Investigations and enforcement

How does WorkSafe decide what to investigate?

Investigations are conducted by WorkSafe's Enforcement Group. Decisions about which matters will be investigated are considered against criteria including the objective seriousness of the matter, the likelihood that a prosecution could be commenced at the conclusion of an investigation, and the availability of resources to conduct an investigation. In the case of serious injuries or fatalities, an investigation will be commenced immediately.

In some instances, the law requires that WorkSafe decide whether or not to commence a criminal prosecution. In those circumstances, WorkSafe will first conduct an investigation to assist in making a properly informed decision.

What happens in an investigation?

The types of enquiries that WorkSafe makes during an investigation depends on the nature of the alleged conduct.

For example, if an incident appears to have caused serious injury or death, WorkSafe investigators will usually start the investigation at the scene of the incident. If WorkSafe is investigating an alleged fraud against the compensation scheme, however, the investigator may focus on identifying relevant documents and records before attending a workplace.

During an investigation, WorkSafe's investigators may:

• ask people about what happened - such as witnesses, other employees and the employer – and take notes of what those people say
• consult industry experts
• collect physical evidence from the scene
• take photographs, measurements or make other records of the scene
• look at employment, training and medical records
• require people and companies to produce documents or provide information

In some circumstances, a person (but not a company) may refuse to provide information to WorkSafe if doing so might tend to incriminate the person.

WorkSafe investigations can be complex and can take many months to complete. The reasons why investigations can be lengthy varies from case to case, but is often due to technical issues about machinery or equipment and the need for industry experts to provide detailed reports, or the availability of witnesses to make statements.

As the conclusion of an investigation, WorkSafe will decide whether or not to commence a prosecution. In coming to a decision, the decision-maker will have regard to the matters set out in WorkSafe's General Prosecution Guidelines, including:

• whether the information gathered in the course of the investigation is in a form that can be put before a court as evidence of an offence
• whether there is enough evidence to support a proceeding
• whether it is in the public interest to bring a prosecution

WorkSafe cannot commence a prosecution unless the evidence is capable of establishing beyond a reasonable doubt that the person is guilty of an offence.

If a criminal prosecution commences, WorkSafe will prepare and file a charge-sheet which describes the alleged offences and the accused will be summoned to appear before a Magistrate to answer the charges.

Cautions

If WorkSafe forms a belief on reasonable grounds that a person has contravened a law administered by WorkSafe, it may decide to send a letter of caution to that person instead of commencing a criminal prosecution. WorkSafe will only do so after having regard to its Letters of Caution Policy.

The purpose of a caution is to a person that WorkSafe considers that the duty-holder has breached the law, with a view to deterring any future offending by drawing that duty-holder's attention to:

• the nature of the legal obligation and the circumstances said to give rise to a breach of the obligation
• the consequences that may arise from any future offending

A caution may be issued if it is not in the public interest to bring a prosecution.

Enforceable undertakings

In some circumstances, a person may offer to make an 'enforceable undertaking' to WorkSafe in respect of a contravention or alleged contravention of the law.

An enforceable undertaking is a written commitment by a person who has committed (or may have committed) an offence to do certain things in a set timeframe. The commitment must go beyond compliance with the duty-holders legal obligations and seek to improve health and safety generally. This may include, for example, funding awareness raising programs, giving donations and developing research partnerships with universities to improve health and safety outcomes.

The exercise of WorkSafe's discretion to accept an enforceable undertaking is guided by its Enforceable Undertakings Policy.

What is the role of Family Liaison Officers?

WorkSafe's Family Liaison Officers are a liaison point for families and injured workers during the investigation and legal process.

They can:

• provide information about the progress of the investigation and prosecution, and explain court processes
• attend court and provide support before, during and after court hearings
• connect families and injured workers with other support services

Family Liaison Officers do not provide crisis support. If you require urgent counselling, please contact Lifeline on 13 11 14.