When WorkSafe calls

With ever increasing penalties and powers, many employers fear a visit from WorkSafe. What you must do?

What you should do? Rob Jackson is a Partner at Rigby Cooke Lawyers and he spells out where WorkSafe steps in.

An Inspector visits if there has been a safety incident resulting in an injury or fatality. Or an Inspector may visit in the case of a ‘near miss’, where nobody has actually been injured.

The Inspector is at the centre of enforcing the Occupational Health and Safety Act 2005 (OHS Act), and also the Dangerous Goods Act 1985 and Equipment (Public Safety) Act 1994.

This article focuses on an Inspector’s powers under Part 9 of the OHS Act. This article therefore only applies only to Victoria. The offences, powers, rights and penalties that apply in the rest of Australian under the Work Health and Safety Act in each State and Territory are different to the OHS Act in Victoria.

Power of entry

An Inspector has power of entry to visit a workplace: ‘…. at any time during working hours’. If a business is closed, an Inspector cannot enter premises, unless an Inspector reasonably believes an immediate risk to a person’s health or safety exists.

An Inspector must take all reasonable steps to notify their arrival to the occupier, members of a designated work group and any health and safety representative (HSR).

Who must co-operate

An Inspector must produce their identity card, and warn a person a refusal to comply without reasonable excuse is an offence. The category of ‘persons’ who must co-operate include an:

• occupier or apparent occupier;

• employer with the management and control of a workplace; or

• employee at a workplace.

A person must provide their name and address, and answer an Inspector’s questions, unless an answer might incriminate the person giving answers.

An Inspector can demand any documents by issuing a notice under section 100 OHS Act. If the request includes any incriminating documents, for example, where a business has conducted its own internal investigation, revealing safety flaws, it must be provided!

Powers in the workplace

In the workplace, the Inspector has six specific powers:

1. inspect, examine and make enquiries;

2. inspect and examine anything;

3. bring any equipment or materials to the workplace as required;

4. seize anything including a document as evidence;

5. seize anything for further examination or take a sample; and

6. take photographs, measurements, sketches or recordings.

An Inspector can still exercise any other OHS Act powers.

Entry Report

After their visit, an Inspector must provide an entry report to the occupier, members of a designated work group work, and any HSR. The entry report must detail time of entry and departure, purpose of entry, description of things done, summary of observations, and the Inspector’s contact details.

An Inspector may also issue a non-disturbance notice, an improvement notice or a prohibition notice. There is a limited timeframe to challenge any of these notices.

After the initial visit, the Inspector may visit again as needed, while WorkSafe consider whether to commence a prosecution against a company, a director, or less commonly, an employee. For almost all offences, WorkSafe has a two year time limit to prosecute under the OHS Act. The exception is workplace manslaughter, where WorkSafe has no limitation period.

What should your business do?

How would your business react if WorkSafe visited your premises following a serious incident?

Can you answer the following questions?

1. Who calls an ambulance or doctor?

2. Who contacts the family of an injured worker?

3. Who arranges for professional counselling of fellow workers who have witnessed a traumatic incident?

4. Who ensures HSRs are involved?

5. Who notifies WorkSafe?

6. Who is nominated to speak to the media?

7. Who is the company contact person to assist a WorkSafe inspector?

You may have one person such as a safety manager, who performs all of these tasks. Or, these tasks might be allocated to different company employees, as part of an advance plan on managing a workplace incident.

The worst approach is to have no plan!

We have seen scenarios where the deceased’s family is never spoken to, or a casual employee is asked for, and gives, media comment, or WorkSafe is never informed of a serious incident. When shock and panic take control, it is too late to calmly each of these critical matters on the spot.

Legal advice can play an important part. For example,

• whether a workplace investigation can be conducted under legal professional privilege to obtain confidential legal advice about a possible OHS Act breach. The legal advice and any technical report is exempt from the obligation to provide documents under a section 100 notice;

• whether a director or employee is at risk of self-incrimination, if they answer all questions put by an Inspector. A director, or manager are usually at greater risk of a prosecution. If entitled to exercise a right to silence, then this right operates as a lawful reason not to answer an Inspector’s questions.

What’s your plan when WorkSafe calls?

Rob Jackson Partner, Rigby Cooke Lawyers rigbycooke.com.au

Robotic innovations and IP protection

As the field of robotics continues to grow and develop, intellectual property (IP) protection will become increasingly important. Mark Metzeling, Principal Lawyer – Intellectual Property, Macpherson Kelley, talks about the challenges and opportunities.

Robotics involve a combination of hardware, software, and complex algorithms, all of which can be subject to various forms of IP protection. In the context of robotics, patents protect inventions and give their owners exclusive rights to make, use, and sell the invention for up to 20 years in Australia. Patents can be used to protect novel hardware designs, such as sensors, actuators, and manipulators, as well as novel software algorithms, such as path planning and machine learning algorithms.

Patenting robotics technology can be a complex and timeconsuming process, but it can also be very valuable. For example, a company that has developed a new type of robotic arm that is faster and more precise than existing arms could potentially patent the idea underlying the unique invention, preventing competitors from copying it. This can enable lucrative licensing opportunities for the patent owner for up to the next 20 years in all countries in which the patent is granted.

Trade secrets

A trade secret is information that gives a company a competitive advantage, and which is kept secret by the company. In the context of robotics, trade secrets can include proprietary software algorithms, manufacturing processes, or unique designs for components.

Unlike patents, trade secrets do not need to be publicly disclosed, and there is no set period of time for how long they can be protected. However, valuable trade secrets can be difficult to protect, let alone kept secret, as there are usually several competitors attempting to uncover them. It is therefore unsurprising that companies that successfully maintain trade secrets (e.g. Coca Cola) have several practical protection measures in place to preserve these secrets, such as implementing access controls, non-disclosure agreements, confidentiality agreements, technology protection measures, encryption and many more.

Copyright

Copyright protects original creative works, such as books, music, and art. In the context of robotics, copyright is a powerful tool for protecting the source code of software programs that control robots. This means that others cannot copy the code for their own use (or for sale to a third party for its use), without permission from the copyright owner.

Another advantageous aspect of copyright protection is that it is instantaneous upon the work being published (i.e. put in the public domain), and is free to obtain. However, it should be noted that to be successful in a copyright infringement action, you need to be able to demonstrate that the source code is substantially identical and that it was copied from your source code, but a trusted advisor can typically provide an easy solution for this.

Trade marks

Trade marks are used to protect signs that indicate the source/ origin of a good or service. This can include brand names, logos, smells, colours, shapes, noises, and slogans. In the context of robotics, trade marks are used to protect the name and logo of a robot or robotic system, and potentially also the shape of the robot (if it is distinctive and unique).

For example, Boston Dynamics, a well-known robotics company, has a registered trade mark for the name and logo of their robot dog, Spot. This means that other companies cannot use the name or logo of Spot without permission from Boston Dynamics. A monopoly over the use of a trade mark can be protected indefinitely provided it is consistently used and properly renewed.

Designs

Designs in robotics are used to protect the appearance of a robot or the shape of a component part, where the appearance of the robot, or component part, is both, new and distinctive – and has commercial value. Designs can be extremely useful in robotics where the idea underlying the invention is unable to obtain patent protection eg. the shape of a robot’s hand may be changed to fulfil a certain purpose or to look a certain way that is artistically beautiful. Securing protection as a registered and certified design can provide a monopoly of up to 10 years for the exploitation of the design.

Why is IP protection important for robotics?

There are several reasons. First, robotics is a highly competitive field, and companies invest significant resources in developing new and innovative technology. IP protection can help ensure that these investments are not wasted and that companies can recoup their costs through the sale of products or licensing agreements.

Second, IP protection can help encourage innovation by giving inventors and companies the incentive to invest in research and development. Without the possibility of IP protection, companies may be less likely to invest in developing new technology because they would not have a way to protect it from competitors.

Third, IP protection can help protect consumers from unsafe or ineffective products. If a company can protect its IP, it can ensure that only high-quality products that meet its standards are sold under its name.

Challenges of IP protection for robotics

While there are several challenges associated with protecting IP in this field, one of the biggest is that robotics technology often involves a combination of hardware, software, and algorithms, which can make it difficult to determine which type of IP protection to use.

For the best course of action, connecting with an IP expert can ensure that your product is protected to the fullest extent.