Ben Urry, ASSOCIATE DIRECTOR
Even where an organisation has implemented “best practice” procedures and training with respect to work health and safety (“WHS“), things can and do go wrong. Where a WHS incident occurs, the important thing for an organisation is how it responds to the incident. Responding in an appropriate and timely fashion can make a significant difference to the level of liability and exposure for an organisation as well as for individual workers, managers and officers who may be involved in the incident.
A common complaint raised by organisations with respect to WHS is that it is “too hard”, “too complex” or “too expensive” to comply. While a proactive and preventive approach (including policies, procedures and training) is the best way to reduce the overall risks to WHS, in the event that an incident occurs, an organisation needs a strategy to frame how it will react. A thorough understanding of the parameters of the obligation to notify a health and safety regulator (“Regulator”), when it may be necessary to seek legal advice, and the rights and obligations of duty holders and the Regulator, can make a considerable impact on the outcome.
Uncertainty over incident management: statistically speaking
In a report published by SafeWork Australia in August 2016 titled “Perceived Levels of Management Safety Empowerment and Justice Among Australian Employers”, small to large businesses were surveyed as to how well they believed they managed WHS. These statistics reveal that, especially among small businesses (which make up over 90% of all Australian businesses), incident management and reporting still has a long way to go. By way of example:
- 45% of small businesses (having less than 19 employees) do not collect accurate information from incident investigations;
- approximately 32% of small businesses look for someone to blame rather than the underlying causes when investigating an incident;
- businesses with young workers tended to be more safety conscious than other businesses; and
- 10% of businesses in the manufacturing, transport, postal and warehousing industries indicated that fear of negative consequences discourages workers reporting incidents.
It is crucial for businesses of all sizes to understand the basics of incident management.
What is notifiable?
So what if someone is injured or falls ill? Should you be informing the Regulator each time someone gets a paper cut or only where there is a fatality? How soon should you tell the Regulator? Given that the Regulator is often the authority that can bring WHS prosecutions against organisations and individuals, care should be taken in meeting your notification obligations. In jurisdictions which have adopted the model WHS laws (being all States and Territories other than Victoria and Western Australia), it is a requirement that the Regulator be notified immediately if it constitutes a “notifiable incident”. But what does this mean exactly? A “notifiable” incident is defined to include a death, serious illness/injury or dangerous incident.1
A serious illness/injury includes:
- immediate treatment as an in-patient in hospital;
immediate treatment for:
- serious head/eye injury, burn or lacerations;
- separation of skin from underlying tissue (e.g. scalping or degloving);
- spinal injury;
- loss of a bodily function;
- medical treatment within 48 hours of exposure to a substance; and
- anything prescribed by the Regulations (for example, in NSW this includes such things as infections associated with blood- borne illnesses and occupational zoonoses such as Q-fever or Hendra Virus).2
A dangerous incident includes:
- escape, spillage or leakage of a substance;
- implosion, explosion or fire;
- escape of gas, steam or a pressurised substance;
- electric shock;
- fall or release from height of any plant, substance or thing;
- collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use under the Regulations;
- collapse or partial collapse of a structure;
- collapse or failure of an excavation or of any shoring supports;
- inrush of water, mud or gas in workings, in an underground excavation or tunnel; and
- interruption of the main system of ventilation in an underground excavation or tunnel.
While the above definitions appear comprehensive, it can be difficult at times for organisations to determine whether a particular incident falls into one of those categories. For example, if a worker suffers a serious strain or sprain to their foot after colliding with a forklift and is treated at hospital on the same day in an emergency department, does this require notification? The standard reaction of most organisations would be “yes as hospital treatment was involved”, but it is possible to be treated in hospital as an outpatient and not an inpatient. Outpatient treatment for such an injury is not subject to the requirement to notify. Where in doubt external legal advice should be sought as soon as possible to ensure appropriate compliance with the notification requirement.
When an incident occurs, regardless of whether it is notifiable or not, an organisation should conduct an investigation (formal or informal) to determine how to rectify the situation, if at all possible, to avoid further risks to health and safety.
Internal investigations and privilege
Incident investigation is not simply a matter of nominating a person within the organisation to conduct the investigation. Rushing off and investigating a matter without taking time to plan and develop a strategy can increase exposure to liability, especially in circumstances where the incident may be one which could lead to an investigation or prosecution by a Regulator.
One of the biggest issues we see with organisations in this position is failure to consider whether privilege applies.
Legal professional privilege (now referred to as client legal privilege) provides protection for confidential communications between a lawyer and their client where these might otherwise be required to be produced in court or similar proceedings. The key to such privilege is that the dominant purpose of the communication must be for obtaining legal advice or preparing and/or conducting litigation. Speaking to your external legal advisors as soon as possible after an incident occurs and before speaking to the Regulator can assist in determining whether a formal approach covered by privilege is warranted. Importantly, care should be taken when relying on in-house counsel, as the fact that these individuals “wear two hats”, being a commercial and legal one, may result in the privilege being waived.3
A common mistake many organisations make is partially or even fully completing their investigation before speaking to their external legal advisors. An investigation report can contain findings about what the organisation has done wrong and may attribute responsibility for certain failings within the organisation, giving the Regulator a useful outline of possible breaches for its investigation and/or prosecution. As a matter of best practice we recommend taking the time to make contact with your external legal advisors before investigating or notifying the Regulator.
Regulator response: know your rights, but also know theirs
So either through notification or through other means (for example, reporting by a workers’ compensation insurer), the Regulator becomes aware of issues within your organisation. Now what?
The two main functions of the Regulator are to monitor and enforce compliance with WHS legislation and to provide advice and information on WHS to duty holders and the community generally.
The powers of WHS Inspectors are broad and far-reaching. These powers include, without limitation, the ability to:4
- inspect, examine and make inquiries at the workplace; and
- bring their own equipment, take measurements, conduct tests and make sketches or recordings (e.g. film, audio, photographs).
More specifically, upon entering a workplace Inspectors can require a person to:
- provide details on the whereabouts of a document;
- produce the document if they have access or control of it; and
- answer questions put by the Inspector.
Importantly, at least in “harmonised” jurisdictions there are provisions dealing with self-incrimination. Typically, in ordinary criminal matters an individual is not compelled to answer any questions or provide information which may tend to incriminate him or her. Such protection does not apply in WHS matters (other than in South Australia) as individuals are compelled to answer, subject to privilege. At no stage, absent a Court order, should privileged materials be shown or otherwise provided to an Inspector.
The trade-off for the loss of this right is, although a person must provide non-privileged incriminating evidence if asked, such evidence cannot be used against that person in criminal or civil proceedings (unless the evidence provided is misleading or fraudulent). “The catch?” The protection only applies where the information is provided to an Inspector when he or she is exercising their powers under legislation, and not where the information is provided voluntarily.
While cooperating with the Regulator as much as possible is the correct basis for approaching incident management, this cooperation should occur in a context where the Regulator complies with its obligations at law, including allowing legal representation and providing a statutory caution before requiring answers to be provided. This caution should refer to the provisions regarding self-incrimination and the protection afforded by client legal privilege. If the caution is not provided, or individuals are uncertain about whether it is necessary, there is no restriction on seeking a short break to obtain legal advice before embarking on answering questions or providing documents.
- Notify a notifiable incident. If in doubt, seek legal assistance from your external legal advisors.
- Speak to external legal advisors as soon as an incident occurs to determine the best approach to an investigation and privilege.
- Understand that the Regulator is never really “off the record” when conducting an investigation and avoid giving opinions or speculation – stick to the facts.
- Remember to obtain the caution and respond only to the specific question(s) asked.
- Check the applicable local laws – States and Territories do have subtle variations.
1. See for example section 35 Work Health and Safety Act 2011 (NSW).
2. For assistance see SafeWork Australia’s “Incident Notification Information Sheet” at http://www.safeworkaustralia.gov.au/sites/SWA/abou...
3. See for example Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling)  VCC 1260
4. See for example Part 9 Work Health and Safety Act 2011 (NSW).