Reporting a workplace injury: dealing with WorkCover, inspectors and interviews

Lodgment of WorkCover incident notification form

A WorkCover accident report must, in most circumstances, be lodged no later than 7 days after an incident. (Section 86 of the Occupational Health & Safety Act 2000 (NSW)). For serious incidents, like death or injury to a person resulting in amputation of a limb, WorkCover must be notified immediately and by the quickest available means (see Section 87 of the 2000 Act).

Failure to report a reportable incident is an offence. Reportable incidents include death or personal injury that results in the person being unfit for a continuous period of at least 7 days affecting both employees and non employees, work related illnesses and dangerous occurrences.

WorkCover Inspector powers

Part 5 of the Occupational Health & Safety Act 2000 (NSW) gives WorkCover inspectors wide powers to enter premises, inspect, ask questions and uplift evidence. An inspector can:

1. Enter any premises believed to be a place of work, with or without notice.

2. Use reasonable force when gaining lawful entry to the premises where written WorkCover authority is obtained.

3. Apply for a search warrant if there are reasonable grounds for believing that an OH&S breach has been, is being or is about to be made.

4. On entering the premises:

• Make searches, inspections, examinations and tests (and take photographs and make video/audio recordings).
• Take for analysis a sample of any substance or thing which may be contaminated and is a risk to health.
• If medically qualified, carry out medical examination provided there is consent.
• Carry out biological testing.
• Require any person in or about the premises to answer questions or furnish information.
• Require the occupier of the premises to provide assistance and facilities which are reasonably necessary to the inspector.
• Require the production of any inspection of documents.
• Take copies of or extracts from documents.
• Dismantle any plant or other item on the premises for examination.
• Take any plant or substance or item from the premises.
• Issue notices in writing requiring information, documents or the giving of evidence.
• Exercise all functions that are conferred by, or are reasonably necessary, for the purpose of the legislation.

Whilst these powers are broad and far reaching, the legislation does require inspectors to satisfy certain requirements before they can be utilised. This is set out in sections 47-85 of the 2000 Act.

Obligation to assist investigation

Employees or company officers may be called on to provide information, material, answer questions and attend interviews. Inspectors can require this by issuing notices. Notices must be complied with.

Section 66 of the 2000 Act makes it an offence to, without reasonable excuse, refuse or fail to comply with an inspector’s notice, requirement or to answer a question asked. It is also an offence to give or furnish false information, evidence or documents. The maximum penalties are $11,000 fine for a first offence and $16,500 fine for a subsequent offence.

The possibility that information or material provided to inspectors might incriminate the individual does not excuse compliance with the inspector’s direction to provide information, answer questions or produce documents.

However, if information or material is provided in compliance with an inspector’s direction, the evidence is not admissible in criminal proceedings against the individual if:

• a claim or objection is made prior to the provision of the information, material or answer, on the basis that the information, material or answer might tend to incriminate; or
• alternatively the individual was not warned before the information or material was provided that a claim or objection could be made to withhold the information or material on the basis of self-incrimination.

WorkCover interviews

It is common for WorkCover inspectors to issue notices requiring authorised individuals of the organisation to attend interviews, answer questions and provide signed statements/records of interview relating to the incident under investigation.

Having to comply with such directions, particularly WorkCover interviews, can be stressful and intimidating to the company representative. At times information and material is provided at these sessions in an ill-advised fashion, which exposes the organisation to criminal sanction and liability.

As a first step, the organisation should assess whether the company representative in the matter is exposed to criminal prosecution personally in relation to the incident. If so, the organisation should recommend and seriously consider providing separate legal advice and representation to the company officer who is at risk of personal prosecution. Also the individual in this situation should not be representing the organisation at the WorkCover interview as their interests may be different to what is in the best interests of the organisation.

Where the company officer can properly represent the organisation, legal advice and representation should be considered to prepare the individual for the interview. Consideration should be given to whether the lawyer attends the interview as well. It should be understood that the lawyer is representing the organisation and not the individual.

Before the interview, the role of the lawyer is to explain the process to the company officer, analyse the incident and the objective facts, anticipate what questions might be asked and how they could be answered, and advise the witness on the manner in which evidence is properly given. Pre-interview preparation is essential to minimising the potential liability of the organisation.

If the organisation elects to engage a lawyer to accompany its representative to the interview, it should be understood that the lawyer cannot interfere with the interview process by objecting to or answering questions on behalf of the witness or by suggesting answers during the interview.

However, the lawyer can speak to the witness privately (within reason), assist the interview by suggesting how questions might be asked, review the questions and answers with the witness at the endand suggest alterations, which are often allowed as an addendum to the record of interview. The benefit of having a lawyer attend is the production of better statements/records of interview, focussing on the issues and incriminating admissions can be avoided or minimised.