Australia: Top tips for employers regarding work health and safety

Last Updated: 27 November 2015
Article by Jonathon Hadley

When a serious work health and safety incident (Incident) arises in the workplace, matters can unfold quite quickly and it is critical for employers to be appropriately prepared. In this paper we summarise some of the important steps employers should take to ensure they are best placed to effectively respond to and manage an Incident. Whilst we focus on obligations and processes under Queensland law,1 many of the health and safety principles and duties canvassed are common to all States and Territories throughout Australia.

Tip 1 – Be prepared and act immediately

Work health and safety (WHS) legislation in Queensland imposes an obligation on businesses to have formal written procedures in place for responding to and managing workplace emergencies.2 These emergency procedures should be comprehensive and up-to-date, and adequate resources should be allocated to implementing these procedures as required. It is also essential for all workers, including employees, contractors, subcontractors, trainees, apprentices and volunteers, to receive regular instruction and training in the implementation of the emergency procedures.

In addition to having comprehensive emergency procedures solidified before any Incident arises, businesses should do three important things in the immediate aftermath of any Incident.

  1. Assess the Incident site
  2. As soon as management becomes aware of an Incident, appropriately qualified staff should immediately conduct an assessment of the Incident site to determine matters such as:

    • the nature and extent of any injuries suffered by those in the vicinity of the Incident
    • the medical treatment required to treat any injuries sustained
    • whether there is any ongoing threat to the health and safety of those in the vicinity of the Incident and/or the workplace generally (such as fire, release of hazardous chemicals, or structural damage)
    • any measures necessary to secure the Incident site and prevent or limit any further risks to the health and safety of others
    • whether it is necessary to contact any emergency services
    • the identity of any witnesses present at the time the Incident occurred.

    In the case of mine operators, Site Senior Executives (SSE) should also determine whether it is necessary to implement their evacuation and/or rescue procedures as a result of the Incident.

  1. Notify the safety regulator
  2. Businesses are obliged to notify the relevant WHS regulator of any serious Incident that occurs in the workplace. The Work Health and Safety Act 2011 (Qld) (WHS Act) generally requires immediate notification, as does the Petroleum and Gas Act.3 In contrast, the Mining and Quarrying Act and Coal Mining Act require that the regulator be notified "as soon as practicable" after the SSE becomes aware of the Incident. 4

    In some instances, legislation also prescribes certain minimum information that must be provided to the applicable WHS regulator in respect of an Incident, such as precise details about when and where the Incident occurred, the number of people involved, the names of any witnesses or injured parties and a brief description of how the business believes the Incident occurred.5

  1. Preserve the Incident site
  2. Businesses are obliged to secure the Incident site as soon as possible after the Incident occurs and preserve it until an Inspector arrives.6 There is a noteworthy exception to this obligation, where interference is required to assist an injured person, remove a deceased person, or reduce the risk of any further harm occurring.

Tip 2 – Know how to deal with inspectors on site

WHS inspectors have very broad powers once they arrive on site to investigate an Incident. These powers include (but are not limited to inspecting or searching any part of the workplace or Incident site, inspecting any 'thing' at the workplace or Incident site, taking copies of relevant documents, taking measurements or recordings, and requiring any person at the workplace to assist with the exercise of these powers.7

Inspectors also have two further powers that warrant special mention.

  1. Seizure powers
  2. Inspectors are empowered to seize any 'thing' (such as documents or equipment) they reasonably believe may constitute evidence of an offence against the applicable WHS legislation.8 Inspectors may remove the 'thing' from the workplace or site where it is usually stored, or restrict access to it.

    Importantly, the regulator has an obligation to issue a receipt for any seized thing to the person from whom it was seized. The owner of a seized thing also has a right to access it (and make copies, if the thing is a document) whilst it remains in the regulator's possession.9 It is a good idea for businesses to compile a detailed record of all items seized by an inspector in the course of an investigation, and safely care for all seizure receipts they receive.

  1. Power to compel answers and production of documents
  2. Whilst there is some variation between applicable WHS legislation about the exact scope of the power, all inspectors have the authority to direct a person at a workplace or site to produce documents and answer questions relevant to whether a business, or the individual, has complied with their WHS obligations.10

    Inspectors can require a person to answer questions or produce documents whilst the inspector is on site, or at another reasonable time and place of the inspector's nomination.

    The WHS legislation also varies in the extent to which a person can rely on the self-incrimination privilege as a basis for refusing to produce documents or answer questions in response to an inspector's direction.11 Under the WHS Act, self-incrimination is not a reasonable excuse for failing to provide a document or information, but will have an impact on when and how any such evidence can be used in legal proceedings against the individual. In contrast, self-incrimination is a reasonable excuse for refusing to provide information to an inspector under the Petroleum and Gas Act.

    Given the complexity of, and variation between, the obligations that arise under the different WHS legislation with respect to disclosure obligations, businesses should seek urgent legal advice when an Incident occurs in the workplace and an inspector requests documents or information. This will help businesses avoid disclosing potentially incriminating documents or information in circumstances where production may not strictly be required.

Tip 3 – Conduct an internal investigation

Both the Mining and Quarrying Act and the Coal Mining Act expressly require a SSE to carry out an internal investigation into certain classes of Incident that occur in the workplace.12

Whilst there is no equivalent obligation under the WHS Act or Petroleum and Gas Act, businesses outside of the coal and metalliferous mining industries should nevertheless strongly consider conducting an internal investigation into any significant Incident that occurs in the workplace. A failure to conduct such an investigation into an Incident, particularly any Incident that must be reported to the relevant WHS regulator, may constitute evidence of a breach of a business's statutory obligation to ensure the health and safety of its workers by identifying and managing workplace risks.

Who should manage the investigation within the business?

The Mining and Quarrying Act and Coal Mining Act require the SSE to carry out the internal investigation into an Incident on behalf of a business operating a coal or metalliferous mine.
All other businesses should ensure that any investigation is managed by an experienced, senior employee with detailed knowledge of the business's legislative obligations and WHS management system.

How should an internal investigation be conducted?

The legislation does not prescribe exactly how an internal investigation is to be conducted. Although every investigation must necessarily be tailored to some degree depending on the nature of the Incident, all investigations should commence immediately after management becomes aware that an Incident has occurred. Further, those conducting the investigation on behalf of the business should:

  • identify all potential witnesses, take photographs or other visual records of the Incident site and gather any data required to prepare an accurate plan of the Incident site
  • ensure the business's legal advisors are notified that an investigation is underway as soon as possible
  • obtain statements from all witnesses to the Incident as a matter of urgency, ideally no later than 48 hours from the time the Incident occurred (provided this does not pose a threat to the health and safety of the witness)
  • identify any documents (such as internal policies and procedures, job safety analysis, safe work method statements) that applied to any work being performed at the time of the Incident, to help determine whether those involved in the Incident adhered to relevant instructions
  • ensure a report is generated to identify any root causes of the Incident, lessons learned from the Incident and measures that can be implemented to reduce or eliminate the likelihood of a recurrence of the Incident.13

What role do legal advisers play?

Section 269 of the WHS Act expressly preserves a business's right to refuse to produce a document or provide information to the WHS regulator if that document or information is subject to legal professional privilege. Although there is no equivalent clause in the Mining and Quarrying Act, the Coal Mining Act or the Petroleum and Gas Act, businesses subject to these Acts may still be able to resist production with a claim for legal professional privilege.

A claim of legal professional privilege can be made over any written or oral communication between a business and its legal adviser where that communication was made for the dominant purpose of the legal adviser providing legal advice to the business, or for use in existing or anticipated litigation involving the business.14

By involving legal advisers (whether in-house or external) from the outset of an internal investigation, a business may be able to assert legal professional privilege over information gathered, or documents generated, during the investigation that would not otherwise be protected from disclosure to the WHS regulator by the privilege against self-incrimination.15

Tip 4 – Seek help to manage your response to a prosecution

The prospect of being prosecuted for an Incident occurring in the workplace can be quite confronting, and it is important to be aware that both businesses and individuals (such as company directors) can be held liable for breaches of WHS duties. There are several intricacies to effectively responding to and managing a prosecution. It is wise for businesses to seek help from a legal adviser who can assist with the consideration of the following factors.

Are the particulars sufficiently explained?

Before deciding whether to defend a WHS prosecution, a duty holder should consider whether the charge against them has been sufficiently particularised by the WHS regulator.

The value of considering this issue at an early stage was demonstrated by the landmark High Court decision of Kirk v WorkCover Authority of NSW (& Ors)16 (Kirk) which concerned the death of an employee who had been operating an all-terrain vehicle on a farm. The company that conducted the farming business, and the company's director, were charged with breaching their WHS duties. After being convicted at first instance and failing in two appeals, the defendants were ultimately successful in having their convictions quashed by the High Court. The High Court ruled that by failing to particularise the measures the defendants could have implemented to discharge their WHS duties, WorkCover NSW had effectively denied the defendants an opportunity to raise a defence.

The principle established in Kirk (which has been endorsed in a number of subsequent decisions in Queensland and other jurisdictions) 17 demonstrates that one of the first things a duty holder should do, when faced with a charge under WHS legislation, is seek legal advice to determine whether the charge discloses sufficient particulars enabling that duty holder to understand and respond to the case against them.

What are the prospects of successfully defending a prosecution?

Under the WHS Act, the burden of proving that a duty holder has committed a breach sits with the regulator, Workplace Health and Safety Queensland (WHSQ). In the recent case of WorkCover Authority of NSW v Eastern Basin Pty Ltd18 (Eastern Basin), which considered a charge brought under the mirror WHS legislation in NSW, the court outlined that a WHS regulator alleging a breach of the primary WHS duty must prove, beyond reasonable doubt, that:

  • a risk arose from the work carried out as part of the business or undertaking of the duty holder
  • the control measure alleged by the WHS regulator would cause the risk to be eliminated or minimised
  • in all the circumstances, it was reasonably practicable for the duty holder to adopt the alleged control measure.

It is useful for businesses to bear these principles in mind, and seek legal advice in a timely fashion to ensure the prospects of mounting a successful defence can be understood early on.

Think about enforcement measures

Enforceable undertakings

Under the WHS Act, a duty holder can approach WHSQ with a proposal to enter into an enforceable undertaking (EU) in respect of an alleged contravention of the WHS Act.19 An EU is a document that sets out in detail the actions a duty holder proposes to implement in order to remedy the alleged contravention and generally improve WHS standards within the workplace. The benefit of an EU is that when it is accepted by WHSQ, any legal proceedings on foot in respect of the contravention must be promptly discontinued and no further proceedings can be commenced whilst the EU remains on foot, or after it has been completely discharged by the duty holder.20

The measures contained in an EU should be targeted at establishing a best practice WHS culture within the business.21 To be accepted by WHSQ, an EU will typically need to show that the duty holder will fund WHS initiatives that benefit the duty holder's industry, or the wider community.22

When determining whether to accept an EU from a duty holder, WHSQ will consider:

  • the objective gravity of the contravention and the nature of the duty holder's alleged misconduct
  • the duty holder's efforts to remedy and mitigate the alleged contravention, including their conduct towards any person effected by the contravention
  • the duty holder's WHS compliance and workers' compensation management history
  • any submissions received from a relevant party, including injured or ill workers and/or their next of kin, in respect of the contravention
  • any other matters WHSQ considers relevant.23

Pleas in mitigation

Where the prospects of successfully defending a WHS prosecution are limited, and an EU is either unavailable or impracticable, consideration should be given to entering a timely guilty plea and preparing a plea in mitigation.
In many cases, the WHS regulator will be open to collaborating with a defendant on an agreed set of facts regarding the alleged breach for presentation to the court. The defendant can then prepare submissions on the appropriate penalty to be imposed. A plea in mitigation should highlight any favourable factors that may reduce the defendant's culpability in the view of the court.

Whilst it was once customary for the defendant and the WHS regulator to make submissions to the court regarding an agreed civil penalty range for an offence, such submissions may no longer be admissible.24 Ultimately, discretion regarding the appropriate penalty rests solely with the court.

Conclusion

Any business would naturally hope to avoid having any Incident arise in the workplace, but the more realistic and responsible approach is to acknowledge that an Incident may well arise someday, and to be prepared to act swiftly and effectively. These tips should provide some helpful guidance for employers on how best to respond to and manage an Incident, but the precise action required in each case will necessarily vary because no two circumstances will ever be exactly the same.

Footnotes

1 Please note that this paper does not address obligations under the Electrical Safety Act 2002 (Qld), the Transport (Rail Safety) Act 2010 (Qld) or the Safety in Recreational Water Activities Act 2011 (Qld).
2 Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) section 43, Mining and Quarrying Safety and Health Regulation 2001 (Qld) (Mining and Quarrying Regulation) section 35, Coal Mining Safety and Health Regulation 2001 (Qld) (Coal Mining Regulation) section 172, Petroleum and Gas (Production and Safety) Act 2004 (Qld) (Petroleum and Gas Act) section 675.
3 WHS Act section 38, Petroleum and Gas Act section 706.
4 Section 195 of the Mining and Quarrying Safety and Health Act 1999 (Qld) (Mining and Quarrying Act), as well as section 198 of the Coal Mining Safety and Health Act 1999 (Qld) (Coal Mining Act), provide that the regulator must be notified "as soon as practicable" after the SSE becomes aware of the Incident.
5 Mining and Quarrying Act section 195(3A), Coal Mining Act section 198(3A), Petroleum and Gas (Production and Safety) Regulation 2004 (Qld) section 11.
6 WHS Act section 39, Mining and Quarrying Act section 197, Coal Mining Act section 200, Petroleum and Gas Act section 707.
7 WHS Act section 165, Mining and Quarrying Act section 136, Coal Mining Act section 139, Petroleum and Gas Act section 139.
8 WHS Act section 175, Mining and Quarrying Act section 140, Coal Mining Act section 143, Petroleum and Gas Act section 763.
9 WHS Act section 181, Mining and Quarrying Act section 147, Coal Mining Act section 150, Petroleum and Gas Act section 771.
10 WHS Act section 171, Mining and Quarrying Act section 136, Coal Mining Act section 139, Petroleum and Gas Act sections 758 and 761.
11 WHS Act sections 172 and 173, Mining and Quarrying Act section 138, Coal Mining Act section 141, Petroleum and Gas Act sections 759 and 762.
12 Section 198 of the Mining and Quarrying Act and section 201 of the Coal Mining Act require an SSE to conduct an internal investigation into any "serious accident" or "high potential incident" occurring at a mine or workplace.
13 Section 198 of the Mining and Quarrying Act and section 201 of the Coal Mining Act require an internal report to be disclosed to the relevant WHS regulator in respect of certain classes of Incident.
14 Baker v Campbell (1983) 153 CLR 52.
15 In many instances under the WHS Act, Mining and Quarrying Act and Coal Mining Act, the mere fact that documents or information sought by the relevant WHS regulator may incriminate the person or business directed to produce them is not a reasonable excuse for failing to produce the documents or information.
16 (2010) HCA 1.
17 See NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland (2013) QCA 179 and Thomas v Stevlyn Constructions Pty Ltd (2010) SAIRC 46.
18 (2015) NSWDC 92 at [67].
19 See section 216 of the WHS Act. It is important to bear in mind that an EU cannot be accepted in respect of an alleged category 1 contravention of the WHS Act.
20 See section 222 of the WHS Act.
21 See the Guidelines for the acceptance of an enforceable undertaking published by the Office of Fair and Safe Work Queensland, dated 1 September 2014.
22 See the EUs entered into by Queensland Urban Utilities (dated 6 February 2014), the Toowoomba Regional Council (dated 28 February 2014) and Thiess Pty Ltd (dated 24 July 2014).
23 See the Guidelines for the acceptance of an enforceable undertaking published by the Office of Fair and Safe Work Queensland, dated 1 September 2014.
24 See Barbaro v The Queen (2014) HCA 2 and the pending appeal in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate & Ors (2015) HCATrans 149.

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.

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