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Tuesday 30th June 2015
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When the investigator comes
knocking, will you be ready?
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In today's Health & Safety Bulletin:
- Why the long arm of the law could be longer than you think – and what to do if you are investigated
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Dear Reader,
When it comes to investigations by health and safety inspectors, the question for most businesses is not “if”, but “when”.
When will an incident happen at work, even if you took painstaking care to properly maintain equipment and train and induct employees? |
When will an industry-wide enforcement initiative put your business and others like it in the spotlight?
And when will one of your workers decide (whether they’re being reasonable or not) to take it up with your health and safety watchdog and raise a complaint?
Supreme Court decision: regulators have broad powers
When you’re not in the gun, it’s easy to forget how extensive the powers of health and safety regulators are.
In a NSW Supreme Court decision earlier this month, Perth-based mining company Perilya was fined for not complying with the NSW regulator during an investigation into an incident at one of its mines in NSW.
The Court found that the regulator’s powers:
- Cross borders. That is, it didn’t matter that Perilya’s business was registered in WA, which has a different health & safety framework. The NSW regulator could still issue notices and require documents to be produced.
- Extend to documents that don’t refer to health & safety. The Court found that the information-gathering powers of the regulator go beyond what might be ordinarily considered health & safety documents and include anything that may help it monitor or enforce health & safety compliance. This can include things such as minutes of board meetings.
- Look at what’s not said, as well as what’s said. In an investigation, your business documents can be relevant not just for what they record – but what they fail to record.
As you can see, that’s a lot of ‘oomph’ behind the regulator. So when the investigator knocks, will your business be able to follow these steps? |
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Meet your initial entry obligations
You are obliged to grant a health and safety inspector access to your workplace. And if you obstruct an inspector’s entry, you may face criminal charges.
However, an inspector must take reasonable steps to notify you of their entry, and in most situations they should produce their identity cards to prove they are who they say they are.
Don’t get off on the wrong foot! A defensive or hostile response from you or your workers at the beginning of an investigation could come back to haunt you later on.
Comply with any notices
A health and safety inspector may issue your business with a notice. This is a lawful direction which you must comply with.
If you are issued with a non-disturbance notice, this means you and your workers must not use a specific piece of plant or equipment for a fixed period of time. This will usually be issued so that an inspector can collect further evidence.
If you are issued with an improvement notice, this means the inspector has identified a health and safety risk and requires you to remedy it within a fixed amount of time.
If you are issued with a prohibition notice, that means the inspector has identified an activity in your workplace that must be stopped immediately, pending further action to eliminate or control a risk.
What if you disagree with a notice, or the effect it would have on your business? You still have options, which the Health & Safety Handbook goes into further in its chapter on Enforcement and Prosecution (Chapter E2).
Ask about an ‘enforceable undertaking’.
If an investigation shows that you have breached health and safety laws, you may be able to avoid fines or prosecution by entering into an enforceable undertaking.
An enforceable undertaking requires you to:
- Admit you breached your health and safety obligations, and;
- Agree to undertake certain activities to remedy the breaches and improve safety overall.
If you propose an enforceable undertaking to the regulator and it is accepted, you will not be prosecuted for a breach.
Do you need a lawyer?
If a serious or notifiable incident has occurred in your workplace, you should be prepared to seek legal advice and engage the services of a lawyer.
Some of the reasons why should be obvious. There may be a risk that you or someone else will be found personally liable for a breach of health and safety legislation.
Or, the investigation and prosecution could involve a complex point of law that’s best left to the professionals.
There’s also the advantage of attaching legal professional privilege to your communications. You have the right to claim confidentiality over reports and documents created during an internal investigation if the investigation has been undertaken for the dominant purpose of obtaining legal advice about a breach or incident.
Anything protected by legal professional privilege cannot be used in a court or tribunal.
Don’t let it happen to you…
It’s important to remain calm – and compliant – if you are facing investigation and possible prosecution for a breach of health and safety law.
But negotiating an expensive enforceable undertaking or spending thousands on lawyers’ fees is a poor substitute for meeting your legal obligations in the first place.
If you’ve taken all reasonably practicable steps to eliminate, minimise, and control risks in your workplace – including following our 12 step guide on How to Develop a Safe Operating Procedure - you’ll be able to satisfy the regulator, and avoid prosecution.
In other words, you’ll be ready for ‘when’, not wondering about ‘if’.
Take care,
Joseph Nunweek
Editor, Health & Safety Bulletin
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