A recent prosecution by WorkSafe provides a timely reminder that individuals and businesses have obligations to assist WorkSafe inspectors carrying out their roles. So, what is your duty and what steps do you need to take to avoid enforcement action?
The Health and Safety at Work Act 2015 (HSWA) places a positive obligation on any person who has a duty under the Act to provide all reasonable assistance to enable a WorkSafe inspector to enter, inspect, examine, inquire or exercise any other power under the HSWA. This is very broad and the obligation covers everyone involved in work activities.
Failing to assist an inspector is an offence, punishable upon conviction by a fine up to $10,000 for an individual, or $50,000 for any other person (e.g. a business).
There is also a separate offence in the HSWA for anyone who hinders or obstructs an inspector in the exercise of their duties. The same penalties apply for this offence.
Sproull v WorkSafe is a recent case illustrating the costly consequences of failing to assist an inspector.
Mr Sproull was a director of three companies that operated dairy farms in the Manawatu region. In November 2018, a WorkSafe inspector contacted Mr Sproull to arrange a date to inspect one of the farms. Mr Sproull requested documentation from the inspector to confirm his authority to conduct the inspection. This was duly provided by WorkSafe.
When two inspectors visited Mr Sproull’s farm on 4 December 2018, Mr Sproull refused to let them onto the property without a search warrant. He then sought further confirmation of the inspectors’ appointment, and demanded confirmation of the instructions that had been given to the inspectors, signed by WorkSafe’s Chief Executive.
After providing a number of documents to Mr Sproull, including the certificates of appointment for the two inspectors, WorkSafe advised Mr Sproull that inspectors would attend his property on 2 May 2019 to complete the inspection. However, when the inspectors arrived at the property, neither Mr Sproull nor any workers were present to allow them access.
Another failed inspection occurred several weeks later on 24 May 2019.
With patience seemingly wearing thin, WorkSafe wrote to Mr Sproull and required him to attend its offices in Palmerston North on 17 June 2019 for the purpose of providing a statement. Mr Sproull did not attend.
As a result of Mr Sproull’s conduct, WorkSafe laid two charges against him alleging failure to provide assistance to WorkSafe’s inspectors as required by the HSWA. The first charge related to the failure to allow inspectors to inspect the farm property, and the second to Mr Sproull’s failure to attend a meeting and provide a statement to WorkSafe.
In the District Court, Mr Sproull was found guilty of both charges with Judge Krebs observing that:
“[Mr Sproull] was, of course, entitled to put WorkSafe to this task of satisfying him that they were entitled to claim assistance from him. However, in my view he went way beyond what was reasonable once he had the material which ought reasonably to have satisfied him in which the WorkSafe officers were obliged to provide. It was my view that he deliberately and intentionally went about obstructing them in the course of their investigation.”
Mr Sproull was fined $4,000 and ordered to pay a further $4,395 as a contribution to WorkSafe’s costs.
Mr Sproull appealed to the High Court, arguing that WorkSafe had failed to prove at trial that the inspectors were validly appointed. This was rejected by the High Court and the conviction and sentence imposed by the District Court was upheld.
The Sproull case serves as a timely reminder about the mandatory nature of the obligation to assist inspectors in the performance of their duties, and the potentially costly consequences of not doing so.
It is understandable that duty holders may be reluctant about engaging with WorkSafe for fear of compromising their own position. This is particularly so in the aftermath of workplace accidents. The answer is to get a lawyer involved to help, not refusing to engage.
It is important for duty holders to understand that exercising their rights and preserving their position, and cooperating and assisting WorkSafe in its investigations, are not mutually exclusive options. You can do both, if you are careful and respectful. It is, however, a challenging balance and not one we recommend attempting without legal support.
For further guidance on your obligations to assist WorkSafe in any interactions with your business, please contact our expert health and safety team.
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