Businesses who may have the unfortunate experience of a workplace incident or injury need to be extremely mindful of their obligations to notify the relevant safety regulator (SafeWork) as the primary duty holder, a Person Conducting a Business or Undertaking (PCBU) under the model Australian legislation.
The obligation to notify may even occur if no-one is injured in certain circumstances.
Legislative Framework
The Work Health & Safety Act 2011 (WHS Act) and Work Health & Safety Regulations 2011 (WHS Regulations) have been adopted in most of the Australian states and territories. Currently, Victoria is the only state that has still not adopted the model legislation and needs to be considered individually.
The object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.
What is a ‘Notifiable Incident’?
Under section 35 of the WHS Act, a notifiable incident is defined as:
- the death of a person, or
- the serious injury or illness of a person, or
- a dangerous incident.
Under section 36 of the WHS Act, a serious injury or illness of a person is one which requires the person to have certain types of treatment, including:
- immediate treatment as an in-patient in a hospital, or
- immediate treatment for the amputation of any part of the body, or
- immediate treatment for a serious head injury, or
- immediate treatment for a serious eye injury, or
- immediate treatment for a serious burn, or
- immediate treatment for the separation of skin from an underlying tissues (such as de-gloving or scalping), or
- immediate treatment for a spinal injury, or
- immediate treatment for the loss of a bodily function, or
- immediate treatment for serious lacerations, or
- medical treatment within 48 hours of exposure to a substance.
Under section 37 of the WHS Act, a dangerous incident in relation to a workplace that exposes a worker or any other person to a serious risk to a person’s health or safety emanating from an immediate or imminent exposure to:
- an uncontrolled escape, spillage or leakage of a substance, or
- an uncontrolled implosion, explosion or fire, or
- an uncontrolled escape of gas or steam, or
- an uncontrolled escape of a pressurised substance, or
- electrical shock, or
- the fall or release from a height of any plant, substance or thing, or
- the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with the regulations, or
- the collapse or partial collapse of a structure, or
- the collapse or failure of an excavation or of any shoring supporting an excavation, or
- the inrush of water, mud or gas in workings, in an underground excavation or tunnel, or
- the interruption of the main system of ventilation in an underground excavation or tunnel, or
- any other event prescribed by the regulations.
Failure to Notify
Penalties can apply in situations where the Safety Regulator is not notified of a notifiable incident. The maximum penalty for such an offence is determined by the maximum number of penalty units and the value of a penalty unit in each State, for example, in NSW the maximum penalty unit for a failure to notify for an individual is 115 penalty units (115 x $110) or $12,650 and for a company is 575 penalty units (575 x $110) or $63,250.
In a recent case, a Queensland company, Cattletrans Pty Ltd trading as Robertson’s Transport, was fined $5,000 plus $1,100 in costs after pleading guilty to breaching section 38 of the Queensland WHS Act (s38 – duty to notify of notifiable incidents).
The matter was held at Toowoomba Magistrates Court where it was heard that in March 2019, one of Cattletrans’ workers who had transported a broken-down vehicle on a tilt tray truck to a site for repairs had fallen from the tray, striking his head on the ground below. The worker was subsequently hospitalised for seven days with a fractured skull.
The workers colleague who was also present had reported the incident to the Cattletrans’ director on the day that it occurred, but Workplace Health and Safety Queensland did not become aware of the incident until June 2019 when it was contacted by the injured worker.
Magistrate Ryan held that Cattletrans had not been aware of its notification’s obligations, with its director being an older man who “could be considered ‘old-school’”. Magistrate Ryan indicated that while ignorance of the law was not an excuse for a breach, it could be considered to an extent when determining the appropriate fine.
Seek Urgent Advice
Businesses are strongly encouraged to seek urgent advice in the event of a work-related incident or injury and if the matter is reportable the Regulator. Generally once reported, if serious, the Regulator may commence an investigation.
***Assisted by Grace Tully***
Book now with Antonia Tahan from the Workplace Law Team for an initial free consultation.
