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What Happens When the Regulator Investigates Your Farm?
After a serious incident on your farm, an inspector from your state's WHS regulator can arrive to investigate. They can inspect the site, take photos and samples, ask for documents and interview workers. Your best approach is to cooperate, preserve the scene, answer honestly and get legal advice early.
Nobody wants to think about a serious incident on their farm. But knowing what happens next can make a hard day a little easier to manage.
In our latest Candid Conversations webinar, we spoke with Mel Swift from KISS Ag Consulting. Mel has 20 years' experience in work health and safety (WHS), quality assurance and environmental management. She's also lived on the land her whole life.
Mel has been through WHS investigations from both sides. One was as a young worker when a fatality happened on the farm where she worked. The other was as the WHS consultant inside a business.
Her examples come from SafeWork NSW, but the process is similar across Australian states and territories. Here's what she shared.
Why a WHS inspector might visit your farm
Most investigations start after a serious incident. That could be a serious injury or illness, or a dangerous incident where someone could have been hurt.
Inspectors may also visit because of:
- A complaint from a worker or someone else
- A targeted compliance campaign
- An unresolved WHS issue
- Earlier concerns about the business
Can you refuse entry to a WHS inspector?
In most cases, no. Inspectors can often enter a workplace without notice or consent. They should show official ID and explain why they're there.
Mel compared it to being pulled over for a breath test. Refusing doesn't paint a good picture. Trying to block entry also makes inspectors wonder what you're trying to hide.
It's like telling the police to go away. It doesn't work well.
You can still engage a lawyer. But Mel's advice was to cooperate from the start and bring in legal support alongside that.
What WHS inspectors can do during an investigation
Inspectors have broad powers when they investigate. They can:
- Inspect machinery, structures, systems and substances like chemicals and fuel stores
- Take photos, video, audio, measurements and samples
- Ask for documents and copies of them
- Request reasonable help from staff on site
- Interview anyone involved, including workers, managers, contractors and health and safety representatives (HSRs)
- Seize evidence where they’re authorised to
Interviews usually start with the business owner, directors or WHS officer. Then inspectors speak with the injured person and anyone nearby when it happened.
They may also talk to staff at random to check your processes really happen. They’ll often ask workers about four things:
- Inductions
- Training
- Consultation
- Competency assessments
Workers can be interviewed privately, and they can ask for a support person where permitted.
Preserve the scene after a serious incident
First aid and emergency response always come first. Once the injured person is being looked after, protect the scene as best you can.
If you’re not needed to help, take photos of the machinery and the area around it. If the person is still trapped, be mindful of their privacy. Keep them out of frame where you can, and don’t share the photos beyond the investigation.
Only keep people at the scene who can help. The injured person deserves privacy, and extra bodies get in the way.
Working out who can help isn’t always obvious. Mel shared an incident where a worker kept trying to get involved. About ten minutes in, the team realised they needed him to interpret for the injured worker, who didn’t speak much English. When emotions run high, it’s easy to miss who could be useful.
The first 24 hours after a serious incident
Mel called the first 24 hours the critical window. Here's what to focus on:
- Give first aid and call emergency services
- Preserve the scene and any evidence
- Notify your WHS regulator if it's a notifiable incident
- Tell management and your legal team, if needed
- Start gathering the records an inspector is likely to ask for
Having records ready quickly paints a far better picture than scrambling to find them.
Records WHS inspectors usually ask for
Inspectors usually ask for four things first:
- Your WHS policy
- Induction records
- Competency and training records
- Consultation records
They may then ask for:
- Risk assessments
- Safe work procedures
- Maintenance and inspection records for machinery
- Incident, hazard and corrective action registers
- Toolbox talk records
- Rosters, timesheets and contractor supervision records
- CCTV, photos, emails and other digital records
Your records don't need to be fancy. If you're just starting out, Mel says paper, spreadsheets, shared drives or even a WhatsApp group can work. What matters is that you can prove it's really happening.
If you're just starting, start small. Mel said regulators view a system in its early days far better than nothing at all. Saying you haven't had time won't help if someone gets hurt.
A piece of paper alone won't prove that. As Mel explained, inspectors will ask your workers, and the people on the ground will show what's really going on.
Safe Ag Systems helps farms capture these records in one place. [LINK]
How to answer questions in a WHS interview
The golden rule is to answer honestly and stick to the facts. Mel's advice to workers was to answer as they saw it on the day.
Do:
- Answer truthfully and factually
- Say "I don't know" if you don't know
- Ask to come back to a question if you need to
- Ask for a support person where permitted
Don't:
- Speculate or guess
- Line up your story with other workers
- Volunteer information you weren't asked for
- Answer on someone else's behalf
- Interrupt or obstruct a worker's account
Don't say what you think the inspector wants to hear. Your inductions and safe work procedures will trip up a made-up story.
Don't hinder, obstruct, threaten, intimidate or mislead an inspector. Don't hide people, machinery, places or substances either.
As Mel put it, inspectors have been around and seen a lot. They'll put the puzzle together themselves.
Mel also flagged a risk for workers who speak English as a second language. They sometimes answer "yes" to questions they haven't fully understood. Make sure questions are clear, and arrange an interpreter if needed.
Know your rights during an investigation
You have rights too. They work best when you use them calmly and respectfully. You can:
- Ask for the inspector's ID and the purpose of their visit
- Keep a factual log of the inspection and conversations
- Ask for reasonable time to find documents that aren't on hand
- Ask about deadlines and the reasons behind notices or requests
- Seek legal advice and claim genuine legal professional privilege
- Ask about your review rights where they apply
Mel's tip is to choose a lawyer who works in WHS. A general lawyer may not serve you well here.
Improvement notices and prohibition notices
An improvement notice tells you to fix a WHS breach by a set date. A prohibition notice stops work until a serious risk is dealt with.
Improvement notices
Many improvement notices cover admin, like updating a WHS policy or writing safe work procedures. When you get one:
- Confirm exactly what needs fixing
- Schedule the due date for everyone involved
- Assign someone to own it
- Document your response and lodge it on time
If you can't meet the deadline, ask for an extension early. Asking on the due date won't go down well. Fines for not complying can be significant for any farm business.
Prohibition notices
After a serious injury or fatality, the regulator may shut down your site until its investigation is complete. Work with them to regain access as soon as you can.
Outcomes overall can range from no further action or informal advice through to prosecution.
Get legal advice early after a serious incident
If someone has been seriously hurt, Mel recommends getting legal advice early. Think entanglement, entrapment or an incident where CPR was needed.
You may face both an investigation and a civil claim. Industrial manslaughter laws have also raised the stakes in recent years.
Knowing where you stand early gives you time to act. It's far better to be on the front foot than the back foot.
Look after your team
After an incident, your team will want to know their colleague is okay. Many will also wonder whether they're in trouble or whether their job is safe.
Share what you can, and check in with the people who were there. But protect the injured person's privacy. Not everyone needs to know everything.
Remember the people managing the incident too. Mel said it's confronting for owners, managers and WHS officers, with plenty of "what ifs" running through your head.
FAQs
Can I ask an inspector to do a site induction?
You can sign them in and walk them through site hazards, like any visitor. Mel says this shows your processes work. You can't use it to stop or delay their entry.
Who's responsible if a contractor is hurt on my farm?
Responsibility is shared. Both you and the contractor are a person conducting a business or undertaking (PCBU). The contractor is responsible for their machine and their work, but it's your site. Check that contractors are licensed and insured for the job.
Do I need to report a near miss?
Some dangerous incidents are notifiable even if no one is hurt. Check your state regulator's list of notifiable incidents. If you're unsure, report it. It's better to over-report than under-report.
How do I manage hazards on a large property?
The WHS law asks you to manage risks "so far as is reasonably practicable". Bunting might suit a small yard with forklifts, but not a property covering thousands of acres. A group message or digital system to share hazards may be more practical.
Topics: Candid Conversations
Disclaimer: Content on this website may be of relevance to users outside of Australia, but content links and examples are specific to Australia. Please check with your local authority for your country and industry requirements.
