Kathryn Dent, Director and Elizabeth Kenny, Graduate Associate
State and Territory work health and safety (“WHS”) laws which govern work health and safety attract criminal sanctions, not the least of which are the significant penalties which may be imposed and they also confer broad powers on various persons to enter workplaces and investigate “risks” to health or safety. These laws often operate in conjunction with various other workplace laws and these “5 Fast Facts” explore the relationships as well as the various powers.
FACT 1: Did you know that applications for bullying orders can lead to referrals to WHS regulators and the two proceedings are not mutually exclusive?
The introduction of the anti-bullying jurisdiction under the Fair Work Act 2009 (Cth) (“the FW Act”) has raised potential dangers for employers where anti-bullying orders are made by the Fair Work Commission (“FWC”). The dangers are now an increased exposure to orders under the FW Act at the same time as, prior or subsequent to investigations and prosecutions under WHS laws. The WHS laws do not allow individuals to bring civil action, however, the FW Act expressly allows prosecutions to be brought under WHS laws notwithstanding an anti-bullying application. The exposure of an employer and its employees is now significantly increased and this exposure is amplified by the ability of the FWC to refer matters to the WHS regulator.
Under the FW Act, a worker in a constitutionally covered business, who reasonably believes that he or she has been bullied at work, may apply to the FWC for an order to stop the bullying conduct. The FW Act adopts the same broad definition of worker included in the WHS Act which extends the scope of the provision to include a-typical workers such as sub-contractors, interns and labour hire workers. The FWC is required to consider specified matters, and any other matters that the FWC deems relevant in considering the terms of the order. This can extend to the FWC having regard for whether the application raises issues that might be more effectively dealt with by the WHS regulator and as such, the FWC has the additional power to disclose information to the WHS regulator. The interaction of these laws create a symbiotic relationship that facilitates the flow of information and referral of matters between the FWC and the relevant statutory WHS authority in each jurisdiction.
FACT 2: Did you know that organisation officials (such as union officials) do not have the power of right of entry for WHS purposes under the new FW Act?
The FW Act gives organisation officials who are “permit holders” (and federally registered) a statutory right of entry to premises for the specific purposes outlined in the FW Act. Employers should be aware that the scope of the FW Act does not extend to the right of entry of organisation officials into a workplace for work health and safety purposes. This right can be found in specific WHS laws and so it is those laws which will dictate whether there is the basis for a right of entry, what permits the person seeking to enter must have and other prescribed requirements to allow for lawful entry.
What the FW Act does impose, are further restrictions on an organisation official that wishes to enter a workplace for the purposes of work health and safety audit and compliance. An organisation official that has a statutory right under a WHS law, and thus holds a WHS entry permit as outlined by WHS law, who wishes to exercises their Federal right of entry must also hold a permit under the FW Act or a State or Territory industrial relations entry permit before entering a workplace.
It is important that employers are aware of the obligations that arise out of the interaction of the WHS Act and the FW Act and ask to see both permits in the event that an organisation official asks for access to your workplace for the purposes of work health and safety. Additionally employers should have no reservations about ensuring the purposes of the visit are lawful nor enforcing the requirements in terms of the entry itself, notice, and where the officials may visit and whom they may visit. Given that union officials may in New South Wales bring prosecutions for breaches of WHS laws, it is imperative the employers are familiar with their obligations and entitlements in relation to the various types of right of entry.
FACT 3: Did you know that workcover inspectors have a broad scope of power to enter premises under WHS legislation?
Under the WHS Act, an inspector may at any time, with or without consent, enter a place that is, or that inspector reasonably suspects is a workplace. An inspector who enters a workplace may do any or all of the following:
- inspect, examine and make inquiries
- take measurements, conduct tests and make sketches or recordings
- take and remove samples for analysis
- require the production of documents
- ask questions and conduct interviews
- seize anything as evidence
- request a person’s name and address
- take affidavits or other witness statements
- exercise any other power that is reasonably necessary for the purposes of the WHS Act.
While inspectors are granted a broad scope of powers under the WHS Act, employers, who are a “person conducting a business or undertaking” (“PCBU”) retain certain rights when dealing with inspectors that may wish to gain entry to their workplace. This is particularly important in the event of an investigation into a fatality or serious injury.
Firstly, upon arrival at the workplace, a PCBU has the ability to direct an inspector to undertake any relevant site induction, wear appropriate personal protective equipment or be accompanied by a management representative at all times during their visit. If an inspector wishes to inspect, examine or seize anything in the workplace, including documents, PCBUs have the right to claim legal professional privilege over documents subject to the privilege. In circumstances of a fatality or serious injury or where an employer is unsure of their obligations, it is advisable that employers appoint a lawyer to assist with interviews and investigations given the criminal consequences which may flow from any WHS risk. PCBUs should be aware that it is an offence to hinder or obstruct, impersonate, assault, threaten or intimidate an inspector and must keep this in mind when directing an inspector within their workplace.
The requirement to answer WHS inspectors’ questions differ depending on the jurisdiction that the workplace is in. In New South Wales, a person must answer all questions asked by a WHS inspector, even if the answer may be self-incriminating. If a person is required to answer a question or provide information or a document, the inspector must first identify themselves, warn the person that failure to comply with the requirement to answer or produce without a reasonable excuse constitutes an offence, warn the person that they are not excused on the ground that they may incriminate themselves and advise that legal professional privilege can be claimed. It is not an offence to refuse to cooperate if this warning is not given. It is important
for PCBUs to remember that the answers to these questions or any document or information produced cannot be used as evidence against the individual themselves after this warning has been given, but can still be used as evidence in the prosecution of another. Again the assistance of lawyers with this process have a multitude of benefits including becoming familiar with rights during an interview, clarification of the purposes of the investigation, protection as is permitted and prior to any investigation ensuring that as far as possible the process and any documents produced and advice given is protected by legal professional privilege.
FACT 4: Did you know that you can ask for a review of an improvement and prohibition notices if they are not ‘reasonably practicable’?
Inspectors have the authority to issue improvement notices and prohibition notices as a result of enforcing compliance with WHS laws. While improvement and prohibition notices are an important enforcement mechanism, PCBUs should be aware that inspectors may sometimes go further in expected compliance measures than may be reasonable or lawful. If a PCBU knows they cannot comply with a notice, the WHS Act provides a right of appeal mechanism to have the notice reviewed andre-issued. There are also mandatory requirements of notices; the failure by the inspector to comply with them can also lead to a technical challenge of the notice.
Improvement notices are a statutory notice issued by an inspector that requires a person to carry out certain actions within a certain time. This is generally issued when an inspector believes or knows that someone is breaching, or has breached, a provision of the WHS Act or Regulations. A prohibition notice is a notice that prohibits an activity or an activity being carried out in a particular way that an inspector believes involves, or will involve a serious or immediate threat to the health and safety of any person. This may involve stopping an activity from happening or the use of an item or workplace instrument or machine. A prohibition notice stays in place until an inspector is satisfied adequate action has been taken to remove the threat.
Firstly, a PCBU must review the statutory notice and determine whether the measures are reasonably practicable to be implemented into the workplace. It may be advisable to seek advice as to whether your organisation is able to comply with the terms of the notice. If your organisation cannot meet the terms of the notice as they are not reasonably practicable, it may be appropriate to seek review of the notice by the WHS regulator. It is important not to ignore the notice as a failure to comply constitutes an offence and may result in significant penalties. “Reasonably practicable” means that which is, or was at a particular time, reasonably able to be done to ensure health and safety, taking into account and weighing up all relevant matters including the likelihood of the hazard or risk occurring, the degree of harm that might result, the availability and suitability of ways to eliminate and minimise the risk and the costs associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
Fact 5: Did you know that there are codes of practice that offer guidance for PCBUs and can be used as evidence in a WHS prosecution for prosecution and defence?
WHS Codes of Practice (“Codes”) offer practical guidance to achieve the standards of health, safety and welfare required by the WHS Act and Regulations. These Codes are admissible in Court and can be relied on by either the prosecution or defence in proving compliance or non-compliance in a breach of WHS law. There are 24 Codes that came into effect in the Commonwealth in 2012, relating to various risks and hazards within the workplace. The Codes apply to anyone who has a duty of care in the circumstances detailed in the Code.
The current Codes which may be of most application in workplaces include:
- First aid in the workplace
- Hazardous manual tasks
- How to manage work health and safety risks
- Managing electrical risks in the workplace
- Managing the risk of falls at workplaces
- Managing the work environment and facilities
- Work health and safety consultation, coordination and cooperation
Employers must be aware that an inspector can refer to a Code when issuing an improvement or prohibition notice. PCBUs should refer to the Code that is relevant to their organisation’s various activities when implementing systems into their workplace to make sure they are compliant with the legislation. The admissibility of the Codes allow the Courts to refer to the guidance as evidence of what is known about a hazard, risk or control and rely on it to determine what is ‘reasonably practicable’ in the circumstances to which the Code relates. Therefore, the Codes can also be used as a defence by PCBUs in WHS prosecutions to show that they mitigated a risk or hazard by following the guidance set out in the Codes. However, it is possible that regardless of compliance, if other measures were reasonably practicable and not taken, a breach may still have occurred and PCBUs should maintain up-to-date records of their compliance with the Codes.
There is significant overlap in the operation of WHS laws and the FW Act particularly as regards bullying and rights of entry. Employers need to be aware of both their obligations and exposure to applications and prosecutions and ideally prevent these risks but if they occur then act to best mitigate any damage in the way they respond to complaints/grievances, notifications of incidents, WHS notices and exercises of right of entry.