What to expect from a WHS investigation in Australia?
If you’ve had a safety inspector visit your property from the state regulator in order to conduct a health and safety investigation, it is generally because you’ve had a serious incident or worse, a fatality on your farm. The police may also be involved if there was a fatality. Whilst this can seem overwhelming, there is some important information you need to know and where you can seek help.
Not everything that is reported is then investigated, but if someone was seriously injured or killed, they will want to visit you. Certain dangerous occurrences will also get the state regulators attention. Keep in mind that depending on how serious the incident is, you may receive a visit from a team rather than just one investigator.
The purpose of a workplace health and safety investigation is to help establish how something has occurred. This information is then used for a range of purposes, such as identifying what has happened, what can we learn from this and what could be implemented to prevent this situation occurring again. The investigation findings also assist with gathering any evidence to issue notices and/or bring a prosecution.
What will the inspector want to see?
When you receive a visit from the inspector, they will want to see the location of the incident and take plenty of photographs. During this time, they may also take video footage of the area and request copies of your CCTV footage (if applicable). In some instances, investigators have also been known to create a sketch of the floor plan, noting where items have been placed.
Locations of an incident are to be treated similar to a crime scene, no one is to alter it until an inspector has given directions that you can. The location, however, must be made safe and you must minimize any risks of another notifiable incident occurring. You can take action to get a person out for medical treatment, remove a deceased person, or do anything associated with a police investigation or action for which the inspector gives you permission.
Who will they want to talk to?
When your workplace is investigated, you should expect a lot of questions. They will want to talk you, your workers, and their representatives (WHS/OHS Representatives, union reps if available), and anyone else on site. Generally, the line of questioning will cover:
- What was going on when the incident occurred
- How they believe the incident happened
- What could have been done to prevent it, and more
You will also be required to supply your safety documentation – policies, procedures, evidence of training and induction, maintenance records of any machinery or equipment involved, risk assessments and any other documents.
The inspector will most likely want to talk to you about your health and safety knowledge. You will also need to be able to talk about the main health and safety issues in your workplace and how you are managing risks.
What will happen to my machinery and equipment?
During the investigation, the regulator may decide to seize your machinery and equipment involved in the incident as evidence. Evidence seized can be withheld by the regulator until the case has been closed. An investigation can continue for up to 2 years, and this could result in a longer period of time if they decide to proceed with prosecution.
How long will it take?
A WHS investigation and resulting decision of penalties or charges may take some time, some cases it can take days and others it can take weeks. It is possible investigators will be back or want further information. When they have come to a decision regarding the incident, a number of things may occur. Fines can occur on the spot whilst others may be issued intermittently over the following few days, or even weeks.
Some of the options available to an inspector include one or more of the following:
Improvement Notices – a notice in writing to remedy something within a certain timeframe. These are usually issued if there’s some kind of contravention of a safety duty. Notices can be issued on the spot or sent to you in a few days. Comply with this and that should hopefully be the end of the matter.
Prohibition Notice – where the inspector believes there is an imminent or immediate exposure to a hazard that is or could be a serious risk to the health and safety of a person, they can issue a direction prohibiting the activity – which could be use of your key machinery or equipment in your busiest time. This means they can shut down what you’re doing. This kind of notice is often issued verbally then followed up in writing.
Non-disturbance notice – this means you cannot disturb the site, including the operation of plant, for a specified period. The specified period is no more than 7 days.
Prosecution – the Regulator has up to 2 years from the date of incident to finalise the investigation, at which time they can decide to prosecute you for a breach of a duty or duties in the WHS legislation.
You must comply with the requests of an inspector who is investigating a fatality or serious incident. It is worth seeking support from a reputable safety professional if you have a notifiable incident. If you have a fatality, it is also advisable to engage a legal representative who is skilled in your state’s work health and safety law as soon as possible so they can be on site when the investigators arrive.
In order to reduce the risk of prosecution, it is recommended that you implement a safety management system in your agribusiness. Having a safety management solution in place, and used correctly, will help protect you in the likelihood of an incident occurring in your workplace.
Topics: Safety Management System
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.
Originally published 26 November, 2020.