Part 9 of the OHS Act covers WorkSafe Inspectors and Enforcement.
WorkSafe inspectors have a crucial role in both enforcement of OHS legislation in workplaces, in assisting to resolve health and safety issues and in providing advice. Inspectors can enter workplaces under a number of conditions - including as part of campaigns, in response to requests, or when required to under the Act (eg dispute regarding PINs or cease works).
Division 1 - sets out the appointment of inspectors by the Victorian WorkCover Authority and the issue of Identity cards which identify the person as an inspector under the OHS Act, the Dangerous Goods Act and the Equipment (Public Safety) Act.
Division 2 - states that inspectors are subject to the Authority's directions in the performance of their functions or exercise of their duties
Division 3 - Powers relating to entry
S98: An inspector can enter any place during working hours or at any time if he/she reasonably believes there is an immediate risk to health or safety.
S99: General powers of inspectors on entry at a workplace are to:
- inspect, examine and make enquiries
- inspect and examine any thing (including a document)
- bring in any equipment or materials that may be required
- seize any thing (including a document) that may be evidence of an offence under the OHS Act or regulations
- seize any thing for further examination or testing (but only if the inspector reasonably believes that the examination or testing is reasonably necessary and cannot be reasonably conducted on site)
- take photographs or measurements or make sketches or recordings
- exercise any other power conferred on the inspector by Act or the regulations (for example, issue a Notice)
- do any other thing that is reasonably necessary for the purpose of the inspector performing his or her functions or exercising his or her powers under the Act or the regulations
s100: Power to require production of documents, etc:
An inspector can require documents to be produced, to examine the documents, to require a person to answer questions. A person cannot without reasonable excuse, refuse to comply. However, the inspector must also 'inform the person that he or she may refuse or fail to answer any question if answering the question would tend to incriminate him or her.'
s101: Power to take samples (similar to power to ask for documents)
Division 4 - Procedure relating to entry
s102: Announcement on entry
Immediately upon entering a workplace, an inspector must take all reasonable steps to notify, and show the identity card to, the occupier of the workplace and, if members of any DWG are affected in any way by the entry, the health and safety rep(s) for those DWGs. However, the inspector is not required to notify if doing so would defeat the purpose of the entry or cause unreasonable delay.
s103: Report to be given about entry
Under the Act, the inspector is required to give a written report when or as soon as practicable after leaving the workplace, to the occupier and to the HSRs (if any). The report must cover a number of items, including time and date, purpose, summary and so on.
Division 5 - Search warrants
s104 - 106 This division outlines the powers of inspectors to apply to a magistrate for a search warrant, in what circumstances, and the requirements associated with such warrants, a copy of which must be provided to the occupier.
Division 6 - Limitation on entry powers
s107: specifies that the powers of an inspector to enter a place do not apply to any part of a place that is used only for residential purposes unless with the consent of the occupier OR under the authority conferred by a search warrant.
Division 7 - Return and forfeiture of seized things
s108 - 109: These sections set out the requirements with regard to an inspector seizing anything, including documents, these being returned or kept, and conditions under which seized things may be forfeited.
Division 8 - Powers to issue notices
s110: Power to issue a non-disturbance notice.
A non-disturbance notice is self-explanatory, and requires the occupier to stop the use or interference with any specified plant, substance or thing. Such a notice can be for a maximum of 7 days (but an inspector may issue subsequent notices). The purpose of such a notice is to ensure that the circumstances of an incident can be investigated, and that things are not 'cleaned up'.
s111: Power to issue improvement notice
Under this section, inspectors are able to issue Improvement Notices if a person is contravening or has contravened a section of the Act or Regulations, and which require the person to remedy the contravention by a specified date. Improvement Notices must state the basis of the belief, and can include directions concerning measures to be taken. An Improvement Notice is very similar to a PIN as issued by an HSR.
s112: Power to issue prohibition notice
An inspector may issue a Prohibition Notice if there there is a reasonable belief that an activity or thing involves an immediate risk to the health and safety of a person which prohibits that activity taking place. The Prohibition Notice must state the basis for the belief and may include directions on measures to be taken. Prohibition Notices are similar to HSR Cease Works.
In all cases, a person to whom a notice has been issued can seek a review of that notice. Notices must be complied with.
s113: Directions or conditions in notices - which are included in notices can refer to a compliance code and offer a choice to the person.
s114: Variation or cancellation of notices
Only the Authority can vary or cancel a notice issued by an inspector.
s115: Service of notices
This section sets out how inspectors can issue notices, and is very similar to how HSRs are able to issue PINs - that is by delivering personally, leaving at the workplace, and so on.
s116: Formal irregularities or defects in notices
As is the case with PINs, notices are not necessarily invalid if there are defects or irregularities, so long as these do not or are not likely to cause substantial injustice.
s117: Any proceedings for an offence against the Act or Regs are not affected by the issue, variation or cancellation of any inspector notices.
s118: Injunctions for non-compliance with notices
The Authority may apply to the Supreme Court for an injunction compelling someone to comply with a notice or restraining them from contravening a notice.
Division 9 - Other powers
s119: Power to require name and address
Outlines the conditions under which an inspector may require that someone provide their name and address. Providing such information cannot incriminate a person, and so this information must be provided if requested.
s120: Power to give direction
An inspector has the right to give a direction (either orally or in writing) to a person at a workplace if he/she has a belief that it is necessary because of an immediate risk to health or safety. This direction must not reasonably refused. This is a specific power and has a specific penalty.
Division 10 - Other matters
Sections 121 - 124 cover:
- the requirement for occupiers, employers and employees to assist an inspector when requested
- the right of an inspector to seek the assistance of any person, who must then be allowed access to the workplace
- the power of inspectors to take affidavits
- the power of inspectors to copy documents
Division 11 - Offences
s125: Offences in relation to inspections
This section makes it an offence to intentionally hinder or obstruct an inspector; intentionally conceal anything from an inspector; or intentionally prevent or attempt to prevent someone else assisting an inspector. A person cannot assault or intimidate or threaten an inspector or person assisting an inspector - with the possible penalty not only of fines, but also prison terms.
s126: Offence to impersonate an inspector - this is self-explanatory.
- How inspectors deal with specific issues: A guide for workplaces. This document provides information about how WorkSafe OHS inspectors deal with specific issues when performing their functions, including attending the workplace to deal with issue resolution, investigating disputed or non-compliance with PINs, Work Cessations, updated in 2016. It is a very useful document.
- WorkSafe Victoria Inspectors - How Inspectors support and enforce health and safety at work. [pdf] Revised April 2012
Last amended September 2018