The recent decision by the NSW Supreme Court (Perilya Limited v Nash (2015) NSWSC 706) clarifies and reveals the broad powers that WorkCover NSW has to obtain documents that are in the possession of a person (See footnote at end of article for meaning of ‘person’)
The extent of WorkCover’s powers may surprise and motivate PCBUs and Officers to review their workplace documentation and actions to ensure they reflect the appropriate attention that a PCBU, its Officers and other duty holders give to WHS matters.
What the WHS Act Says
Section 155 of the WHS Act basically says that if WorkCover has reasonable grounds to believe that a person is capable of providing documents or information, or giving evidence that will assist WorkCover to locate a possible contravention of the WHS law, or to monitor or enforce compliance with WHS law, then those documents or information or evidence must be given to WorkCover.
- What if the documents do not mention health and safety matters? Does the NSW WHS Act still apply?
- And what if the documents contain commercially sensitive information?
- What if the documents are created and located at the PCBU’s head office in another State.
- And what if some of the documents were created before the WHS Act came into force?
What the NSW Supreme Court Decided
The NSW Supreme Court decided that WorkCover’s powers to obtain documents or information under section 155 are “broad, information-gathering, coercive powers”.
And in this particular case (Perilya v Nash 2015), they decided that the board minutes required by WorkCover must be given to WorkCover even if:
- there is no reference to health and safety matters in those documents
- there is commercially sensitive matter in those documents
- those documents were created and are held at Head Office in West Australia
- some of those documents were created before the WHS Act came into force
The fact that documents, such as board minutes, do not mention health and safety could well demonstrate that the board members were not carrying out their duty of due diligence at a time when they should have been in action.
What You May Need to Do
Although this is a NSW Supreme Court decision it will be referenced in any similar court action in other Australian States because Regulators in other States have the same or very similar powers to obtain documents.
So regardless of where an organisation operates in Australia, all duty holders in that workplace should be resourced and compliant with the health and safety law in that location and workplace documents should properly reflect the appropriate actions and attention that all duty holders (PCBU, Officers, Workers, and Others) must give to health and safety matters.
If a fatality or serious incident occurs in the workplace, board members and other Officers should pay particular attention to their actions and the content of their documentation, and give early consideration to whether they need to obtain legal advice about the situation.
Footnote: The word ‘person’ is defined in laws dealing with interpretation of legislation to include an individual, a body corporate (company), unincorporated body or association and a partnership.
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