If the worst should happen

Part 1: What to expect and what to do in the event of serious workplace injury and subsequent investigation

If an incident were to occur at your business that left one or more workers seriously injured, it could well trigger investigations by both SafeWork SA and WorkCover.

It’s important that you’re prepared for this and understand the scope of powers held by these statutory authorities, along with their limitations, as set out in the table below.

SafeWork SAWorkCover Corporation of SA
Applicable legislationWork Health and Safety Act 2012 (SA) (WH&S Act)Workers Rehabilitation and Compensation Act 1986 (SA) (WRC Act)
When they actUpon an incident occurring, to assess breaches of the safety legislation – whether the incident involves your employee or not.Even if it was not one of your employees and you had nothing to do with the incident, you may still get a call from SafeWork SA.

In fact, there doesn’t even have to be an ‘incident’ that led to injury for SafeWork SA to come knocking at your door.

A member of the public may make a complaint to SafeWork SA about alleged unsafe operations in your business and SafeWork SA will be obliged to investigate.

Upon an incident occurring to a non-employee. WorkCover seek to assess if there was a wrongdoer at fault other than the employer.If someone is injured on your premises while working, they may make a workers compensation claim against their employer – generally known as a ‘WorkCover claim’.

A worker may be entitled to compensation for a work-related injury in the form of income maintenance, reasonable hospital and medical expenses and lump-sum payments for any permanent impairment caused by the injury.

If you are not the worker’s direct employer and there is a chance you may have caused or contributed to the injury, then:

  • The worker may have a cause of action against you in negligence (what’s known as a ‘common law claim’); and/or
  • WorkCover may seek to recover from you any compensation paid or payable to the worker pursuant to section 54 of the WRC Act (what’s known as a ‘recovery claim’).

Section 54 provides that, where WorkCover is obliged to pay compensation to, or on behalf of, an injured worker, and that obligation arises from the act of a negligent third party (described in the WRC Act as a ‘wrongdoer’), WorkCover is entitled to recover compensation paid and payable in the future from that wrongdoer.

Who undertakes the investigationsSafeWork SA Inspectors are appointed by the Executive Director of the Department of Premier and Cabinet pursuant to section 156 of the WH&S Act. The Inspectors are employed by SafeWork SA.All SafeWork SA Inspectors carry an Identification Card which they ought to show you.WorkCover recovery unit. Generally WorkCover appoints independent investigators to act as their agents, known as ‘authorised officers’ under the WRC Act. Such investigators must be appropriately appointed under section 110 of the WRC Act before they carry out an investigation. They are issued with a Notice of appointment from WorkCover which they ought to show you.
When they will actSafeWork SA Inspectors generally respond quickly (between 24-48 hours) in circumstances where there has been a serious workplace incident or fatality.Less serious incidents and complaints are generally dealt with within 4 weeks.

However, SafeWork SA have 3 years in which to prosecute breaches of the WH&S Act.

It is in the Recovery Unit’s best interest to act quickly. However, as the focus is recovery of compensation payments, as opposed to any potential safety breach, it may be up to 12 months after the incident.At the latest it will be within 3 years of the incident, as WorkCover has a time limitation of 3 years to institute any recovery claim.
Scope of powersInspectors have wide ranging functions under the WH&S Act, which include:

  • Assisting in the resolution of work/safety issues at the workplace;
  • Investigating contraventions of the WH&S Act;
  • Issuing notices to comply with the WH&S Act;
  • Providing information and advice about the WH&S Act;

Exercising any compliance power or other power that is reasonably necessary to be exercised by the Inspector for the purposes of the WH&S Act.

The appointed investigator must be an ‘authorised officer’ before he/she carries out any investigations.Under section 110 of the WRC Act, an authorised officer has general  ‘powers of entry and inspection’.
Specific powersWide ranging powers to:

  • Enter any workplace;
  • Inspect, examine and make inquiries at the workplace;
  • Inspect and examine anything (including a document, records or books) at the workplace;
  • Bring to the workplace and use any equipment or materials that may be required;
  • Take measurements, conduct tests and make sketches or recordings (including photographs, films, audio, video, digital or other recordings);
  • Take and remove for analysis a sample of any substance or thing without paying for it;
  • Require a person at the workplace to give the inspector reasonable help to exercise the inspector’s above powers;
  • Require (directly or through an interpreter) any person to answer, to the best of that person’s knowledge, information and belief, any question relevant to their investigation.
Limitation to powersThe inspectors’ and authorised officers’ powers must be exercised in a reasonable manner for the purpose of the relevant Act. Their powers are specifically set out in the legislation, and if they go outside such powers they themselves are committing an offence.The best way to assess whether the inspector or officer is complying within their powers is to be clear as to the purpose of their attendance on the worksite.

SafeWork SA Inspectors may enter your workplace without prior notice.  However, they are required to take reasonable steps to notify you of the purpose of their attendance as soon as is practically possible. You generally will have notice prior to an authorised officer’s attendance and can seek to delay the same until you have sought advice.

You are not required to answer a question if the answer would tend to incriminate you of an offence or expose you to penalty.

You are also not required to provide an authorised officer with information that is legally privileged.

An authorised officer must also not unreasonably hinder or obstruct your day-to-day running of your business. Although inspectors will endeavour to do the same, as their focus is on workplace safety, such condition is not prescribed in the legislation.

Penalties/ClaimsSuch investigations should not be taken lightly. The WH&S Act provides significant penalties for safety breaches of individuals (up to $300,000 and/or 5 years imprisonment), and for individuals conducting a business or undertaking (up to $600,000 and/or 5 years imprisonment), whereas body corporates may be fined up to $3,000,000 for offences.Depending on the injury, the level of compensation paid to a worker may be significant, ranging from income maintenance payments to hospital and medical expenses, ongoing future care and lump-sum payments for permanent impairment.Claims will cover past and future payments.
  CooperationUnder both Acts:

  • You are required to provide reasonable help and assistance as is necessary for the SafeWork SA Inspectors or WorkCover authorised officers to exercise their investigation powers;
  • It is an offence to hinder or obstruct an Inspector or authorised officer in exercising their powers;
  • You cannot refuse or fail, without reasonable or lawful excuse, to comply with a requirement.
Failure to CooperateThose found guilty of hindering or obstructing or failing to cooperate with a SafeWork SA Inspector face penalties of up to $10,000 in the case of individuals and $50,000 in the case of corporations.A maximum penalty of $10,000 may apply if you hinder or obstruct or fail to cooperate with an authorised officer.
Helpful hints
  • You are entitled to (and we recommend you) seek advice from a lawyer on:
    • Any investigations by SafeWork SA or WorkCover;
    • A common law claim against you by an injured worker;
    • A recovery claim against you by WorkCover;
  • You are entitled to have a lawyer present during any interviews or site attendances by an investigator;
  • You are entitled to request production of the investigator’s appointment by SafeWork SA or WorkCover;
  • Any documents requested from you by an investigator should be directly relevant to their investigation. You should only disclose what is directly relevant and necessary;
  • Speak to a lawyer and get advice before you agree to any interviews, site inspection or provision of documents to an investigator;
  • If there is a workplace incident, or circumstances arise which may result in an investigation by SafeWork SA or WorkCover, notify your insurance broker and/or insurer of those circumstances. Safety prosecutions are generally not covered under business liability insurance policies, but an investigation or recovery claim by WorkCover may be. Some directors and officers (D&O) or management liability policies may cover some prosecutions.

 

Part 2 coming soon

Keep and eye out for the second part of this article, which we’ll be publishing very soon.

In the meantime, if SafeWork SA or WorkCover should come knocking on your door, or you anticipate they might, feel free to give us a call here at DW Fox Tucker. We’d be delighted to help you to put your best foot forward.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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