Australia: "I´m Not @!%#$* Abusing Or #!*&% Obstructing The Inspector!"

Last Updated: 28 July 2008
Article by Glen Bartlett

Key Point

  • It is in the employer's interest to have a prepared plan responding to the Inspector's visit which is co-operative and helpful which also protects the employer's legal and business interests.

A recent WA case acts as a timely reminder of the powers and protections of statutory health and safety inspectors.

In October 2007, the owner of an automotive mobile mechanic business pleaded guilty to using threatening or abusive or insulting language to a WorkSafe Inspector who was lawfully carrying out their duties. The business owner was fined $1000 and ordered to pay $1194 in costs.

The facts of the prosecution case are unremarkable. The owner's workshop was visited by a WorkSafe Inspector who, as a result of the visit, issued five Improvement Notices. The owner was unreceptive to the WorkSafe Inspector. Following the visit a compliance slip indicating that one of the Improvement Notices had been complied with was received by WorkSafe. Several reminder letters were sent to the owner, which were then returned marked "return to sender" by the owner.

The WorkSafe Inspector returned to the workshop to determine if the other Improvement Notices had been complied with. The WorkSafe Inspector informed the owner that he would be required to attend a formal interview. The owner became agitated and abusive towards the WorkSafe Inspector. The WorkSafe Inspector at one point felt that the owner may become violent.

Although many employers do not feel overjoyed with the arrival on site of a WorkSafe Inspector, the above approach, or any approach that hinders, obstructs or abuses a WorkSafe Inspector, is both unhelpful and an offence.

In each jurisdiction, statutory Inspectors appointed under the relevant legislation are given extensive powers to assist them in performing their roles. It is an offence to hinder, obstruct or abuse an Inspector.

Employers, and in fact all persons at a workplace, should be mindful of the obligations towards Inspectors and what powers they can exercise in the workplace.

The specific powers vary from jurisdiction to jurisdiction but frequently include the power to:

  • enter any workplace;
  • interview relevant persons and compel them to answer questions (and in some jurisdictions these interviews can be conducted in private including without legal representation);
  • take samples, or seize and have tested plant or equipment;
  • take documents (other than those covered by legal professional privilege); and
  • give directions, including directions to leave a site undisturbed and issuing Improvement Notices or Prohibition Notices.

Employers are also usually required to provide whatever assistance is required by the Inspector.

It is important to note that, in most cases, seeking to obtain legal advice before answering questions or providing documents is not sufficient to amount to the offence of obstructing an Inspector.

Employers should, as far as possible, foster and maintain a positive working relationship with Inspectors. However, employers must be aware that the evidence obtained by Inspectors can and may be used as evidence in the event that a prosecution occurs for a breach of safety legislation.

Although Inspectors have extensive powers, and should not be obstructed in the performance of their duties, that does not mean that employers should not consider and plan how they will respond to an Inspector's visit.

In this regard, employers should consider:

  • what specific site safety inductions should be carried out;
  • what resources will be made available (for example a room to conduct interviews);
  • who will accompany the Inspector during site visits;
  • what briefing will be given to employees prior to them being interviewed or whether the presence of a legal representative will be requested;
  • who is authorised to speak on behalf of the company;
  • what documents are not required to be provided to Inspectors; and
  • how the company will respond to specific directions or notices.

Inspectors can provide employers with valuable assistance in making a workplace safer. If, however. there has been a breach of the safety legislation, particularly one which has resulted in a serious injury, their focus in conducting an investigation may become orientated to prosecution. It is in the employer's interest to have a prepared plan responding to the Inspector's visit which is co-operative and helpful which also protects the employer's legal and business interests.

Thanks to Rob Greig for his help in preparing this article.

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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