Home' Work Health and Safety : Issue 1 Contents 39
investigation reports in the wake of the incident and the applicants sought
discovery of those on the basis that they were not commissioned for the
dominant purpose of legal advice or anticipation of legal proceedings.
Rather, they argued that these documents were required for a multiplicity
of reasons, including to identify the cause of the fire as part of its normal
business operations and to comply with reporting obligations imposed by
the Electrical Safety Act 1998 (Vic). The Court ultimately held that the
reports did not attract privilege and this decision was upheld by the Court
of Appeal.36 The decision was made on the basis that the assertions of
privilege were not supported by evidence from Powercor employees,
particularly on the non-legal purposes for which the reports were
In practice it may be prudent for organisations to implement a procedure
determining which incidents should be investigated with the benefit of legal
professional privilege. This may include any incident which must be notified
to the Regulator under Part 3 of the WHS Act, as these are more likely to
form the basis of an external investigation and possibly legal action. Once
determined, any such incident should be referred to solicitors to lead the
investigation. The content of communication with them must be carefully
worded to ensure that privilege is attached. This procedure should be
communicated to senior employees and others likely to engage with
solicitors following an incident.
Consideration of whether legal advice is required should be done as soon as
possible to ensure that privilege is established at an early stage. It is likely
that privilege will be claimed on the basis of proposed / pending litigation as
a result of the incident, or the dominant purpose of obtaining legal advice (as
a consequence of the incident). At all stages of the process, organisations
must be careful about what information is disclosed, as a key requirement
to claiming privilege is that the information must be and remain confidential.
Any acts inconsistent with this may waive inadvertently privilege.
Union involvement and right of entry
The Fair Work Act 2009 (Cth) (FWA) now makes provision for union officials
who hold permits as required by the FWA with the right to enter a workplace
to investigate breaches of the FWA. Only a WHS permit holder may enter
a workplace for the purposes provided in the model laws and exercise the
rights provided in the model laws.
A union may apply to the authorising authority for the issue of a WHS
entry permit to a person who is an official of the union. That person must
satisfactorily complete prescribed training, and also hold an entry permit
under the FWA or relevant state or territory industrial law. The model laws
include detailed provisions for making and considering an application for
a WHS entry permit. The model laws also provide for disqualification of a
person from obtaining a permit, and for imposing conditions, suspending or
revoking a permit.
A WHS permit holder may only seek entry under the model laws in specified
circumstances, which include:
► to enquire into a suspected contravention of the model laws that relates to
or affects a relevant worker;
► the WHS permit holder must reasonably suspect that the contravention
has occurred or is occurring, before entering the workplace; and
► to consult and advise relevant workers who wish to participate in
discussions on WHS matters.
A WHS permit holder may enter a workplace immediately to enquire into a
suspected contravention, but must as soon as is reasonably practicable after
entering the workplace give notice of entry and the suspected contravention
to the relevant person conducting a business or undertaking (unless giving
the notice would defeat the purpose of the entry or unreasonably delay the
permit holder in an urgent case).
A WHS permit holder must give written notice of intended entry to consult
and advise workers at least 24 hours but not more than 14 days before
the entry, unless the permit holder has given notice under s 487(1)(b) of
the FWA to the person conducting a business or undertaking of the entry
to hold discussions with workers. While immediate entry may be made
to inquire into a suspected contravention (which may deal with a serious
and immediate or imminent risk), entry to a workplace for the purposes of
consultation and advice to workers is aligned to the provisions of the FWA.
Upon entry, the WHS permit holder must present for examination, on
request, a photograph and entry permit. A WHS permit holder may only
enter a workplace during usual working hours, and must not enter any part of
a workplace that is used only for residential purposes.
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