When WorkSafe calls: What you must do? What you should do?

11 April 2023

A WorkSafe inspector (inspector) visits a workplace if there has been a safety incident resulting in an injury or fatality, or alternatively in the case of a ‘near miss’, where nobody has actually been injured.

A version of this article was first published by AMT Magazine in April 2023.

An inspector is at the centre of enforcing the Occupational Health and Safety Act 2005 (OHS Act), and also the Dangerous Goods Act 1985 and Equipment (Public Safety) Act 1994.

This article focuses on an inspector’s powers under Part 9 of the OHS Act, therefore this article only applies to Victoria. The offences, powers, rights and penalties that apply in the rest of
Australia under the Work Health and Safety Act in each state and territory are different to the OHS Act in Victoria.

Power of entry

An inspector has power of entry to visit a workplace at any time during working hours. If a business is closed, an inspector cannot enter premises, unless an inspector reasonably believes an immediate risk to a person’s health or safety exists. An inspector must take all reasonable steps to notify their arrival to the occupier, members of a designated work group and any health
and safety representative (HSR).

Who must co-operate

An inspector must produce their identity card, and warn a person that a refusal to comply without a reasonable excuse is an offence.

The category of ‘persons’ who must co-operate include an:

  • occupier or apparent occupier;
  • employer with the management and control of a workplace; or
  • employee at a workplace.

A person must provide their name and address, and answer an inspector’s questions, unless an answer might incriminate the person giving answers.

An inspector can demand any documents by issuing a notice under section 100 of the OHS Act. If the request includes any incriminating documents, for example where a business has conducted its own internal investigation revealing safety flaws, it must be provided.

Powers in the workplace

In the workplace, the inspector has six specific powers:

  1. inspect, examine and make enquiries;
  2. inspect and examine anything;
  3. bring any equipment or materials to the workplace as required;
  4. seize anything including a document as evidence;
  5. seize anything for further examination or take a sample; and
  6. take photographs, measurements, sketches or recordings.

An inspector can still exercise any other OHS Act powers.

Entry report

After their visit, an inspector must provide an entry report to the occupier, members of a designated work group work, and any HSR.

The entry report must detail time of entry and departure, purpose of entry, description of things done, summary of observations, and the inspector’s contact details.

Other powers

An inspector may also issue a non-disturbance notice, an improvement notice or a prohibition notice. There is a limited timeframe to challenge any of these notices.

What happens after an inspector’s visit?

After the initial visit, the inspector may visit again as needed while WorkSafe consider whether to commence a prosecution against a company, a director, or less commonly, an employee.

For almost all offences, WorkSafe has a two year time limit to prosecute under the OHS Act. The exception is workplace manslaughter, where WorkSafe has no limitation period.

What should your business do?

How would your business react if WorkSafe visited your premises following a serious incident?

Questions to consider include:

  • Who calls an ambulance or doctor?
  • Who contacts the family of an injured worker?
  • Who arranges for professional counselling of fellow workers who have witnessed a traumatic incident?
  • Who ensures HSRs are involved?
  • Who notifies WorkSafe?
  • Who is nominated to speak to the media?
  • Who is the company contact person to assist a WorkSafe inspector?

You may have one person, such as a safety manager, who performs all of these tasks. Alternatively, these tasks might be allocated to different company employees as part of an advance plan on managing a workplace incident.

The worst approach is to have no plan!

There have been scenarios where the deceased family is never spoken to, or a casual employee is requested and provides media comment, or where WorkSafe is never informed of a serious incident. When shock and panic take control, it is often too late to calmly consider each of these critical matters on the spot when they arise.

Legal advice can play an important part. This may include whether:

  • a workplace investigation can be conducted under legal professional privilege to obtain confidential legal advice about a possible OHS Act breach. The legal advice and any technical report is exempt from the obligation to provide documents under a section 100 notice; or
  • a director or employee is at risk of self-incrimination if they answer all questions put by an inspector. A director or manager are usually at greater risk of prosecution. If entitled to exercise a right to silence, then this right operates as a lawful reason not to answer an inspector’s questions.

Contact us

If you would like to discuss any aspects of WorkSafe and their impact on your business, or if you require assistance with understanding your obligations as an employer, please contact a member of our Workplace Relations team.

Disclaimer: This publication contains comments of a general nature only and is provided as an information service. It is not intended to be relied upon, nor is it a substitute for specific professional advice. No responsibility can be accepted by Rigby Cooke Lawyers or the authors for loss occasioned to any person doing anything as a result of any material in this publication.

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