The Supreme Court of NSW has confirmed in a recent decision that, following an incident at a workplace, an inspector appointed by WorkCover NSW or other regulatory authority is empowered to exercise significant investigative powers without giving prior written notice.1
Under the Work Health and Safety Act 2012 (NSW) (the Act), a regulator (usually WorkCover NSW) has the power to require a person, by prior written notice, to give the regulator information (either in writing or in person) if it has reasonable grounds to believe that a possible contravention of the Act has occurred (section 155).
The Act also confers similar powers on an inspector appointed by a regulator (section 171).
The key differences are that an authorised inspector is empowered to:
- exercise certain powers upon entering a workplace following a workplace incident;
- exercise his or her powers without reasonable grounds to believe that a possible contravention of the Act has occurred, prior to exercising those powers; and
- the inspector does not need to give written notice prior to exercising its powers.
The conventional interpretation of these sections is that section 155 deals with the power to obtain information, documents or evidence if the regulator reasonably believes a person has contravened the Act or for compliance purposes generally.
Section 171 allows an inspector to enter a workplace immediately following a workplace incident and exercise powers for the purpose of conducting a swift and effective investigation.
The incident at Hunter Quarries’ workplace
Hunter Quarries operated a quarry at Karuah, north of Newcastle, which specialised in producing blue metal rock for use in concrete. One of Hunter Quarries’ employees died at the quarry while he was working on 9 September 2014.
Hunter Quarries notified the NSW Department of Trade & Investment (the Department) as required under the Act. The Department sent an inspector to the quarry to investigate the incident. Upon arrival, the inspector sought to exercise his powers and gather information under section 171 of the Act.
Hunter Quarries disputed that the inspector could exercise such powers and sought urgent orders from the Supreme Court of NSW preventing the inspector from obtaining information through the exercise of his powers under section 171 of the Act.
Arguments advanced by the parties
Hunter Quarries submitted that the powers granted to inspectors under section 171 of the Act are of a specific and limited kind. Accordingly, those powers did not extend to the investigation of possible breaches of the Act or to investigations to determine whether an incident amounted to an offence under the Act. Instead, section 171 only applied to inspectors exercising powers for the purpose of securing compliance with the Act.
In response, the Department submitted that the powers conferred under section 171 could be applied to both securing compliance with the Act and in conducting investigations into possible breaches of the Act.
The Court’s decision
Justice Schmidt rejected Hunter Quarries interpretation of the Act and found that the inspector who attended the Karuah quarry was entitled to exercise the powers outlined in section 171.
Justice Schmidt also discussed at length how Hunter Quarries’ interpretation of the Act would impede its effective operation. If Hunter Quarries was correct, Her Honour held that inspectors would not be able to carry out swift and thorough investigations following an incident.
Bottom line for employers
Inspectors are not required to give written notice prior to entering a workplace nor when making a subsequent request under section 171 of the Act. If a person refuses or fails to comply with one of these requests without a reasonable excuse, they may be liable for a penalty of up to $10,000 if they are an individual or $50,000 if they are a body corporate.
With the exception of places used exclusively for residential purposes (unless a search warrant is served), inspectors appointed under the Act may at any time enter a place that he or she reasonably believes is a workplace. The inspector does not require consent from whoever has management or control of the place and he or she is not required to give prior notice to any person.