Inspectors and enforcement

Inspectors

Appointment of inspectors (section 95)

WorkSafe can appoint any of its officers or employees to be an inspector.

When using their powers, inspectors are subject to WorkSafe’s directions.

Powers on entry (sections 98-99, 102 & 107)

Inspectors may enter any place:

• during working hours that they reasonably believe to be a workplace, and
• at any time if they think there may be an immediate risk to health or safety.

However, an inspector must not enter any part of a place that is used as residential premises unless the occupier agrees or the inspector has a search warrant.

When they enter a place, an inspector can:

• make enquiries
• inspect and examine the workplace and any thing in the workplace, including documents
• bring with them any equipment or materials they may need
• seize any thing that may show evidence of an offence under the OHS Act or regulations
• seize any thing that needs to be taken away for further enquiries, including tests (if the inspector reasonably believe the tests are needed and cannot be done there)
• take photographs, measurements, sketches or recordings
• use any powers they have under the OHS Act or regulations
• do anything that is reasonably necessary to perform their function or use their powers.

As soon as an inspector enters a place, they must:

• take all reasonable steps to advise the occupier or apparent occupier of their entry, and
• show their photo-identification card to the occupier and to any HSR who may be affected by the visit.

However, the inspector does not have to do this if:

• it would defeat the purpose of their visit
• it causes unreasonable delay
• either the occupier or HSR had already been given notice of the visit.

Search warrants (sections 104–106)

An inspector may ask a magistrate to give them a warrant to search a place. The inspector can do this if they reasonably believe:

• there is evidence of an offence against the OHS Act or regulations
• there may be evidence of an offence against the OHS Act or regulations within the next 72 hours.

A search warrant may allow an inspector, and any assistants the inspector considers necessary, to enter the place to search for the thing described in the warrant that may show evidence of an offence against the OHS Act or regulations.

Before executing a search warrant, an inspector, or an assistant to the inspector, must announce that they are authorised to enter and give any person at the place a chance to allow entry. The inspector does not need to wait to be allowed entry if they reasonably believe that immediate entry is needed to ensure:

• the safety of any person
• that the effective execution of the search warrant is not put at risk.

If the occupier or apparent occupier is there, the inspector must show their photo identification and give the occupier a copy of the warrant.

Require documents and ask questions (sections 100 & 123-124)

An inspector may require a person to:

• give them documents
• allow the inspector to examine documents
• answer questions asked by the inspector.

The person must comply, unless they have a reasonable excuse. A natural person does not have to answer questions if the answers may incriminate them.

Inspectors can:

• take affidavits for any purpose relating to performing their functions and using their powers under the OHS Act or regulations
• make copies of documents
• take extracts from documents.

It is an offence not to comply with these sections and penalties apply.

Require name and address (section 119)

An inspector can ask for a person’s name and address if:

• they reasonably believe the person can help their investigation into an indictable offence under the OHS Act
• the person has committed an offence under the OHS Act or regulations
• the person is about to commit an offence under the OHS Act or regulations.

The inspector must inform the person why they believe that person can help their investigation. They must give the person enough information so that they can understand the nature of the offence or suspected offence. The person must give their real name and address.

Assistance to inspectors (sections 121-122)

To help them do their job, inspectors can ask an occupier, apparent occupier, employer or employee at the workplace to help them. These people must help an inspector, unless they have a reasonable excuse for not helping them.

Inspectors may also bring people to a workplace to help them exercise their powers under the OHS Act. An employer or occupier must not refuse those people entry.

It is an offence not to comply with these sections and penalties apply.

Taking samples (section 101)

An inspector may take samples away to be analysed. Before taking the sample, the inspector must notify the occupier or apparent occupier at the workplace. An inspector must also notify the relevant HSR if members of the DWG are affected by taking the sample. If it is safe to do so, the inspector must give a part of the sample to the occupier or apparent occupier and to the HSR. If it is safe to do so, the inspector must keep one part of the sample for further comparison.

Issuing directions (section 120)

If an inspector reasonably believes there is a serious risk to a person’s health or safety from exposure to a hazard, they can issue a direction to anyone at the workplace. The exposure to the hazard must be immediate or imminent. The person must comply with these directions, unless they have a reasonable excuse.

It is an offence not to comply with this section and penalties apply.

Inspection report – report to be given about entry (section 103)

After each visit to a workplace, an inspector must write a report of their findings (commonly called an inspection report) and give it to the occupier or apparent occupier and relevant HSRs. This can be done via email. The report must include:

• the reason for entering
• the time of entry and departure
• what they did during the visit
• a summary of what they saw
• the procedures for getting more details from WorkSafe
• how to ask for the inspector’s decision to be reviewed, and
• whether they took any photographs, or made sketches or drawings and where to see them.

Health and safety notices

Once an inspector has entered a place, they may issue three types of notices to help enforce compliance with the OHS Act and improve health and safety.

Non-disturbance notices (section 110)

An inspector may issue a non-disturbance notice if they believe that it is necessary to perform their functions or use their powers under the OHS Act or regulations. This notice requires the occupier or apparent occupier of a place to stop using, moving, disturbing or interfering with any named plant, substance, other thing, or the area where it is located.

The person issued with the notice must comply with it unless they have a reasonable excuse not to.

A non-disturbance notice stays in force for up to 7 days, but the inspector may issue further notices for the same issue.

It is an offence not to comply with this section and penalties apply.

Improvement notices (section 111)

An inspector can issue an improvement notice if they reasonably believe:

• someone has contravened the OHS Act or regulations, or
• a contravention may continue or be repeated.

The notice must identify:

• the provisions of the OHS Act or regulations that have been, or may be, contravened
• the inspector’s reasons for issuing the notice
• the deadline for the contravention to be fixed
• the penalty for contravening the improvement notice
• how the person can seek a review of the improvement notice, and
• a statement that issuing, varying or cancelling an improvement notice does not affect legal proceedings for offences under the OHS Act or regulations.

An improvement notice may also include directions about how to fix a contravention, which may include:

• a direction to stop the OHS Activities that the notice relates to if they are not fixed by the date set in the notice, until an inspector can confirm that the contravention is fixed, and
• interim conditions needed to minimise the health or safety risks of a person.

The person issued with an improvement notice must comply with it.

It is an offence not to comply with this section and penalties apply.

Prohibition notices (section 112)

An inspector may issue a prohibition notice when they believe that there is an activity happening, or may happen at a workplace that involves, or will involve, a serious risk to the health or safety of a person from exposure to a hazard. The exposure to the hazard must be immediate or imminent. The notice:

• bans the OHS Activity from continuing or from being done in a particular way
• is issued to the person who controls or seems to control the OHS Activity
• may include directions on how to fix the risk, activities or matters to which the prohibition notice relates
• stays in place until an inspector has confirmed in writing that the risk has been fixed.

The person issued with a prohibition notice must comply with it.

It is an offence not to comply with this section and penalties apply.

Inspectors can issue a non-disturbance, improvement or prohibition notice to a person by mail, fax, or personal delivery or email (unless it is to a body corporate). In some circumstances, they can leave it at the workplace, residence or business address.

Inspectors can issue a non-disturbance, improvement or prohibition notice to a body corporate by mail, fax, or personal delivery to the body corporate’s registered office or principal place of business, or by email to an employee, agent of officer of the body corporate.

Notices are not invalid just due to a minor error of form or substance, unless it would lead to significant injustice. A notice is not invalid due to an incorrect name on the notice of the person it was issued to, as long as the notice identifies the person well enough.

When an employer or contractor gets a notice, they must, as soon as possible, give a copy to each relevant HSR, display it in an obvious place and bring it to the attention of the people whose work is affected by the notice. If an employee receives a notice, they must also give a copy to their employer as soon as possible.

Once an inspector has issued a notice, only WorkSafe can vary or cancel it. The issue, varying or cancelling of a notice does not affect any legal proceedings for an offence against the OHS Act or regulations.

Injunctions for non-compliance with notices (section 118)

WorkSafe can apply to the Supreme Court for an injunction to make sure a person complies with, or does not keep disobeying, a notice. This can happen whether or not proceedings for an offence against the OHS Act or regulations have commenced.

Obstructing an inspection (section 125)

A person must not deliberately:

• obstruct an inspector
• make or attempt to make others to obstruct an inspector
• hide the location or existence of any other person or any plant, substance or other thing from an inspector
• stop or try to stop someone else from helping an inspector.

It is an offence to assault, threaten or intimidate an inspector or a person who is helping them, or to try to do so.

It is also an offence not to comply with this section and penalties apply.

Things that have been seized (sections 108–109)

WorkSafe must return a thing seized from a workplace to the workplace as soon as possible, unless:

• it is needed as evidence in legal proceedings for an offence against this Act or regulations
• returning it may lead to further offences being committed
• it cannot be returned to the owner after reasonable effort
• the owner notifies WorkSafe that they give the thing to WorkSafe
• it is forfeited to WorkSafe under section 109 of the OHS Act
• it is a copy of a document or part of a document that was made under section 124 of the OHS Act, or
• WorkSafe is otherwise allowed to keep, dispose of, or destroy it.

WorkSafe can put conditions on the return of a thing, and the owner must comply with them. It is an offence not to comply with the conditions and penalties apply.