NSW Department of Education and Communities

Yes, under the Act, an inspector may enter any premises the inspector has reason to believe is a place of work. An inspector from WorkCover has no power to enter a domestic premises unless it becomes a place of work as a result of some building construction etc.

The inspector may:

• enter premises without notice at any reasonable time
• may ask to interview certain members of staff - may request certain people (could be union delegate) attend a 'fact finding' meeting
• may request copies of minutes of meetings or incident and investigation reports
• search, inspect, examine, test, and remove samples from the workplace, photograph and record relevant evidence
• may issue an investigation notice, an improvement notice, or a prohibition notice.

Failure to comply with the conditions of these notices have resulted fines in the past and may result in prosecution.

Source: Occupational Health and Safety Act 2000, No. 40 Part 5, Division 2, 50-53, 59, 91-94.

If workplace managers feel that there is insufficient time for compliance given in the notice, the inspector should be contacted and an extension of time sought. Extensions are usually granted. If an extension is not sought and the time in the notice is not complied with, the Department or TAFE NSW may be liable to a fine for failure to comply with the notice.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

A person issued with an Improvement Notice or a Prohibition Notice may apply in writing to WorkCover for a review of the notice if it is believed the notice is incorrect or unreasonable. This application must be made within 7 days of the notice being issued, so it is important to act quickly if there is concern about the validity of the notice. Information about the review process is provided on the back of the notice.

A person who is not satisfied with the result of a review by WorkCover may appeal against the notice to an Industrial Magistrate. The right of appeal is only available if WorkCover is first asked to review the notice within 7 days. If an appeal is contemplated, advice can be sought from Legal Services. It may also be necessary to seek the advice of relevant regional or state office staff in order to assess the prospects of an appeal.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Yes. Inspectors have powers of entry and inspection in relation to workplaces. The relevant provisions of the Legislation refer to the "occupier" of premises. In relation to schools and institutes, the "occupier" is the principal or institute manager. An inspector may enter any premises believed to be a place of work without notice, but must notify the occupier as soon as reasonably practicable after doing so unless -

• the occupier is already aware that the inspector has entered,
• it would unreasonably delay the inspector in urgent cases, or
• it would defeat the purpose for which the premises were entered.

The inspector must have identification from WorkCover and must produce that identification if asked to do so by the occupier. Unless the inspector has a search warrant, entry may only be made at a reasonable time in the daytime or when work is carried on.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Yes. A person must not -

• obstruct, hinder or impede an inspector;
• intimidate, threaten or attempt to intimidate an inspector;
• without reasonable excuse, refuse to answer a question or to comply with a requirement of an inspector duly exercising his/her powers;
• intentionally mislead or supply an inspector with false information.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

An incriminating statement is one that includes evidence that an individual is guilty of a breach of the Legislation or has committed any other criminal offence.

A person is not excused from making a statement to an inspector on the grounds that the statement may tend to incriminate him or her.

However the statement is not admissible as evidence in a WorkCover prosecution or any other criminal proceedings against the individual if the person claims, before making the statement, that it might tend to incriminate him or her. It is also not admissible unless the inspector drew the individual's attention to their right to make a claim that the statement might tend to incriminate them before the statement was made.

As a precaution where a staff member is asked to give a statement to an inspector, if the inspector asks "Do you wish to claim the privilege against self-incrimination" it is recommended that the staff member reply "Yes".

Any document produced to an inspector is admissible in evidence even though it might tend to incriminate a person.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Certain accidents and events must be notified to WorkCover. This requirement applies to accidents involving students and visitors as well as staff.

Advice on when accidents need to be notified and procedures for notification can be found in Memorandum DN/04/00040 - "Notification of Work-related Incidents under the OHS Regulation 2001 and the Workplace Injury Management and Workers Compensation Act 1998" . A sample of moderate to minor incidents that must be reported include the following:

• An injury (supported by a medical certificate) that results in the person being unfit for a continuous period of at least 7 calendar days, to carry out his or her usual activities. In the case of a student this means unfit, for a period of at least 7 calendar days, to attend school or to carry out the student's usual activities at school.
• An illness (supported by a medical certificate) related to work processes that results in the person being unfit, for a continuous period of at least 7 calendar days, to attend the person's usual place of work or to perform his or her usual duties at that place of work. (This includes visitors to schools but does not include students.)
• Damage to any plant, equipment, building or structure or other thing that impedes safe operation.
• An uncontrolled explosion or fire.
• An uncontrolled escape of gas, dangerous goods or steam.
• A spill or incident resulting in exposure or potential exposure of a person to a notifiable or prohibited carcinogenic substance.
• Exposure to bodily fluids that presents a risk of transmission of blood-borne diseases.
• The use or threatened use of a weapon that involves a risk of serious injury to, or illness of, a person.
• A robbery that involves a risk of serious injury to, or illness of, a person.
• Electric shock that involves a risk of serious injury to a person.
• Any incident that involves a risk of: - explosion or fire; - escape of gas, dangerous goods or steam; - serious injury to, or illness of, a person; or - substantial property damage.

For further incidents and a list of more serious incidents that need to be reported, please refer to the above memorandum.

If any doubt exists about the requirements, advice should be sought from the area staff support officer or regional OH&S liaison manager.

The Occupational Health and Safety Directorate can also be contacted on telephone number 9266 8949.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Common law requires that people behave in a responsible manner towards others. In various circumstances people owe a duty of care to other persons. Teachers are required to exercise this duty of care to each other, students and all other persons with whom they come into contact during the course of activities at work.

Employees have a statutory obligation to take care of others at their place of work and to cooperate with their employer.

Source: Occupational Health, Safety, & Injury Management. A Guide for the Principal or Manager. Department of Education and Training, 2000. Chapter 3.1, page 1. Chapter 3.2, page 5.

Who should provide me with relevant personal protective equipment (PPE)such as dust masks, gloves and eye protection?

The employer must provide relevant personal protective equipment - failure to do so can attract an on the spot fine. Additionally it is an offence for an employer to require staff to purchase there own PPE; refer OHS Act section 22. When a risk assessment identifies that the wearing of PPE is necessary to protect them from a hazard, the employer must supply and ensure staff and others exposed to the hazard wear their supplied PPE. There have been cases where employees have been fined for not wearing the supplied PPE.

If it is not reasonably practicable for an employer to eliminate a risk, then the risk must be controlled. If this requires personal protective equipment then the employer (DET) must provide each person who is at risk with personal protective equipment.

Source: Occupational Health and Safety Regulation 2001, Chapter 2, Clause 15.

A formal investigation is generally indicated when a Workcover inspector takes written statements from people.

If a school, institute or other departmental workplace is visited by a WorkCover inspector and statements are proposed to be taken from any staff with respect to a potential breach of the Legislation, the Legal Services Directorate should be contacted immediately. Depending on the circumstances, it may be necessary for further investigation to be undertaken on behalf of the Department while the facts relating to the issue are still fresh in the minds of the individual staff members concerned. This is important in view of the fact that a period of up to two years may pass between the time of the incident and the commencement of any WorkCover prosecution.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

An inspector may conduct an investigation -

• in response to a complaint;
• following notification of an injury or dangerous event;
• as part of a planned project;
• by virtue of a random visit;
• in response to a matter of public concern.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.

Upon entry an inspector may -

• make searches, inspections, examinations and tests, including the taking of photographs, videos and audio recordings;
• take for analysis samples of substances or things;
• require any person at the premises to answer questions and give information;
• require the occupier to provide such assistance and facilities as are reasonably necessary for the inspector to exercise his or her functions;
• require the production of and inspect records at the premises, including taking any copies;
• exercise any other functions that are reasonably necessary for the purposes of the Legislation.

An inspector can also issue notices requiring the production of documents or the giving of information and the attendance of the person concerned before the inspector for such purposes.

Source: Department of Education and Training, Legal Issues Bulletin Number 37 - 3 June 2005

For additional information go to the Department's intranet.