It has come to our attention that some South Australian businesses are potentially increasing their risk of WH&S prosecution by not taking advantage of section 269 of the Work Health and Safety Act, which maintains employers’ right of legal professional privilege.
Here’s how it works. When a workplace safety incident occurs auditors will generally observe and advise improvements that could be made to the business’s safety practices. The same often happens during the course of routine preventative measures.
But if subsequently an incident occurs before you’ve been able to finalise the incorporation of any or all of those recommendations, and SafeWork SA requests copies of documents describing the safety measures you had in place at the time of the incident, you are not required to hand over any “work in progress” documentation if, and only if, you have arrangements in place to formally protect it by legal professional privilege.
It’s obviously beneficial for all workplace participants to identify areas for improvement in health and safety. But to minimise your risk of exposure to Work Health and Safety prosecutions, any documents recording this type of information should be protected.
So if you do not currently have these arrangements in place, we recommend you contact the DW Fox Tucker Employment team at your earliest possible convenience.
