WHS Investigations: Your rights to legal representation and why is it the subject of so much debate?

When a “notifiable” safety incident occurs at your workplace, particularly if it relates to a serious injury or death of a worker, the incident will be investigated by inspectors of the statutory workplace health and safety authority. Their job is to determine whether there has been a breach of the Work Health and Safety Act 2011 (Qld) (WHS Act).

To carry out the investigation, the inspectors will exercise their powers under the WHS Act to require documents to be produced and questions to be answered by workers. This is where a potential conflict of interest first arises, which has been the subject of recent debate, as:

  1. multiple entities and individuals have distinct and sometimes conflicting rights, responsibilities, and duties under the WHS Act, including the person conducting a business or undertaking (PCBU, i.e., the business or company) the “workers” and the “officers” of the PCBU;
  2. each entity and/or individual can be charged, prosecuted, and convicted under the WHS Act for breaching their duties; and
  3. solicitors have an ethical duty to act in the best interest of their client and avoid conflicts of interest between multiple clients. Solicitors should not concurrently represent clients if there is a risk for a conflict arising between them.

What this means is that a solicitor may be unable to simultaneously act for the PCBU, a worker and/or an officer of the PCBU.

As an example of how this potential conflict of interest will arise: There are systemic safety breaches at a workplace, including by one particular worker who rarely follows safety procedures. The breaches are being investigated and that worker is required to attend before an inspector and answer questions. It may be in the worker’s best interest (and their solicitor’s duty to advise the worker) to  volunteer information about the PCBU’s breaches to divert the focus away from their own breaches. In such circumstances, there would be a conflict interest as the solicitor would be unable to simultaneously act in the best interest of that worker by advising them to point the finger, and also the PCBU, who would be adversely affected by the worker’s finger pointing.

This potential for a conflict of interest has recently been the subject of great debate when investigations are conducted. In many instances, especially in Queensland, the statutory authority has taken a strong stance on this issue and has been virtually refusing to allow solicitors acting for the PCBU to act for or attend the witness interviews of the workers.

This article provides an analysis of the two competing positions.

WHS Investigation: Your right to legal representation

Under section 171 of the WHS Act, an inspector may require a person to attend before the inspector and answer questions in relation to a suspected breach of the WHS Act.

The person being interviewed must answer the questions asked, unless they have a “reasonable excuse” – noting that they bear the onus of demonstrating they have a reasonable excuse – and a refusal or failure to answer the questions is an offence under the WHS Act.

When such interviews are conducted, the person being interviewed is entitled to have a “representative” present (see section 171(4) of the WHS Act). Depending on the seriousness of the potential breaches and the individual’s preferences, this will typically be a solicitor.

This is where debate ensues regarding the potential for a conflict of interest. The two conflicting positing are as follows:

  1. On one hand, WHS inspectors want to ensure their investigations are conducted efficiently, thoroughly and without unnecessary issues or limitations. Some inspectors believe that allowing the PCBU’s solicitor to attend the witness interviews of the workers may comprise the investigation and, on that basis, take a strong stance against allowing it. Whilst they take the position under the guise of a need to avoid a potential conflict of interest, their position is fundamentally aimed at facilitating an efficient investigation and obtaining all potentially relevant information. The reality is, allowing the PCBU’s solicitor to attend the interviews and act for the PCBU’s workers may cause the workers to be less likely, or even reluctant, to divulge information that incriminates the PCBU. Inspectors want to avoid this and want the workers to feel comfortable answering all questions, providing all information and in some cases, volunteering information about breaches by their employer. Notably, the inspectors arguably have an implied power to exclude a solicitor from an interview if they reasonably believe it may compromise their investigation. This is sometimes raised by the inspectors.
  2. On the other hand, the powers conferred on the Workplace Health and Safety authority and its inspectors are those, and arguably only those, expressly contained in the WHS Act – there is no power to intervene and prevent a person from having the solicitor of their choice attend the interviews. Regarding the potential for a conflict of interest:
    1. that is a duty the solicitor owes to their client;
    2. it is the responsibility of that solicitor to ensure that that duty is not breached, and there is no conflict of interest; and
    3. if there is a potential for a conflict of interest, it is the duty of the solicitor (and not the WHS Inspector) to address it – which may include, for example, excusing themselves from the interview and advising the person being interviewed that they should seek separate legal representation.

The position taken by the investigators can have other implications and may result in workers, that cannot afford their own separate legal representations, having no legal representation. Such implications could cause unfairness and is inconsistent with the intended purpose of the WHS Act, which expressly entitles the person being interviewed to have a representative present at the interview.

As it stands, there is no answer to this great debate and solicitors acting for the PCBU will often find themselves in a stand-off with WHS inspectors. Do they take the point and argue tooth and nail, or do they pick their battles?

After sometimes a heated exchange – listing the competing positions – solicitors will typically advise their client to simply pick their battles and just arrange for the workers to be separately represented either through a different law firm or another team in their law firm with an information barrier established. In such circumstances, steps are usually taken to share information between the solicitors under the cover of legal privilege and the PCBU is nonetheless fully informed of the interviews by the workers – meaning that the position taken by the statutory authority is largely otiose.

For now, the debate will continue until someone refuses to attend an interview because of the position taken by the WHS authority.


Key contacts:

Jay Hatten Principal



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