What are the powers of workplace health and safety regulators? What should you do (and not do) if there is an incident at your workplace and an inspector arrives?
The rights and roles of each party were explained in a seminar conducted by the Australian Human Resources Institute (AHRI) in Sydney recently.
Note: The presentation was based on the requirements of the NSW Work Health and Safety Act 2011.
The first priority is the welfare of the person involved, who may require first-aid or medical attention. Once that happens, if the incident is a notifiable one (as defined in the Act), the following steps are required:
For some organisations, such incidents are considered the biggest health and safety risk, but legislation is not always clear on notification requirements.A suicide at work is obviously notifiable. So would be one outside work if it was linked in some way (eg the employee left a note that mentioned workplace bullying). A breakdown that resulted in hospitalisation would also be notifiable.
The presenters said that Safe Work NSW is now focusing on “non-traditional” industries as well as traditional ones such as mining. For example, it is paying greater attention to office-based issues such as psychological injury, bullying and violence, but the presenters suggested it may not have as great an understanding of these issues and workplaces.Inspectors don’t only respond to incident notifications. They can also act on their own volition and respond to complaints about safety and welfare issues.
Sections 163 and 164 of the Act set out the specific entry powers of workplace inspectors.
Employers should:
The presenters commented that people generally are more willing to talk to police than regulators and inspectors. However, police are seldom interested unless there is a fatality, and in any case regulators and inspectors can obtain information from them.
The presenters summarised these powers, which are set out in sec 171 (production of documents) and 172 (protection against self-incrimination) of the Act.Inspectors can ask employees to provide “reasonable help” (such as moving a forklift or truck that an inspector is not licensed to use) and can exercise any power “reasonably necessary” for compliance.
Other important points:
An interviewee can also refuse to answer if he/she is psychologically unwell or has a genuine concern about possible prosecution.
Employers should explain clearly to interviewees what their legal obligations and rights are.
Section 155 of the Act sets out powers relating to obtaining information. Also relevant are some protections of information set by sec 271.
Improvement notices are covered by sections 191-194 of the Act and prohibition notices by sections 195-197.The presenters commented that regulators can use these notices to make a case for later prosecution. Even if the employer complies with the notice, regulators can claim it was therefore possible for the employer to have complied before the notice was issued. Employers are entitled to request a review of an improvement notice within 14 days of issue if they believe it would be impracticable to implement (eg due to cost or disruption to workplace). Further information Presenters: Scarlet Reid (partner) and Nathan Roberts (associate), McCullough Robertson Lawyers. Further information about this event is available from AHRI.
Originally posted on http://workplaceohs.com.au
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