People are injured at work every day and serious workplace incidents can occur anywhere at any time. If the phone rings with the news that an employee, contractor or visitor to a site has been seriously injured or killed on the job, would you know what to do? And are you prepared?
Employers have statutory obligations to notify the relevant authority of an incident in their State or Territory. The rules vary slightly between the states.
Is it a notifiable incident?
Notifiable incidents are generally dangerous occurrences at work that cause death, serious injury or a risk of death or serious injury. It can also include near misses or incidents that have the potential to expose a person or individuals to an immediate risk to their health or safety. Sometimes it is not obvious whether the incident is notifiable or not and it is best to seek advice.
The following can be used as a simple guide:
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Victoria:
incidents resulting in death, serious injury or exposure to an immediate health and safety risk
New South Wales:
incidents resulting in or presenting a risk of death or serious injury
Queensland:
serious bodily injury, work caused illness or dangerous event
South Australia:
work related injuries causing death, exposure to a substance at work or dangerous occurrence
Western Australia:
all deaths and certain types of injury and disease in connection with work must be reported
Tasmania:
incident in which a person is killed or suffers serious bodily injury or illness at work and dangerous incidents.
Northern Territory:
work related accident or incident creating the risk of a work related accident
ACT:
death, serious work-related injury or illness and dangerous occurrences.
Who, when & how do I notify?
In most states there is a requirement to notify the regulator either immediately or as soon as practicable and then again in writing within a specified period. A failure to notify the regulator within the timeframe may expose you to potential penalties. You should keep a copy of the report for your records.
Incident Notification forms can be printed off the internet & faxed or in some states entered on-line. Employers will be penalised for a failure to notify the regulators of incidents. This may include fines, enforceable undertakings or warning letters.
Victoria: WorkSafe - 132 360
- Immediate telephone notification; and
- Complete an Incident Notification Form within 48 hours of the incident.
New South Wales: WorkCover - 131 050
- Immediate telephone notification; and
- Complete an Incident Notification Form within 7 days of the incident
- Maximum penalty for failure to notify:
Individuals: $22,000 - $41,250 (previous offenders)
Corporations: $55,000 - $82,500 (previous offenders)
Queensland: Workplace Health and Safety - 1300 369 915
- Complete an Incident Notification Form within 24 hours of the incident.
- If the incident involves a death, immediate telephone notification is required
- Maximum Penalty for failure to notify:
Individuals: $2,000
Corporations: $10,000
South Australia: Safework - 1800 777 209
- Telephone notification as soon as practicable; and
- Complete a Notification of Dangerous Occurrences Form within 24 hours after the incident
Western Australia: WorkSafe - 1800 678 198
- Complete a Notification of Injury Form or Notification of Disease Form
- Notification is accepted in person, by telephone, email, in writing or by fax
Tasmania: Workplace Standards - 1300 366 322
- Incident must be reported by the 'quickest possible means'; and
- Complete an Accident/Incident Reporting Form within 48 hours of the incident
Northern Territory: WorkSafe - 1800 019 115
- Telephone notification as soon as practicable; and
- Complete an Incident Notification Form within 48 hours of the incident
ACT: WorkCover - 6205 0200
- Telephone notification as soon as practicable; and
- Complete an Injury and Dangerous Occurrence Report Form within 48 hours of incident
- Penalty for failure to notify:
Individuals: $10,000 or imprisonment not exceeding 12 months
Corporations: $50,000
Does the site need to be preserved?
Employers are generally required to preserve the site where the incident has occurred. Your first priority will be to ensure that the immediate area surrounding the incident is safe to approach. Once it is safe, you can begin to take immediate action to assist any injured persons and prevent any recurrence of the incident.
Where possible, it is usually a good idea to erect a barricade around the area to avoid any further injuries, and keep out curious bystanders. In most states sites need to be preserved until directed by the regulator in NSW this is for a minimum 36 hours, whereas in the ACT for a reasonable period. However the position differs in WA and NT where preservation is respectively required only upon the direction of the regulator and upon the establishment of a restricted site.
Victoria: Preserve site until directed otherwise by an inspector
New South Wales: Site preserved for a minimum 36 hours after notification to WorkCover or as directed by WorkCover.
Queensland: Site must be preserved
South Australia: Site where the injury occurred must not be altered, reused or repaired without the permission of an inspector.
Western Australia: Preserve site where incident involves dangerous goods and an inspector has established a restricted site.
Tasmania: Site must be preserved until inspector arrives at the site or directs.
Northern Territory: Site is to be preserved only if directed by WorkSafe
ACT: Site is to be preserved for a reasonable period as notified by Chief Executive of the Authority
A failure to preserve the scene can result in a financial penalty.
Who will investigate?
After an incident occurs, several types of investigations may be conducted. Where there is a serious injury, near miss or immediate risk, the regulator will conduct an investigation. If there is a death, the police will also investigate on behalf of the Coroner.
In its investigations, the regulator, coroner and police will take statements, request documents, photographic and video evidence of the site and any other relevant evidence.
The company will also commence an internal investigation.
How can the company's legal position be protected?
A lawyer must be engaged at the earliest possible opportunity after the incident - ideally they will be present at the site at the same time as the regulator, coroner and police. This is because a lawyer is able to conduct an investigation and gather evidence, including specialist reports from experts, for the company under the protection of legal professional privilege. As such, the lawyer's internal investigations will not need to be disclosed to the regulator, although you will need to be conscious of people who have access to the information to ensure the privilege is not waived.
Is there a right to refuse to answer questions on the basis of self incrimination?
The regulator, upon conducting its investigation, will take statements from various witnesses. You need to be aware that in some states (Victoria, Queensland and ACT) you have a right to self incrimination - this means you may refuse to provide information if giving the information would incriminate that person.
However, in NSW, SA, WA, TAS and NT, self incrimination is not an excuse to refuse to provide information. However the information will not be admissible in proceedings.
It is important you are aware of these rights.
