MANY employers don’t know what to do or how to respond when WorkCover inspectors arrive at their premises – often unannounced – to investigate actual or suspected OHS breaches.
Although the laws vary from State to State, inspectors typically have wide powers. These include the power to inspect, examine and take tests of items; take photos, videos and audio recordings; take samples of substances and dismantle, take and keep other items relevant to their investigation.
Most importantly, inspectors may require people on-site to answer questions and produce documents. In this sense, the employer and its employees do not usually have a right to silence.
Given this, employers need to understand their own rights and obligations, and how best they should deal with visiting inspectors.
In some States, the workplaces that inspectors are authorised to enter go well beyond the traditional offices, building sites or factory floors with which most people are familiar.
In NSW, for example, a place of work means any premises where people work.
Where an employer knows in advance that it will be visited by a workplace inspector, it should consider obtaining legal advice to ensure not only that its safety obligations will be met but also that it, and its officers, will be protected appropriately.
Although WorkCover inspectors are not required to give notice of their intention to enter an employer’s premises, after having entered them, they must notify the occupier as soon as is reasonably practicable.
This requirement can be ignored only when the occupier was notified in advance or the matter is urgent and notification would unreasonably delay the inspector.
With the exception of urgent matters, entry may occur only at a reasonable hour in the day time or at any time when work is carried on, or is usually carried on, at the premises.
An inspector may use reasonable force to gain entry in cases of emergency, or with WorkCover’s written authority.
Except in certain circumstances, anyone who refuses or fails to comply with a requirement to produce information, documents or evidence, without reasonable excuse can expect to face hefty fines. This includes anyone who knowingly provides false information in response to a notice.
In NSW, the maximum penalty is $11,000 for a first offence and $16,500 for repeat offenders.
There are some exceptions to this requirement:
(1) A person is able to lawfully refuse to answer questions or produce documents where to do so would reveal communications between a lawyer and their client made for the purpose of giving or obtaining legal advice or services.
(2) Where a person objects to a question asked of them on the basis that the information might incriminate them, any information given will not be admissible in court against the person in OH&S proceedings.
However, the person must still respond to the question, as the information can be used against a corporation.
(3) A person or body corporate will be able to avoid complying with a requirement to give information where they can show that they had a reasonable excuse.
The Victorian OHS regime with regard to rights of entry is similar in many regards to the NSW system. However, the penalties differ for failure to comply.
For failing to produce a document or answer a question without reasonable excuse, individuals can be fined $6,607.20 and body corporate $33,036.00.
Employers can use a range of strategies to lawfully and effectively deal with issues that arise during any interview with a WorkCover inspector.
A good first step is to have your lawyer present. Regardless of whether or not this occurs, you should listen carefully to the inspector and object to any questions that may incriminate you.
However, you need to be aware that in some jurisdictions, such as NSW, you will still need to answer the question as the information can be used against a corporation.
You should respond only to specific questions. If a question is vague, ask the inspector to rephrase it more sharply.
If the question is complex, ask the inspector to break it down into its component parts and answer those parts. Provide explanations or qualifications as required and make sure that the answers you give are based on your direct knowledge.
Remember that the inspector is not there to have a chat with you. He/she is there to gather information which could be used in court proceedings.
You should avoid accepting “facts” that are put to you if these contain assumptions or involve speculation. Resist any temptation to blame, speculate, guess or rush to give a response – it could lead to an uninformed answer. In most jurisdictions, a statement will be made of the interview.
Make sure you carefully check your statement before signing it off as a true copy. In addition to WorkCover inspectors, authorised union representatives are permitted to enter workplaces for occupational health and safety purposes.
The proviso is that such representatives must have a permit which they are required to show on entry, and there must be members of the union or persons eligible to be members of the union, employed at the workplace.
Although this area of the law is regulated by State legislation, the Federal Workplace Relations Act also regulates union right of entry for OHS purposes for constitutional corporations and premises occupied or used by the Commonwealth.
Where this Act applies, a union official must hold a federal permit to exercise right of entry. Employers are entitled to ask to see the permit to ensure both the identity of the person, but also the legal basis of the entry.
A right of entry permit can be revoked if it is misused. Employers should be aware that it is an offence to refuse entry to someone who is authorised or to hinder them in the exercise of their lawful powers.
Authorised union representatives may enter a workplace without notice but must notify the occupier of their presence as soon as reasonably practicable after entry.
After gaining entry, they may conduct searches, take recordings and inspect and take copies of documents. In most jurisdictions, union officials do not have a right to take statements.
* John Stanton is workplace relations and safety partner in the Sydney office of Australian Business Lawyers.