Recommendation 14

That whenever feasible, WorkSafe should reduce its reliance on reports by consultants engaged by employers it is investigating and should utilise its statutory powers to conduct its own tests where relevant.

Government commitment:

Where feasible, WorkSafe should minimise its reliance on reports by consultants engaged by employers it is investigating and should use its statutory powers to conduct its own tests where relevant.

Lead agency

Status WorkSafe

Complete

The inquiry heard that, despite identifying issues that could lead to CFA's prosecution under the Occupational Health and Safety Act, WorkSafe considered itself unable to prosecute CFA due to deficiencies in the reliability and admissibility of evidence, specifically regarding testing undertaken by consultants engaged by CFA. The inquiry therefore recommended that WorkSafe seek to minimise its reliance upon evidence procured by employers it is investigating. The government response supported this recommendation in principle. The OHS Act, Occupational Health and Safety Regulations 2017 and Compliance Codes set out the obligations of employers and workers to ensure that safety is maintained at work. WorkSafe ensures compliance with these obligations by conducting both inspections and investigations.

Inspections involve a WorkSafe inspector entering an employer's premises to assess compliance with health and safety laws. If an inspector finds serious health and safety breaches at a workplace, these may be referred for further investigation and the employer may be prosecuted.

Investigations are conducted to determine whether to prosecute or not (or take alternative enforcement action) against an alleged offender. Although the government commitment refers to 'investigating', WorkSafe considers that the commitment is best addressed through its inspection function. WorkSafe advised that investigations may still choose to consider employers' and consultants' reports as part of the wide range of evidence collected following an inspection. To address this commitment, WorkSafe has implemented changes to operational procedures relating to inspections to, where feasible, minimise inspectors' reliance on reports by consultants engaged by employers. WorkSafe has updated its 'Attending a workplace' and 'Establishing a contravention' guidance documents to include new guidelines for circumstances where inspectors are provided with reports commissioned by an employer.

The updated guidance sets out that, where an inspector has queries or questions regarding a report's accuracy or validity, they should seek advice from the relevant WorkSafe specialist unit to independently assess any information in the report.

For example, an inspector may seek advice from a specialist unit when: a report contains technical information that the inspector does not understand

the inspector would like to confirm the expert qualifications of the consultant or consultants who prepared the report. Assessment by the specialist unit may involve further testing to ensure that results in the report are accurate.