Workplace Health and Safety Queensland Investigations – What you need to know
Introduction
The Workplace Health and Safety Queensland (‘WHSQ’) is the regulator in Queensland responsible for monitoring compliance with the Work Health and Safety laws, including the Work Health and Safety Act 2011 (Qld) (the ‘Act’) and conducting investigations into incidents that occur at workplaces in Queensland.
After an incident occurs at a workplace, particularly an incident involving death, serious injury or illness or certain kinds of danger, there is a strong possibility that WHSQ will conduct an investigation at the workplace.
The WHSQ appoint inspectors who have wide range of powers to conduct an investigation, ranging from making an unannounced visit at a workplace to compelling persons to participate in an interview and/or produce information.
Navigating a WHSQ can certainly seem complex and confronting. It is therefore critical that an investigation carried out by an inspector of the WHSQ is taken very seriously and independent legal advice is obtained as quickly as possible to avoid any unnecessary or preventable adverse consequences.
This article will provide a general overview of the investigation powers that inspectors of the WHSQ have and the general process involved in a workplace health and safety investigation. This article should not be construed as legal advice.
Our firm offers a free initial consultation to discuss your matter. Feel free to call our firm on 07 3221 4999 (Brisbane) or on 07 5532 3133 (Gold Coast) to speak with one of our lawyers for a free initial consultation.
Inspector’s general powers of entering a workplace – with or without consent and without notice of entry
An inspector appointed by WHSQ may enter into a place that they reasonably suspect is a workplace, with, or without, consent and without notice of entry.
Once at the workplace, the inspector must, as soon as practicable after entry to a workplace or suspected workplace, take all reasonable steps to notify certain persons of their entry and also the purpose of the entry unless such notice would defeat the purpose for which the place was entered or cause unreasonable delay.
Inspector’s general powers of entering a workplace – with a search warrant
The inspector may apply to a magistrate for a search warrant and may enter a workplace if authorised by a search warrant.
If the inspector enters with a search warrant there are legislative requirements that must be satisfied for the search warrant to be valid.
Generally, before executing a search warrant, the inspector named in the warrant or an assistant to the inspector must announce that they are authorised by the warrant to enter the workplace and give any person at the place an opportunity to allow that entry.
However, they are not required to give notice if they believe, on reasonable grounds, that immediate entry is required to ensure the safety of any person or that the effective execution of the warrant is not frustrated.
The inspector must identify themselves by producing a copy of their identity card and give the person a copy of the warrant to a person who has or appears to have management or control of the workplace.
The general powers of an inspector once they have entered the workplace
- An inspector who enters a workplace may do all or any of the following:
(a) inspect, examine and make inquiries at the workplace;
(b) inspect and examine anything, including a document, at the workplace;
(c) bring to the workplace and use any equipment or materials that may be required;
(d) take measurements, conduct tests and make sketches or recordings, including photographs, films, audio, video, digital or other recordings;
(e) take and remove for analysis a sample of any substance or thing without paying for it;
(f) require a person at the workplace to give the inspector reasonable help to exercise the inspector’s powers under paragraphs (a) to (e);
(g) exercise any compliance power or other power that is reasonably necessary to be exercised by the inspector for the purposes of the Act.
If a person refuses or fails to comply with giving the inspector reasonable help in accordance with (f) above, without reasonable excuse, they could be committing an offence. It is up to the person to demonstrate that they have a reasonable excuse which is lawful.
- If an inspector enters into a workplace or has within the last 30 days of entering the workplace that inspector or another inspector may:
(a) require a person to tell the inspector who has custody of, or access to, a document; or
(b) require a person who has custody of, or access to, a document mentioned in paragraph (a) to give the document to the inspector; or
(c) require a person at the workplace to attend before the inspector at a stated reasonable time and place to answer questions put by the inspector.
The inspector must satisfy certain requirements for (b) and (c).
If a person refuses or fails to comply with any of the three above requirements, without reasonable excuse, they could be committing an offence. It is up to the person to demonstrate that they have a reasonable excuse which is lawful.
In addition to the above, an inspector has powers to:
- make copies or take extracts from a document given to the inspector under a requirement under the Act and keep the document for the period the inspector considers reasonable; and
- seize evidence (which could be anything including a document) if the inspector reasonably believes the thing is:
- evidence of an offence against the Act or take and remove for analysis, testing or examination a sample of any substance or thing without paying for it.
- evidence of an offence against the Act and the seizure is necessary to prevent the thing being hidden, lost or destroyed or used to continue or repeat the offence.
WHSQ’s General powers to obtain information
The WHSQ has general powers to obtain information from a person who they have reasonable grounds to believe that person is capable of giving information, providing documents or giving evidence in relation to possible contravention of the Act or that will assist the WHSQ to monitor or enforce compliance with the Act.
The WHSQ usually exercises this general power by serving written notice on the person and requiring the person to do one or more things.
There are requirements that the written notice must comply with. A person served with written notice must not, without reasonable excuse, refuse or fail to comply with a requirement otherwise they could be committing an offence. It is up to the person to demonstrate that they have a reasonable excuse which is lawful.
Voluntary and compelled interviews
As part of the investigation, an inspector may invite a person to attend a voluntary interview concerning the workplace incident. What may appear to be a casual and friendly chat about the incident often. This is because anything said by the person being interviewed could be later used as evidence against them. Generally, and in most cases, a voluntary interview should be declined.
If a voluntary interview is declined, or if an inspector does not offer a voluntary interview, an inspector may compel a person to attend an interview at a stated reasonable time and place. This is set out above at paragraph 2(c) under the heading The general powers of an inspector once they have entered the workplace.
Again, and importantly, it is an offence for a person, without reasonable excuse, to refuse or fail to comply with this requirement. It is up to the person to demonstrate that they have a reasonable excuse which is lawful.
What happens after the investigation?
While the WHSQ have a wide range of powers, they do not prosecute offences under the Act.
Their role is generally limited to information gathering by conducting an investigation and making recommendations to the Office of the Work Health and Safety Prosecutor (‘OWHSP’) about whether anyone involved in a workplace incident should be prosecuted.
Once the recommendation is received by the OWHSP, there are legislative time limits for the OWHSP to decide whether they decide to commence proceedings for an offence contrary to the Act or Work Health and Safety laws.
If the OWHSP decides to prosecute, it usually begins with a complaint and summons process. The complaint sets out the basis of the charge against the person and the summons requires the person to attend court on a certain time and day.
If you receive these documents it is important to obtain independent legal advice as soon as possible as a lawyer can attend Court with you if you receive a summons. Following the first court appearance, there is a process involved which could result in the charge going forward to a sentence or a trial.
This is why is it is important to engage a firm that has both criminal and civil lawyers, as no matter the nature of the charge that the prosecution are seeking to prove, or what the status of the matter is, the person’s interests will be protected as best as possible in the circumstances.
Next steps
Workplace Health and Safety matters have a lot of moving parts; the investigation being just one of them. Often, the investigation is the most critical component as it is the foundation for the OWHSP to commence a prosecution.
Our firm has both experienced civil and criminal lawyers to assist clients with any WHSQ investigation or prosecution.
Feel free to call our firm on 07 3221 4999 (Brisbane) or on 07 5532 3133 (Gold Coast) to speak with one of our lawyers for a free initial consultation.