When a Workplace Health and Safety Queensland (WHSQ) inspector contacts your business, whether by phone to arrange a visit or by arriving unannounced at the workplace, knowing how to respond is critical.
Under the Work Health and Safety Act 2011 (Qld) (WHS Act), inspectors can enter any workplace at any time, with or without the employer's consent. The occupier must not refuse entry or obstruct WHSQ inspectors and persons conducting a business or undertaking (PCBU) must provide reasonable help to inspectors carrying out their powers, however, there are important limitations to be aware of.
1. Can inspectors enter without permission?
Under s 163 of the Act, an inspector may enter any workplace at any time, with or without consent. No warrant is required unless the premises are residential.
2. Do inspectors have to tell us they're here?
Yes, as soon as practicable. After entering, the inspector must take all reasonable steps to notify the PCBU, any health and safety representative, and any WHS officer of the entry and its purpose.
3. Do we have to answer questions?
Refusing to provide reasonable assistance without a reasonable excuse is an offence. A PCBU must answer questions and provide reasonable help, however, if an inspector requests a statement from an individual, the individual is entitled to request that the inspector compel them to participate in an interview via a coercive notice (s 155 or 171 WHS Act). If the individual does not, and they participate in an interview voluntarily, that information can be used against the individual in future civil or criminal proceedings.
If the individual is compelled to participate in an interview via a coercive notice, the information provided by the individual is not admissible as evidence against that individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the answer or information.
4. Can they take our documents?
Inspectors may require production of documents on the spot; however, it is critical that a PCBU clarify that the inspector is exercising a coercive power under the WHS Act when requesting documents.
Documents protected by legal professional privilege are exempt from disclosure, even where a coercive document production notice has been issued.
If a request is extensive, the PCBU should request that a coercive notice be issued requiring the production of the documents sought. There is no prejudice associated with a PCBU being issued a document production notice. If an individual produces documents voluntarily, the documents can be used against the individual in future civil or criminal proceedings.
If an individual is compelled to provide documents, the documents provided by the individual are not admissible as evidence against the individual in civil or criminal proceedings other than proceedings arising out of the false or misleading nature of the document. Note, documents provided by a business in response to a coercive document production notice can be used as evidence against that business.
5. If an inspector can compel the production of documents and information via a coercive notice, why does it matter if we produce documents or provide information voluntarily?
If the PCBU is as an individual they may be incriminating themselves (refer to the answers above).
The inspector must satisfy compliance with criteria under s 155 or s 171 WHS Act when issuing a coercive notice, meaning a voluntary request for information or documents might be broader than what can lawfully be requested via a coercive notice.
Providing information or documents voluntarily does not invoke the exemptions that otherwise apply to disclosure in response to a coercive notice under privacy legislation.
The article is general in nature and is not legal advice. The answers to these questions are ultimately fact-dependent and we recommend that you get legal advice tailored to your situation.
If your business needs legal assistance in relation to a workplace incident or WHSQ investigation, please reach out to Mason Fettell and the team at Piper Alderman.