Special Counsel, Kennedys
Alen is a Special Counsel at Kennedys. He has a decade of experience in the local government industry, primarily defending and advising local government employees and elected members. Common matters include employment related claims, regulatory prosecutions particularly by the Department of Water and Environmental Regulation, WorkSafe investigations, inquiries including CCC inquiries, and defamation issues. Alen has also completed a number of secondments with WALGA and works closely with LGIS.
Alen has acted in many high profile and complex disputes and is recognised by clients for his technical expertise and commercial approach when acting in contentious matters. He is admitted as a barrister and solicitor of the Supreme Court of WA and the High Court of Australia. In recent years, Alen was named in Insurance Business Australia’s list of Young Guns, in Australasian Lawyer’s list of Rising Stars, and by Best Lawyers in the practice area of Insurance Law.
The following incidents must be reported to WorkSafe:
The death of a person;
A serious injury or illness of a person, including amputation, serious head injury, serious eye injury, serious burn, serious laceration, and loss of bodily function; and
A dangerous incident, including electric shock, the collapse or partial collapse of a structure, uncontrolled spillage or leakage of a substance, and uncontrolled implosion, explosion, or fire.
These notifiable incidents must be reported to WorkSafe immediately by phone or in writing. The guidance from WorkSafe is to report deaths and life-threatening incidents by phone on 1800 678 198 (24-hour line), else the notification must be made in writing online on WorkSafe’s website. If in doubt – report it.
The circumstances to notify have changed significantly under the new WHS legislation, so internal policies and procedures should be reviewed to ensure this has been accounted for.
LGIS continued with our new workers’ compensation act roadshow, this time educating the northern metro members on the significant legislative changes. Together with WorkCover WA and legal partners Moray & Agnew, we delivered another tailored information session on the new Workers Compensation and Injury Management Act (2023) WA.
Reporting incidents to WorkSafe, and WorkSafe notices – what are they and what should you do if you receive one? One of WorkSafe’s primary objectives is ensuring compliance with the Work Health and Safety Act 2020 (WA) (WHS Act) by carrying out investigations and, where appropriate, taking enforcement action.
Both MOUs and formal contracts are common instruments within the local government sector in Western Australia. However, it is important that members are familiar with significant and often subtle differences between MOUs and contracts as the risks associated with getting it wrong can be costly.
| Do |
|---|
| 1. Call 000 if it is an emergency; |
| 2. Provide first aid and care for injured workers; |
| 3. Preserve the site and ensure it is not disturbed until told otherwise by WorkSafe; |
| 4. Triage what has happened (who, what, where, when); |
| 5. Consult any internal policies and take the steps laid out in them; |
| 6. Appoint a contact person and establish a line of communication with external agencies such as the police and WorkSafe; |
| 7. Contact LGIS and; |
| 8. Seek legal advice before conducting any internal or external investigation into the incident. |
| Don't |
|---|
| 1. Delay in notifying WorkSafe and LGIS; |
| 2. Disturb the incident site, including any equipment r elating to the incident; |
| 3. Issue a media release commenting on the cause or how it occurred; |
| Providedocumentsorinformationvoluntarilytothirdparties (including regulatory officials) unless compelled by law to do so; |
| 5. Commence any investigation into the cause of the incident without obtaining legal advice, as these investigations will not attract legal professional privilege, meaning, any documents created in connection with the investigation may have to be disclosed to WorkSafe as part of any investigation or prosecution. |
If a notice to produce documents is issued, the recipient should consider:
Whether the documents sought are in the recipient’s possession, custody or power;
Whether any of the requests within the notice are objectionable on the basis of being too broad, vague, or seeking documents irrelevant to incident being investigated;
Whether any documents are subject to legal professional privilege; and
Whether the notice can be responded to in the allocated timeframe (usually 7 or 14 days) and, if not, whether requesting an extension is necessary.
A notice to attend an interview compels the recipient to submit to an interview at a specified time and place, and to answer questions asked by WorkSafe. Reasonable efforts must be made by WorkSafe to agree to a time and place with the person being interviewed. Generally, it’s best to be compelled to an interview instead of agreeing to be interviewed voluntarily, because evidence given by a person during a compelled interview, as opposed to a voluntary one, cannot be used against that person in future civil or criminal proceedings.
It is prudent to seek legal advice in advance of any interview, and to have a lawyer or support person present. Employees, officers, and elected members should also notify their respective local governments to facilitate assistance and support through the process.
Where an investigation or inspection reveals non-compliance with the legislation, the enforcement options available to WorkSafe include issuing improvement notices and prohibition notices.
An improvement notice is a written direction requiring a person to remedy a contravention of the legislation, prevent a likely contravention from occurring, or remedy things or operations causing a contravention.
Prohibition notices are less common and are issued where there is a risk of imminent and serious injury or harm to the health of a person. As the name suggests, a prohibition notice is a direction prohibiting the carrying on of an activity, or the carrying on of the activity in a specified way, until the matters giving rise to the risk have been remedied.
The first step after receiving an improvement notice or prohibition notice is to ensure it’s displayed in a prominent place at or near any workplace affected by the notice.
The timeframe for compliance with the notice and whether it is achievable (if not, extensions can be sought); and
Whether to seek a review of the decision to issue a notice. Applications for a review can be made internally to WorkSafe or externally to the Work Health and Safety Tribunal and could result in the notice being varied or cancelled.
Swift action is necessary as timeframes to comply with notices, or to seek review of notices, are generally short. Significant penalties may apply for any failure to comply with a notice.
Dealing with WorkSafe and navigating the requirements of the WHS Act can be stressful and daunting. Legal assistance can be invaluable to combat the adage “you don’t know what you don’t know”. LGIS can assist with arranging legal representation and providing other assistance. If a notifiable incident occurs or you are contacted by WorkSafe in relation to any form of notice, you should contact LGIS without delay. Assistance is also available under the Complimentary Legal Helpline which is one of the benefits of the protection policy arranged for local governments by LGIS. Under the Complimentary Legal Helpline, a local government may seek up to two hours of free and confidential legal advice with Kennedys, subject to certain conditions. The complimentary number is contained in your Management Liability Protection policy. A short call for rapid advice may be instrumental when dealing with an evolving incident.
Welcome to the Winter edition of 2024! As we wrap up the financial year, we’d like to take this opportunity to thank you for your continued support. We’re pleased to share that we’ve had a complete renewal with an outstanding 100% retention of our membership.
1 July 2024 marked the adoption of the new Workers’ Compensation and Injury Management Act (WA) 2023, bringing with it an emphasis on workers and getting them back to work.
Over the past few months LGIS has adopted the triaging approach to injury management and it’s already paying dividends – delivering improved outcomes for the injured worker and saving money for the Scheme and members.
LGIS is the unifying name for the dedicated suite of risk financing and management services for WA local governments, established by the WA Local Government Association in conjunction with JLT Public Sector (part of the Marsh group of companies). LGIS is managed by JLT Public Sector (ABN 69 009 098 864 AFS Licence 226827).
Risk Matters, via this website, is designed to keep members, their staff and elected members informed on topical risk management and insurance issues and LGIS programs and services.
