The occurrence of a safety incident in your workplace should trigger a range of responsive actions within your organisation: it could be root-cause analysis to reveal the reason for the incident, to update your hazard identification register and provide further retraining or, increasingly, to enable your organisation’s officers to comply with their safety due diligence duties. Certain incidents, however, need to be escalated outside your business to the safety regulator. This must be undertaken within a tight deadline, otherwise you risk exposing your organisation to a criminal conviction and fines of up to $45,000.
While some elements of the legislative definition for such “notifiable incidents” are easy to recognise (eg fatalities and serious injuries), incidents of this nature are, thankfully, relatively rare in the context of the vast majority of Australian workplaces.1 The real challenge for employers is knowing when to notify the safety authority for less serious incidents and near misses.
In this article, we look at the key considerations you need to make in the aftermath of an incident, and the consequences for getting it wrong. We also offer some tips on how you can better prepare your organisation should the unthinkable occur.
Elements of the definition
Broadly, the definition is broken down into two “limbs”: incidents that result in harm to a person and incidents that expose a person to harm. The first limb is further divided into subcategories according to the type of treatment the injured person may require. Table 1 on the following page sets out the definition schematically.
In relation to incidents that expose a person to harm, the position on when to notify varies between Victoria, WA and the WHS jurisdictions.
In Victoria, the near miss must have exposed a person in the immediate vicinity of the incident to an immediate risk to the person’s health or safety. risk to the person’s health or safety from an immediate or imminent exposure.
In jurisdictions that have enacted the model Work Health and Safety (WHS) laws, the test is different: a “dangerous incident” must be notified if it exposes a person to a serious risk to the person’s health or safety from an immediate or imminent exposure.
At present, WA does not have equivalent “near miss” notification obligations, although such requirements are capable of being prescribed under regulations. If the State’s Work Health and Safety Bill 2014 (WA), in its current form, becomes law, then near misses will become notifiable in WA.
Notification obligations can evolve after the incident
Whilst most employers can appreciate that an incident is or is not notifiable at the time it occurs, some employers fail to appreciate that the duty to notify can develop well after the immediate event, depending on later actions. For example, a person may be taken to the hospital for precautionary reasons as a day-patient (eg for mild concussion), but later be required to remain overnight for monitoring upon assessment by a medical practitioner. In this instance, the duty to notify the safety authority arises at the point the person is required to remain in the hospital as an in-patient. You should always ensure that contact is maintained, so far as is reasonably practicable, after an injured person attends hospital or if there is a chance of the injury/illness escalating.
The Victorian WorkCover Authority (VWA) recently prosecuted an employer for failing to make a notification after an employee cut her finger while washing dishes. The VWA reported that the employee was drying the cup with a tea towel when it shattered, cutting her finger. She was later required to have surgery to repair tendons, nerves and an artery. The point at which the incident became notifiable at law may have been immediately after the incident, assuming that those providing first aid were capable of assessing the injury as a “serious laceration”, or it may only have become evident after the employee was required to have treatment as an in-patient. In any case, within a short space of time a seemingly routine activity that takes place in most workplaces exposed that employer to a criminal conviction.
Click here to view table.
How soon must you report and in what form?
A key feature of notification obligations in all jurisdictions is the urgency with which the obligations must be complied. Again, however, there are subtle variations between safety laws across Australia. The table below sets out the current differences.
Click here to view table.
Whose obligation is it to notify?
In most workplaces where only one employer is present, the obligation to notify rests with that employer. A challenge arises for a complex workplace, such as development or construction sites, where a wide range of employers may be present.
In WA, the obligation applies to the employer where it involves an employee or where the injury is in connection with the employer’s business. A self-employed person is also required to notify when the injury arises in connection with their business.
In Victoria, the obligation sits with the employer (or self-employed person) who has “management and control” of that workplace. This could be a principal contractor, if such arrangements are in place; however at other sites, control and management may vary over a project and pose a challenge to determining who is primarily responsible.
The WHS laws are even more problematic, because the obligation to notify is expressed as being the responsibility of a person who conducts a business or undertaking (PCBU) where the incident arises out of “the conduct of the business or undertaking”. As the law does not specify exactly whose undertaking, more than one PCBU at a shared site may be jointly responsible for notification. Safe Work Australia guidance states that:
If the ‘notifiable incident’ arises out of more than one business or undertaking then each must ensure that the incident has been notified to the regulator. There is no need for all duty holders to notify—only one needs to. In these circumstances the duty holders must, so far as is reasonably practicable, consult, cooperate and coordinate to put appropriate reporting and notification arrangements in place.2
Notification will be particularly challenging for complex, multi- PCBU sites, such as development sites. Duty holders at Victorian and WHS sites should consider clarifying notification protocols at the beginning of any multi-PCBU projects to ensure notifications are not delayed due to uncertainty in whose role it might be. Arguably, putting in place such arrangements may be considered mandatory under the duty of consultation between PCBUs under the WHS laws.
Site preservation: Double jeopardy?
In both WHS jurisdictions and Victoria, the duty to notify is accompanied by a further duty to preserve the site at which the incident occurred. It is not surprising that in many instances in which a duty holder has failed to notify the regulator of an incident, they will also have failed to preserve the site.
Incident response app
Indeed, for the past two years’ prosecutions in Victoria for failing to notify, over 60% of those listed also prosecuted the duty holder for failing to preserve the scene.3 Whilst it may be arguable that this gives rise to a type of “double jeopardy”, in fact the underlying policy of notification is to provide the regulator an opportunity to intervene and take steps to address any safety issues for the most serious of workplace incidents. Where deliberate or unintentional, disrupting the scene of an incident could frustrate the regulator’s capacity to investigate and understand the cause of an incident. As safety law is criminal, this duty can be considered akin to protecting the “scene of a crime”.
There are exceptions to interfering with the incident scene, such as ensuring the safety of any person where an ongoing risk remains due to the incident (eg containing a chemical spill). Otherwise, you should contact the regulator and seek permission from an inspector before making any alterations to the scene.
What happens next?
Complying with incident notification obligations does not mean you will be automatically investigated by the regulator. As with all modern regulators, the approach taken to enforcement in safety is strategic and aligns with a risk-based approach to ensure that the State’s resources are targeted towards the areas of greatest need. You can expect that all fatality notifications will result in the regulator following up the notification with a visit, however, in all other instances, the regulator is likely to assess the imperative to respond against the resources it has available at any given time.
In any case, you should take steps to respond to the incident to ensure it is not repeated. In many circumstances, it will be advisable to seek legal advice on your potential liability. In such instances, be sure to speak to your legal representatives before commencing any investigation so that you do not inadvertently waive a right to maintain legal professional privilege that may exist in relation to the process.
A final thought of officers
Officers expected to exercise due diligence in fulfilment of their duties under the model WHS laws should pay particular attention to the effectiveness of their organisation’s incident response systems. The WHS laws specifically identify the processes in place for responding to a notifiable incident as one of the minimum standards against which you will be judged in any assessment of how you are discharging your duties.
Incident response training and conducting incident response drills should be considered an essential component of your organisation’s annual compliance calendar and used to assess how ready your organisation is to respond to the otherwise unthinkable.