The duty to notify the safety regulator can fall on various people simultaneously, and there are penalties for failing to comply.
In the immediate aftermath of a serious or dangerous incident occurring at your workplace, it can be easy to forget that one of the first things you need to do is notify the regulator. In this article we summarise when and how to comply with this obligation.
Incident notification under the work health and safety Acts in the harmonised jurisdictions
The harmonised jurisdictions are those that have adopted the harmonised work health and safety regime: the Commonwealth, Queensland, New South Wales, the Territories (and, from 1 January 2013, Tasmania and South Australia).
What is a "notifiable incident"?
A serious injury or illness which requires a person to be admitted to hospital for treatment, or which requires a person to receive immediate treatment for the amputation of a body part; a serious head injury; a serious eye injury; a serious burn; degloving or scalping; a spinal injury; the loss of a bodily function or serious lacerations, or which requires a person to receive medical treatment within 48 hours of exposure to a substance.
A dangerous incident (or a "near miss") that exposes a worker or any other person to a serious risk to their health and safety from an immediate or imminent exposure to a number of things including but not limited to:
- an uncontrolled escape, spillage or leakage of a substance;
- an uncontrolled implosion, explosion or fire;
- an uncontrolled escape of gas or steam;
- an uncontrolled escape of a pressurised substance;
- electric shock;
- the fall or release from a height of any plant, substance or thing; or
- the collapse or partial collapse of a structure.
Who needs to notify the regulator?
A person who conducts a business or undertaking (PCBU) in respect of which a notifiable incident occurs.
More than one PCBU can have a duty to notify the regulator about the same incident. For example, if a PCBU (the first PCBU) contracts out its cleaning work to a company providing cleaning services (the second PCBU), and one of the cleaners is injured when cleaning the first PCBU's premises, both the first and second PCBU are separately required to notify the appropriate regulator.
It is important that appropriate reporting processes are implemented between duty-holders so that all parties can comply with their obligations under the legislation.
When to notify the regulator about a notifiable incident
The regulator must be notified immediately after the PCBU becomes aware of the occurrence of a notifiable incident in relation to their business or undertaking. However, the notification requirement does not prevent a person from assisting an injured worker or taking steps to secure the incident site and to ensure the safety of others.
Where a notifiable incident has occurred, given the risk that action may be taken by the regulator against a PCBU in respect of the incident it is also prudent to immediately contact your work health and safety lawyer. In some cases, your lawyer may be best placed to notify the regulator on your behalf in order to best protect your company's interests.
How to notify the regulator
The legislation requires PCBUs to use the "fastest possible means" to notify the regulator, which can either be by telephone or in writing (which may be communicated electronically). However, WorkCover New South Wales prefers PCBUs to provide immediate notice by telephone.
If notice is provided in writing, most regulators (excluding WorkCover New South Wales) have an approved notification form that you must use which is available from their website. If notice is given by telephone, the regulator may ask you to also submit written notice on the approved form within 48 hours.
The type of information you are required to provide to the regulator will include what happened, when it happened, who was involved, who was injured/killed, what has been done to prevent further injuries to others and contact information for the PCBU.
What happens if you don't comply with the notification requirements?
Failure to comply with the legislation can result in the imposition of a fine up to $50,000 on a company or $10,000 on an individual.
Incident notification in Victoria and Western Australia
The incident notification requirements in Victoria and Western Australia, where harmonised work health and safety legislation does not apply, are nonetheless similar to the requirements under the harmonised legislation. We recommend you obtain legal advice specific to your circumstances if a serious injury, death, or dangerous incident occurs.
What happens after you notify the regulator?
Depending on the nature of the incident:
- an Inspector may attend the workplace to investigate the incident and determine whether any action will be taken; and
- depending on the nature of the incident, it may also be necessary to contact your workers compensation insurer.
You must also comply with any specific record-keeping requirements (for example, the requirements under the harmonised legislation for records of an incident notification to be kept for five years).
You might also be interested in...
- Codes of Practice - A vital tool in discharging work, health and safety responsibilities
- Can you trust your independent contractor with WH&S obligations?
- Setting the course for OH&S policy and enforcement: the Australian Work Health and Safety Strategy
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.