Inspector's entry and workplace inspection policy
Policy Number TI-O-129 Effective Date 02 Apr 2012 Review Date 20 February 2015
Inspectors authorised to exercise functions under the Work Health and Safety Act 2011 (WHSA) in relation to mining workplaces or coal workplaces and related premises, should not sign any document or participate in any activity which seeks to impose conditions on their entry to those workplaces or premises, or the exercise of their statutory powers and functions on entry.
When exercising statutory powers and functions, inspectors and any person assisting the inspector should conduct themselves, as far as reasonably practicable, in accordance with relevant workplace safety procedures and wear appropriate safety clothing and equipment.
This policy applies to government officials appointed under the Mine Health and Safety Act 2004 (MHSA) and the Coal Mine Health and Safety Act 2002 (CMHSA) who are deemed as inspectors for the purposes of the WHSA and are authorised to exercise functions under the WHSA in relation to a mining workplace (a mines WHS inspector) or a coal workplace (a coal mines WHS inspector), and related premises. The policy applies when a mines WHS inspector or a coal mines WHS inspector (an inspector) seeks to exercise powers of entry under the WHSA over a relevant workplace or premises.
Three areas addressed by this policy are:
- Powers of entry
- Compliance with workplace procedures
- Safety clothing and equipment
Coal workplaces, mining workplaces and other related premises have established procedures to manage the entry and conduct of people while on site. These procedures commonly classify persons entering the workplaces (for example employees, visitors, contractors, etc) and include induction programs requiring persons to sign documents that stipulate conditions of entry.
Conditions of entry are established to manage persons over whom control and direction can be exercised and generally do not apply to government officials entering the workplace under statutory authority, as is the case with inspectors.
Inspectors exercising powers under the WHSA have the power to enter a workplace without giving prior notice to any person or gaining the consent of the person with management or control of the workplace.
There are important ethical, operational and legal reasons for inspectors not to sign documents or participate in any activity that may be used to try to restrict or control the way in which an inspector exercises their statutory powers.
In most circumstances, inspectors will follow the safety based procedures established at a workplace. An example is wearing of department designated personal protective equipment (PPE). A list of common PPE worn by an inspector is provided in the procedures below.
The Resources and Energy Division of NSW Trade and Investment (the Department), is committed to securing compliance with work health and safety laws and standards in coal and mining workplaces. Inspectors authorised to exercise statutory functions under the WHSA at coal workplaces, mining workplaces and related premises must exercise their statutory functions and powers in an effective and independent manner. This may be adversely affected by imposition of conditions on entry to a workplace.
- Powers of entry
Inspectors exercising powers of entry over a workplace under Part 9, Division 3 of the WHSA should not sign any document or participate in any workplace testing program, such as drug and alcohol testing, which attempt to impose conditions on entry or limit their statutory powers and functions. A person assisting an inspector under section 166 of the WHS Act also should not sign any document or participate in any workplace testing program that would prevent them giving assistance in the manner that the inspector reasonably requires in the exercise of their compliance powers.
Any conditions placed on an inspector that purport to prohibit or prevent the exercise of statutory powers are invalid. Site specific policies and procedures cannot limit the powers given to an inspector under statute. For example, an inspector cannot be prohibited from taking photographs and recordings, conducting tests, taking measurements or removing samples.
Any person insisting that an inspector sign a document or participate in a workplace testing program that attempts to impose conditions or limits on the inspector's statutory powers and functions may be committing an offence. It is an offence for a person to intentionally hinder or obstruct an inspector in exercising their compliance powers (section 188 of the WHSA). It is also an offence for a person to directly or indirectly assault, threaten or intimidate, or attempt to assault threaten or intimidate an inspector or a person assisting an inspector (section 190 of the WHSA).
- Compliance with other workplace procedures
Inspectors and persons assisting an inspector in the exercise of the inspector's compliance powers are expected to conduct themselves in accordance with relevant workplace safety policies and procedures. Where an inspector has good reason not to comply, the inspector must be satisfied their actions are safe and in accordance with their statutory powers.
- Safety clothing and equipment
Inspectors and persons assisting an inspector in the exercise of the inspector's compliance powers are required to wear appropriate safety clothing and essential safety equipment provided by the department. Clothing should identify the inspector as a departmental representative and be clearly visible whilst at the workplace.
The WHSA provides that an inspector may enter a workplace, or suspected workplace, at any time, with or without the consent of the person with management or control of the workplace (section 163). The inspector does not have to give notice of entry to any person, but as soon as possible after the entry must take all reasonable steps to notify the following people of the entry and the purpose of entry:
(a) the relevant person conducting the business or undertaking at the workplace,
(b) the person with management or control of the workplace,
(c) any health and safety representatives for workers carrying out work at the workplace.
The inspector does not have to notify these people if it would defeat the purpose for which the place was entered or would cause unreasonable delay (section 164).
An inspector must be issued with an identity card, and must produce the card for inspection on request when exercising compliance powers. A single identity card may be issued to a person in relation to functions as an inspector under the WHSA and functions to be exercised under the CMHSA or the MHSA, or both (see sections 156A and 157 of the WHSA).
This policy still applies in circumstances where the inspector has been invited to enter a workplace or related premises to attend a presentation, training day, meeting or educational event. Even though the inspector did not enter the workplace in order to carry out inspection or compliance functions, the inspector is still a representative of the department and must maintain their independence and capacity to effectively exercise statutory powers if needed. For example, an inspector may be attending a training day on site and see an obvious breach of the WHSA that requires the inspector to exercise compliance powers. If these circumstances arise, the inspector should comply with the WHSA in relation to powers of entry as discussed above.
Persons assisting inspectors who are not appointed as inspectors under the WHSA are also not subject to the workplace conditions on entry to coal operations, mines or other workplaces. Section 166 of the WHSA gives the inspector the power to reasonably require the person assisting them to do things that the inspector has power to do in exercising compliance powers. Anything done by the assistant is taken to have been done by the inspector.
List of personal protective equipment (PPE)
- Hard Hats
- Safety Glasses/Goggles
- Hearing protection including ear muffs or plugs
- High visibility clothing or vests
- Gloves: cotton, riggers gloves and waterproof gloves
- Steel toed safety boots
- Dust masks
- Wet weather equipment
- Solar protection: soft brimmed hat, hard hat visor or sombrero brim for hard hats
Roles and responsibilities
- Work Health and Safety Act 2011 (Part 9)
- Mine Health and Safety Act 2004 (Part 10 Division 2)
- Mine Health and Safety Regulation 2007 (Part 11 Divisions 1 & 2)
- Coal Mine Health and Safety Act 2002 (Part 10 Division 2)
- Coal Mine Health & Safety Regulation 2006 (Part 2 Division 6)
- NSW DPI Drug and Alcohol Policy A-060 June 2007(staff only)
- NSW DPI Drug and Alcohol Procedure June 2007 (staff only)
- Code of Conduct TI-A-130
Other related documents
- Register of Health and safety policy documents
- Position Description – Inspectors, Mine Safety Officers
- Appointment of Inspectors or mine safety officers as investigators
- Coal workplace
- means a place of work to which the CMHSA applies.
- Mining workplace
- means a place of work that is a mine to which the MHSA applies, or at which activities under the Petroleum (Onshore) Act 1991 or Petroleum (Offshore) Act 1982 are carried out.
- Inspector (for the purposes of enforcing the WHSA, CMHSA or MHSA)
- A person deemed to be an inspector for the purposes of the WHSA under section 156A, such as a mines WHS inspector and a coal mines WHS inspector.
- Mines WHS inspector
- a person who is a government official under the MHSA and who is deemed to be an inspector for the purposes of the WHSA, as described in section 156A (2) of the WHSA. Includes inspectors, mine safety officers and investigators appointed as government officials under the MHSA. A mines WHS inspector is only authorised to exercise functions under the WHSA in relation to a mining workplace or at other premises if related to a WHSA matter at a mining workplace.
- Coal mines WHS inspector
- a person who is a government official under the CMHSA and who is deemed to be an inspector for the purposes of the WHSA, as described in section 156A (3) of the WHSA. Includes inspectors, mine safety officers and investigators appointed as government officials under the CMHSA. A coal mines WHS inspector is only authorised to exercise functions under the WHSA in relation to a coal workplace or at other premises if related to a WHSA matter at a coal workplace.
- has the meaning provided in section 4 of the WHSA, which is a place where work is carried out for a business or undertaking and includes any place where a worker goes or is likely to go.
- Person conducting a business or undertaking
- has the meaning provided in section 5 of the WHSA. It includes private companies and trustees or cooperatives that are companies. A health and safety duty is owed by a PCBU if it arranges, directs or influences work to be done, or contributes something towards the work to be done.
- Person with management or control of the workplace
- means a person who is in a position to effectively manage and control the workplace, and, as far as reasonably practicable, ensure that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risk to the health and safety of any person. The person with management or control of the workplace may not necessarily be the person conducting the business or undertaking. For example, a company may be conducting a coal mining business, but contract management of the onsite operations, and therefore management and control of the coal workplace, to another company.
This policy replaces:
- Inspector's entry and workplace inspection - DPI O-044 2008.
|1||20/02/2012||New policy due to creation of NSW Trade & Investment and introduction of Work Health & Safety Act 2011||
Mine Safety Operations Branch
Director, Mine Safety Operations (02) 4931 6458.