When compliance is not optional

While section 155 notices can represent a significant operational burden for businesses, proactive employers can reduce risk and long-term impact, according to one workplace law expert.

As one of the most readily used monitoring and information-gathering tools used by work health and safety (WHS) regulators, section 155 notices are widely considered to be among the strictest under Australian law.

With the opportunity for flexibility or adjustment rarely an option, businesses that view them as a request rather than a direction put themselves at risk of prosecution.

According to a special counsel at Hall & Wilcox, Nicholas Beech, this conduct can often arise from the understanding that the notices can be addressed “when operational demands and personal availability permit it”. However, there is often very little scope to extend the period of compliance.

“The courts treat a failure to comply with a section 155 notice as a stand-alone offence, even where no other enforcement action is ultimately pursued or the failure arises from disorganisation, delay or misunderstanding rather than deliberate defiance,” he said.

Beech identified the broad and sometimes unassuming nature of a section 155 as a potential challenge for organisations, given that regulators only need to believe a person is capable of giving information or evidence in relation to possible WHS law contraventions or compliance to send a notice, and are not required to remind or further prompt the recipient.

Similarly, if information is not all in the same location, specific personnel are required within a short time period, or confidential materials are requested, responding with the requested scope can be difficult, especially considering there is no formal avenue to discuss or raise questions around the meaning or breadth of the notice.

In this way, Beech noted the importance of treating notices seriously and comprehensively, and responding in a way that limits the possibility of mistakes.

He also urges employers to strictly and fully comply with each requirement of the notice, provide all requested information and documents within their knowledge, possession, custody or control, adhere to the specified time and medium, and act to the best of their ability to ensure compliance.

He said: “It is good to remember that the responses to a section 155 notice can be used as evidence in any enforcement action, including a prosecution. This means it is equally important to not only ensure full compliance with the notice but that the responses are accurate.”

And while recipients can offer a reasonable excuse to not comply, such as legal privilege, physical impossibility, or truly missing documents, Beech noted that the acceptance threshold is highly rare.

“Importantly, claiming the privilege against self-incrimination is not a reasonable excuse as reliance on the privilege is expressly excluded,” he said.

“Early legal involvement and disciplined, proactive compliance are the most effective ways to avoid exposure to the risk of breach and criminal penalties.”

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