WHS and Establishing Legal Privilege – The Non-Tangible Asset of Any Business

Legal professional privilege? Does it always stick? And why is it important? 

Legal professional privilege is an important protection for a business in work health and safety (WHS) matters, but only if carefully implemented and maintained. Many employers are aware of the importance of contacting their lawyers promptly and establishing legal privilege in WHS matters where a physical incident has occurred. With a rise in WHS matters and issues involving workplace behaviours, employers need to be on alert as to when they should be seeking to establish legal professional privilege in these situations. Establishing legal professional privilege from the outset in situations involving workplace conduct provides an opportunity to get legal advice, assess the issue and the employer’s obligations and may assist with controlling access to or disclosure of crucial documents and communications in regulator investigations.

What is Legal Professional Privilege?

In summary, legal professional privilege applies to communications and documents between legal practitioners and clients which meets the following criteria:

• it is a communication;

• that is confidential;

• between a lawyer and client (or a client and a third party); and

• has been prepared for the dominant purpose of either:
  

  • the lawyer providing legal advice to their client, or

  • to be used in litigation that is anticipated or occurring.

If a communication or document is privileged it is protected from disclosure in court proceedings or, in certain circumstances, from regulators with powers to ask for documents, such as WHS regulators.

WHS and Workplace Behaviours

As employers would be aware, there has been an increased focus recently on workplace behaviours, including sexual harassment in the workplace, workplace bullying, and workplace discrimination.

Not only do these types of behaviours pose a WHS risk to workers, WHS duties extend to others who may be at the workplace or affected by the work activities of the employer. Employers have a duty under WHS legislation to ensure, so far as is reasonably practicable, the health and safety of workers at work, and also that the health and safety of other persons is not put at risk from work carried out as part of the business or undertaking of the employer. This includes both physical and psychological risks, bearing in mind that recent amendments have been made to WHS regulations requiring employers to identify and manage psychosocial risks and hazards, including implementing appropriate control measures.

Consequently, an employer who fails to appropriately address and manage inappropriate workplace behaviours may find themselves in breach of their statutory WHS duties, the implications of which can include the issuing of improvement notices, infringement notices and even prosecutions. Employers may also have reporting obligations where some of these types of behaviours occur in the workplace. There is also the possibility of workers themselves bringing potential claims against the employer where subjected or exposed to inappropriate workplace behaviours.

Workplace Investigations and Legal Professional Privilege

No matter how trivial or minor a complaint or issue about workplace behaviour may seem, given the potential legal ramifications for employers, employers should look to establish legal professional privilege in these types of matters from the outset. It is not uncommon for employers to start their own investigation of an incident or complaint without first establishing legal privilege. Without the protection of legal privilege, it is likely this incident investigation material will have to be given to the regulator or inspector. 

Subject to the above privilege criteria being met, the following communications may be privileged in workplace complaints or investigations:

• communications between the employer and their legal representative about the workplace complaint or issue;

• any document prepared with a view to it being used as a communication between the employer and their lawyer, or for the purpose of providing legal advice, whether used or not;

• investigation reports, statements, notes, memoranda, minutes or other documents made by the employer for the purpose of the legal representative providing legal advice;

• communications and documents passing between the employer’s legal representative and a third party, for example an external investigator.

In the context of a workplace investigation, legal privilege may also assist an employer to:

• communicate with their legal representative more openly;

• obtain legal advice regarding the workplace investigation;

• understand their legal rights and obligations and therefore comply with the law, including any statutory reporting or disclosure obligations; and

• prosecute or defend any anticipated legal proceedings by enabling the lawyer to shape litigation strategy and potential defences based on an early understanding of the matter.

In Kirkman v DP World Melbourne Ltd [2016] FWC 605, the Fair Work Commission provided the following guidance as to the steps PCBUs may take to increase the likelihood of making a successful claim for legal privilege over an investigation report and associated documents:

• make it clear who is engaging the investigator and correspond consistently with that retainer;

• clearly identify the purpose of the investigation before it commences;

• ensure all documents are marked “privileged and confidential”;

• ensure communications are directed appropriately and with legal representatives present as necessary;

• manage expectations of participants at the outset regarding access to the investigation report and associated documents.

It is important to evoke legal privilege early on following an incident or report or complaint to make sure that the employer benefits from its protection; privilege which is evoked after a regulator has begun investigating will not protect material that came into existence prior to the regulator's investigation starting. It is also important that legal professional privilege is established properly from the outset to minimise the risk of it being challenged and steps are taken to ensure that privilege is not inadvertently waived.

Take away

You do not have to give information or documents to the regulator or an inspector if they are subject to legal professional privilege. Where employers find themselves dealing with inappropriate behaviours in the workplace, such as sexual harassment, bullying, or discrimination, they should seek to establish legal privilege as early as possible and before taking steps such as conducting a workplace investigation. 

For further advice or information, please contact the team at Henry William Lawyers.