Australia: Managing The Worksafe Investigation Process

Melbourne based Occupational Health & Safety partner Mark Waters discusses what to do if a WorkSafe inspector comes knocking.

The answer is "don’t panic". There are a number of reasons why a Workcover inspector might pay your workplace a visit, and some of those reasons could actually be positive.

In many cases, the visit might be an opportunity for the workplace to obtain information about compliance with the laws and regulations and build a relationship with inspectors. In my experience, that can be invaluable.

The purpose of this article is to give you an overview of the rights and responsibilities of those involved in the investigation process.

A WorkSafe inspector has the power to investigate "all persons associated with the operation of work places and undertakings" including employers and employees, company officers, plant designers, installers and manufacturers. From time to time, inspectors will also target "focus areas for prevention" and you should watch the media and the WorkSafe website for announcements.

An investigation will usually commence as a result of a fatality, serious workplace incident, a non-compliance which is brought to WorkSafe’s attention or in a "focus area for prevention".

On the inspector’s arrival at a workplace, he or she must inform the occupier, produce an identity card and explain the reason for the visit. I recommend that the senior manager for the workplace or work area should be the person to liaise with the WorkSafe inspector as soon as the investigation commences and he/she should inform any employee health and safety representatives. In those cases involving a fatality or notifiable incident, I recommend the senior manager instruct external solicitors to ensure the results of the internal investigation can be subject to a claim for legal professional privilege.

It is important to note that most WorkSafe inspectors hold trade or professional qualifications and experience, and all of them hold health and safety qualifications. Accordingly, they are very familiar with workplace processes, operations and hazards.

WorkSafe inspectors have wide powers at the workplace, including to:

• inspect, examine and make enquiries;
• bring any equipment or materials to the workplace that they require;
• seize any documents or other things at the workplace, including plant or substances required for further examination;
• take photographs, measurements, make sketches or recordings; and
• take formal records of interview.

They also have the power to issue notices to prohibit use of any plant and equipment, or to insist on improvement to certain aspects of the workplace where the non-compliance does not involve an immediate risk to health and safety. Notice recipients have the right to seek a review, both internally with WorkSafe and externally at the Victorian Civil and Administrative Tribunal, but those rights must be exercised quickly and you should obtain legal advice before proceeding.

The senior manager should:

• ensure that he or she retains records of any items seized and copies of any documents taken;
• retain part of any samples or substances taken;
• ensure that someone is present during any records of interview, preferably a management representative (although you can’t insist on this) together with a colleague, union delegate or employee health and safety representative;
• confirm with the WorkSafe inspector where and when any photographs, measurements and the like will be available for inspection.

When making a statement to a WorkSafe inspector, the person being interviewed should:

• give concise answers, limited to the questions asked;
• provide only factual information within his/her direct knowledge, experience or expertise (and don’t offer opinions or speculation);
• not answer if he/she does not know or is unsure;
• if uncertain, ask for the interview to be suspended and seek advice.

At the end of the inspection, the WorkSafe inspector must produce a report for the workplace including full details of the inspection, relevant contact details and rights of review. The WorkSafe inspector may also seek further documents and the management representative should require that request be put in writing.

The WorkSafe inspector may be interested in any material that demonstrates compliance with the relevant laws. Therefore, I recommend that all of the following matters should be brought to the inspector’s attention, whether or not they are requested:

• any employee and/or contractor induction programmes;
• risk assessments and risk control plans;
• health and safety policies, manuals and other guidance material;
• warnings in and around the workplace;
• appropriate machinery guarding, personal protective equipment and designated walkways;
• counselling and return to work programmes available to injured employees;
• improvements to health and safety in the workplace as a result of the investigation or incident.

With these things in mind, the WorkSafe investigation should proceed fairly smoothly for the employer. However, if any matters arise which cause concern, advice should be sought.

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.