Last Updated: 31 October 2014
Article by Nicole Fauvrelle, Sam Jackson and Jeremy Fultheim

Responding to a Work Health and Safety Inspector Visit

Visits to workplaces by work health and safety (WHS) inspectors are a necessary part of the enforcement regime of WHS regulators. They often occur in circumstances where organisations are under considerable time pressures, particularly following a workplace incident. A new Safe Work Australia report has found that regulators conducted 135,000 workplace visits and handed out nearly 47,000 notices in 2012 - 13. A visit from a WHS inspector may occur for a range of reasons, including:

  • following a workplace incident
  • as part of a regulator's industry specific or plant/equipment target programs
  • as part of a regulator's random inspection program.

Whatever the catalyst for the visit, it is important inhouse lawyers, safety personnel and managers understand the extent of WHS inspectors' powers, to ensure legislation is complied with, and to protect the rights of individuals and the company.

While the powers granted to WHS inspectors are largely similar in all Australian jurisdictions, there are a small number of crucial differences to be aware of. The key differences are outlined below.

Safety of Workers and Others

Following a workplace incident, the first and most important consideration is to ensure the safety of workers and anyone else on the premises. This may include:

  • calling emergency services
  • applying first aid (where qualified to do so)
  • cordoning off the incident site to ensure other workers or passers by cannot access the area and to comply with the duty to preserve the incident site (see below)
  • shutting down/isolating plant or equipment that may pose a risk to health and safety.

Duty to Notify Regulators of Certain Incidents and Preserve the Incident Site

In all jurisdictions, legislation imposes similar duties to notify the relevant regulator of certain incidents, initially by telephone immediately upon becoming aware of the incident, and then in writing within 48 hours.

Determining whether a company is required to notify an incident will be straight forward in many cases, for example where an incident results in a fatality or a serious injury requiring treatment in hospital. However, it may not be so clear for other incidents depending on the company's involvement at the workplace and the consequence of the incident. If unsure, advice should be sought from an experienced WHS lawyer.

Where notification is required, the written notification should be drafted carefully to avoid unnecessarily incriminating an individual or the company. Each of the regulators makes available the necessary forms to complete the written notification on their websites. A copy of the written notification should be kept on record.

Where an incident is required to be notified, each jurisdiction also imposes a duty to preserve the incident site until an inspector arrives at the site, or the regulator otherwise advises that the site can be disturbed. As a result, the incident site should be cordoned off as soon as possible and not disturbed, other than to ensure the safety of workers and others.

The duties to notify incidents and to preserve incident sites are often overlooked. However, failure to comply with either requirement may constitute an offence and result in significant penalties being imposed. WHS regulators have recently shown they are prepared to prosecute companies for such failures.

Inspectors' Powers to Enter a Workplace

WHS inspectors have broad powers to enter any place they reasonably suspect to be a workplace. As noted, the inspection does not need to be in response to an incident at the workplace and could simply be part of the regulator's random inspection program.

Note: In Victoria, WHS inspectors may only enter a workplace during working hours, unless the WHS inspector believes there is an immediate risk to health and safety.

Upon arrival at the workplace, WHS inspectors must announce their arrival and provide identification. In addition, just like all visitors to a workplace, WHS inspectors should be required to undergo any site induction procedures, to wear appropriate personal protective equipment and be accompanied by a management representative at all times.

Note: WHS inspectors are not able to enter residential premises without the consent of the occupier. WHS inspectors are not able to exercise any of their statutory powers when at residential premises.

Inspectors' Powers at the Workplace

When at a workplace, a WHS inspector may:

  • inspect, examine and make enquiries
  • inspect and examine any thing (including documents)
  • bring equipment or material to the workplace (to assist in the investigation)
  • seize any thing that constitutes evidence of an offence (including documents)
  • seize any thing for further examination or testing where the WHS inspector believes such further examination or testing is necessary
  • take photographs or measurements or make recordings
  • give a direction (either orally or in writing) to a person at the workplace
  • require any person to answer questions (see below)
  • issue a statutory notice (see below)
  • require any person to provide reasonable assistance or help to exercise their powers
  • require a person to provide their name and address.

Where a WHS inspector validly exercises their powers of entry, it is an offence to refuse the inspector access to the workplace, or hinder, impede or obstruct the WHS inspector. It is also an offence to assault, intimidate or threaten a WHS inspector.

Inspector's Powers to Inspect, Examine, Seize and Request Documents

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

However, to assist in controlling and monitoring the flow of information to the regulator, WHS inspectors should be encouraged to formalise any requests for documents in the form of a notice seeking production of the documents. This allows time to consider the list of documents sought, review the company's records against that list and seek legal advice regarding the document request if necessary.

Before formally requiring a person to produce a document, the person must be warned by the WHS inspector that a refusal or failure to comply is an offence, unless the person has 'reasonable excuse'.

A 'reasonable excuse' includes:

  • where the document is privileged
  • to take time to consider any questions raised
  • to review any documents that the inspector has requested
  • to obtain legal advice regarding the request.

If it is not clear whether a document is privileged, legal advice should be sought.

A complete copy of all documents provided to the WHS inspector should be retained for the company's records.

Despite the above, a WHS inspector is always entitled to seek immediate production of documents and to inspect, examine and make enquiries.

Control of communications and documentation

To avoid unnecessarily incriminating individuals and the company, where possible, all internal written communication regarding an incident should be avoided, particularly communications containing speculative comments.

Particular care should be taken when drafting incident reports, regulator notification forms and safety alerts, to avoid unnecessarily incriminating individuals and/or the company. If in doubt, assistance from an experienced WHS lawyer should be sought, especially noting that all non-privileged communications may be required to be provided to a regulator during an investigation. This includes emails, reports, safety documentation and board papers.

Answering an Inspector's Questions

The requirement to answer a WHS inspector's questions when at a workplace differ depending on the jurisdiction the workplace is in. For example, in some jurisdictions a person may refuse to answer questions that may incriminate them, while in others, all questions must be answered, regardless of the potential for incrimination.

Victoria and South Australia

In Victoria and South Australia, a person may refuse to answer a question asked by a WHS inspector or otherwise provide information on the ground that doing say may tend to incriminate them personally.

In addition, in South Australia (but not Victoria), the ability to refuse to provide information that may personally incriminate a person extends to incriminating documents.

Note: the ability to refuse to provide incriminating information cannot be claimed by a company.

Other jurisdictions

In all other Australian jurisdictions, a person must answer questions asked by a WHS inspector, even if the answer to the question may incriminate the person. However, the answers are not able to be used as evidence against the person in any civil or criminal proceedings. That is, the answer cannot be used as evidence to prosecute the individual, but it can be used against another person or the company.

Importantly, to ensure the above protection is triggered, the information should not be provided voluntarily. The WHS inspector should be requested to formally exercise their coercive powers to compel an answer by issuing a notice seeking production of the documents, before the answer is provided.

Other Important Rights and Considerations

To control the flow of information with the regulator, a company representative should be appointed as soon as possible, and all questions or communications from the WHS inspector(s) should be directed through that representative. Companies should appoint a back up representative for the times when the principal representative is not available.

The company representative should accompany the WHS inspector at all times while they are at the workplace.

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

Improvement, Prohibition and Non-Disturbance Notices

WHS inspectors are also able to issue statutory notices, including improvement notices, prohibition notices and non-disturbance notices.

It is important to carefully review any statutory notice received to determine if the measures required are reasonably practicable and to determine whether compliance with the notice would have broader implications for the company at a local, state or national level. If the measures required are not reasonably practicable, it may be appropriate to seek review of the notice. Failure to comply with a statutory notice constitutes an offence and may result in significant penalties being ordered.

If unsure, seek advice from an experienced WHS lawyer. In addition to the authors, key WHS contacts for each of our Australian offices are listed below.

Click here to download our WHS Inspector Flowchart.

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.

K&L Gates has been awarded a 2012 EOWA Employer of Choice for Women citation acknowledging our commitment to workplace diversity.

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