Inspectors visit workplaces to respond to incidents and reports, assist in resolving workplace WHS issues, monitor compliance with the WHS laws in their jurisdiction and investigate breaches of these WHS laws. An inspector can also give you advice and assistance on your WHS rights and duties.
Powers to enter premises
An inspector may choose to enter a workplace for a variety of reasons, including to respond to an incident or complaint, as part of a planned campaign or to assist with the resolution of WHS issues.
Under the model WHS laws, an inspector can enter a workplace (or a place the inspector reasonably believes is a workplace) with or without the consent of the person who has management or control of the workplace and without prior notice. An inspector also has the power to enter a place where they are authorised by a search warrant.
An inspector must take reasonable steps to notify the following people of the entry and the purpose of the entry:
- the relevant person conducting a business or undertaking (PCBU) at the workplace
- the person with management and control of the workplace, and
- any WHS representative carrying out work for the PCBU at the workplace.
However the inspector does not have to notify any person if it would defeat the purpose for which the place was entered or cause unreasonable delay.
Under the model WHS laws, inspectors can only enter residential premises if:
- the inspector reasonably suspects the residential premises is used as a workplace, or
- entry is authorised by a search warrant, or
- entry is to gain access to a suspected workplace. However, the inspector must reasonably believe there is no alternative access available, and entry must be at a reasonable time, having regard to when any work is being carried out at the suspected workplace.
Inspectors must leave residential premises if one of the above criteria is not meet.
What happens when an inspector is on site?
Under the model WHS laws, when an inspector attends a workplace their powers include to:
- seize evidence of an offence against the WHS Act
- seize dangerous workplaces, parts of workplaces, plant, substances or structures
- inspect, examine and make inquiries
- take measurements, conduct tests and make sketches or recordings (including photos, video and audio recordings)
- take samples for analysis without having to pay for it
- exercise any compliance power or other power
- take affidavits, and
- require a person to provide their name and address in certain circumstances.’
When entering a workplace, an inspector may be accompanied by an assistant, such as an interpreter or technical expert. An assistant can do anything reasonably required to assist the inspector, however cannot do anything an inspector does not have the power to do (unless permitted under a search warrant).
Inspectors also have specific powers to require the production of documents and answers to questions. For more information see What powers do regulators and inspectors have to gather information?.
An inspector who enters a workplace may seize anything as evidence, including the workplace or part of the workplace, plant, substances or structures. Documents may also be seized. An inspector may also seize a thing to prevent it from being hidden, lost destroyed or used to continue or repeat the offence.
When an inspector seizes evidence the inspector:
- Must give a receipt for the seized thing (unless it would be impracticable or unreasonable given the thing’s nature, condition and value).
- May take the seized thing away from the workplace or leave it at the workplace but restrict access to it. For example, sealing an entrance to a room where the seized thing is located.
- May dismantle seized plant or structures.
- May issue a written notice requiring that a person who has control of a seized thing move the thing or remain in control of it for a reasonable time.
It is an offence for a person to tamper or attempt to tamper with something that has been seized, or a thing that restricts access to something that has been seized, without the inspector’s approval. It is also an offence to fail to comply with an inspector’s written notice about the seized thing.
Forfeit or return of seized goods
A seized thing will be forfeited in certain circumstances, such as where it is necessary to forfeit the thing to prevent it being used to commit an offence.
If six months have passed since a thing was seized and it has not been forfeited, the person from whom the thing was seized or the owner may apply to have the thing returned. The regulator must return the thing unless there are reasonable grounds to refuse returning it. The regulator can impose conditions on the return of the thing.
What to do when an inspector is at your workplace
All people, whether they are a WHS duty holder, employer or worker, are encouraged to be courteous and cooperate with inspectors.
An inspector may require a person at the workplace to give them reasonable help. Under the model WHS Act, it is an offence for a person to refuse or fail to give this help without a reasonable excuse. It is also an offence to provide false or misleading information to an inspector, to hinder or obstruct an inspector, or to assault, threaten or intimidate an inspector or a person assisting an inspector. Doing so may lead to a full investigation, and can result in a fine or prosecution.
Review of decisions
Some decisions made by a regulator or inspector are reviewable. You should contact your local WHS regulator if you wish for a decision to be reviewed.
SWA is not a regulator and cannot advise you further about compliance and enforcement. If you need help, please contact your state or territory work health and safety regulator.