The Work Health and Safety Act 2011underpins business operations across Australia. But at 233 pages long, it’s a lot of legislation to read and understand.
We understand, so we’re having a go at doing it for you.
Over a series of posts, Pegasus is explaining the Act and what it means for you and your business – in simple, practical terms to help you better understand your obligations.
Part one covered what it is, part two what your duties are, while part three looked at how you enact it. Today, we look at the independent regulators who uphold the Act and make sure it’s being followed.
It’s important to remember this post does not constitute legal advice, and shouldn’t be relied upon as such. Compliance with this post doesn’t mean your business will have satisfied all WHS requirements.
Part Four: The Inspectors – How Is It Upheld?
In a nutshell
There are inspectors across the country whose job it is to make sure you comply with the Act. When a serious incident occurs at your workplace, you must report it to them.
Let’s take a look
When someone gets hurt at work or an incident occurs, there’s a process you need to follow to report the incident to the appropriate regulator, who will send out inspectors to assess the situation at your workplace.
Who is the regulator?
This will change depending on what state or territory you’re in, but they all have the same purpose – to monitor and enforce compliance with the Act.
- NSW – SafeWork NSW
- QLD – Workplace Health and Safety Queensland
- VIC – WorkSafe Victoria
- ACT – WorkSafe ACT
- SA – SafeWork SA
- NT – NT WorkSafe
- WA – WorkSafe WA
- TAS – WorkSafe Tasmania
What’s an incident?
An incident in this case involves death, serious illness or injury, and the exposure of people to serious risks within the workplace.
Any incident must be reported to the person who conducts the business and to the regulator.
What’s a serious injury or illness?
Something where you need immediate medical treatment. This could include (not limited to):
- Amputation of body part
- Serious head injury
- Serious eye injury
- Serious burn
- Separation of skin from underlying tissue
- Spinal injury
- Loss of bodily functions
- Serious lacerations
What is a dangerous incident?
Under the Act, a dangerous incident could include:
- an uncontrolled escape, spillage or leakage of a substance; or
- an uncontrolled implosion, explosion or fire; or
- an uncontrolled escape of gas or steam; or
- an uncontrolled escape of a pressurised substance; or
- electric shock; or
- the fall or release from a height of any plant, substance or thing; or
- the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations; or
- the collapse or partial collapse of a structure; or
- the collapse or failure of an excavation or of any shoring supporting an excavation; or
- the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or
- the interruption of the main system of ventilation in an underground excavation or tunnel; or
- any other event prescribed by the regulations.
Duty to Notify
This is important. If any incident has occurred in your workplace, you must immediately notify the regulator by phone or in writing (email is all you need). This is an enforceable part of the Act. Failure to notify will result in a fine of $10,000 for an individual, $50,000 for body corporate.
In most cases, there needs to be someone in charge to ensure the site of the incident isn’t disturbed until an inspector arrives. The exception is when you need to assist an injured person, remove a deceased person, or make the site safe to stop the risk from causing further damage.
Records of workplace incidents must be kept for a minimum of five years. The penalty for not doing so is $5,000 for an individual, $25,000 for body corporate.
What do the regulators do?
Under the Act, regulators have many functions and powers. Alongside monitoring and enforcing the Act, they can:
- provide advice and information in relation to WHS
- collate, analyse and publish statistics
- promote and support WHS training
- consult with regulators in other states and territories
Collaboration sets strategic priorities locally and nationally. The more education about work health and safety, the fewer incidents. It’s why you’ll see campaigns developed by the regulators to ensure a consistent approach to the Act across the country.
What rights do regulators have to enter the workplace?
The regulators will send an inspector to a workplace to respond to an incident or complaint, as part of a planned campaign, or to assist in a WHS issue resolution.
They investigate breaches and can also provide you with advice and assistance in meeting your obligations.
Under the Act, an inspector can enter a workplace without consent or prior notice. However, just because they can come without notice, they must take reasonable steps to notify the following people of their visit and the purpose of it:
- The person conducting a business or undertaking (employer)
- Person with management control of the workplace
- Any WHS representatives at work
When don’t they need to notify? When it would defeat the purpose for which the place was entered, or cause unreasonable delay.
So what happens when an inspector is on site?
The powers of an inspector when they attend a workplace are (not limited to):
- Seizing evidence of an offence
- Seizing anything dangerous
- Inspecting, examining, and making inquiries
- Taking measurements, conducting tests, making sketches or recordings (which can include photos, videos and audio recordings)
- Taking samples for analysis
- Exercising compliance power
- Taking affidavits
- Requesting names and addresses of people
Sometimes inspectors are accompanied by an assistant, like an interpreter or technical expert who will have the same ‘powers’ the inspector. There are specific powers for the gathering of information.
What evidence can be seized?
The whole workplace. But also plant, substances and structures. Documents can be seized. An inspector can seize something to prevent it from being hidden, lost, destroyed, or used to cause another offence.
Once something is seized, the inspector:
- Must give receipt for what was seized
- May take the item away, or leave it at the workplace but restrict access (such as sealing an entrance to the room)
- May dismantle seized items
- May issue written notice for the person in control to move it
It’s an offense to tamper with something that has been seized by the inspector.
What do you do when an inspector is at your workplace?
Everyone is encouraged to cooperate with inspectors if they visit your workplace. On occasion you may be required to provide reasonable help. Under the Act, it’s an offence to refuse to help. It’s also an offence to provide false or misleading information to an inspector, to hinder an investigation, or to assault, threaten or intimidate an inspector. It can lead to a full investigation and can result in a fine or prosecution.
Okay, now I know about the inspectors. How do I help them in the event of an incident in my workplace?
We’ve previously discussed the importance of WHS policies in the workplace. Something else that is of great importance is having a process in place if an incident occurs. This makes it more likely that you’re complying with the obligations of the Act.
Incident and Accident Investigation
All incidents, accidents, and near-misses are the result of unsafe acts or conditions. If an incident occurs, it nearly always means something has gone wrong in the Work Health and Safety policy of your workplace.
Part of our obligation with the Act is having in place a system of recording and investigating workplace incidents, damage, near-miss and diseases to prevent it from happening again.
In our experience, having a continual improvement process in place can help you meet your obligations and reduce the frequency of incidents in the workplace. In the context of work health and safety, these efforts can seek incremental improvement over time, or improvement all at once.
How can you promote a culture of continual improvement?
One way you could seek to improve your incident reporting process is by having a documented procedure to address continual improvement which is developed in accordance with AS/NZS 4804:2001 4.5.3 Continual Improvement.
We’re here to help in the most practical way- the Pegasus Safety Management System (SMS) Knowledge Base includes a range of material which outlines process improvement plans, safety performance trending, and suggestions on how you might be able to foster an environment of continuous progress. This may help you comply.
A continual improvement process could (but is not limited to):
- Identify areas of opportunity for improvement of the OHSMS which lead to improved OHS performance
- Determine the root cause or causes of non-conformance or deficiencies
- Develop and implement plans of corrective and preventive action to address the root causes
- Verify the effectiveness of the corrective and preventive actions
- Document any changes in procedures resulting from process improvement; and
- Make comparisons with objectives and targets.
In the final post of this series, we’ll be looking at what happens if you’re found in breach of the Act. Stay tuned.
The contents of this blog post do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Putting in place the discussed policies in this post will not guarantee your WHS compliance. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.