Hand them over: First charges under WA Work Health and Safety Act may result in fines of $1.87m

Western Australia’s WorkSafe regulator (WorkSafe), the State’s body tasked with enforcing the Work Health and Safety Act 2020 (WA) (Act), has laid charges under the Act for the first time against a company for failing to produce documents.

The recently amended Act, which came into force in March 2022, provides WorkSafe inspectors broad powers to enter workplaces, to be able to inspect or remove things from a workplace, and to require persons to assist the inspector in exercising their powers. The Act provides an express power for a WorkSafe inspector to be able to require persons to produce documents immediately while they are at a workplace or within a specified period of time. If a person (including a corporation), does not comply with an inspector’s requirement to produce documents, they may be fined up to $55,000.00.

Fortescue Metals Group (FMG) operates several iron ore mining sites across Western Australia, engaging around 12,000 employees. WorkSafe asserts it was investigating 34 cases of alleged sexual harassment on FMG mine sites, when it required FMG to produce documents. FMG initially refused to provide the documents required of it, citing concerns providing documents (which allegedly contains personal information of employees) would breach the Privacy Act 1988 (Cth).

Since being charged, FMG has said it will provide the documents, however, will be redacting names of employees. It is unclear if this will quell WorkSafe. The matter has been set down for a mention before a Magistrate on 17 March 2023. If successfully prosecuted, FMG faces fines of up to $1.87m.

The charges brought serve as a timely reminder that State regulators have substantial powers under Work Health and Safety laws. The Act, and its model counterparts across each State, provide very broad powers for inspectors to enter workplaces and to require production of materials. If an inspector seeks to enter your workplace or require documents, it is recommended that you seek legal advice.

NRA Legal specialises in the delivery of employment and work health and safety law services for employers. If you require support, please contact us on 1800 572 679 or hello@nralegal.com.au.