Following a health and safety related incident in the workplace, there are several actions that employers may need to take depending on the type of incident.
Duty to notify WorkSafe Victoria
Under s 38(1) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act), employers must notify WorkSafe immediately after becoming aware that a “notifiable” incident has occurred in the workplace.
A notifiable incident is one that results in:
- a person needing medical treatment within 48 hours of being exposed to a substance
- a person requiring immediate treatment as an in-patient in a hospital
- a person requiring immediate medical treatment for injuries, including but not limited to a serious head or eye injury, amputation of any body part, separation of skin, or electric shock
Employers must also notify WorkSafe where a person in the immediate vicinity of an incident is exposed to an immediate risk to their health or safety as a result of:
- damage to any licensed or registered plant or collapse, overturning, failure or malfunction of such plant
- collapse or failure of an excavation, or shoring supporting an excavation
- collapse of a building or structure
- implosion, explosion or fire
- escape, spillage or leakage of any substance including dangerous goods
- plant, substances or objects falling from high places
- in relation to a mine:
– the overturning or collapse of any plant
– the inrush of water, mud or gas
– the interruption of the main system of ventilation
– any other event or circumstance prescribed by the Occupational Health and Safety Regulations 2017 (Vic)
Duty to provide a record
Within 48 hours of notifying WorkSafe of an incident, employers must provide WorkSafe with a written record of the incident (in an approved form). The record of the incident can be provided online.
A copy of the record must be kept by the employer for at least five years. The copy of the record must also be made available for inspection to persons listed in s 38(4) of the OHS Act, which includes, but is not limited to, an inspector or a representative of a person injured in the incident or whose health or safety was exposed to immediate risk by the incident.
Duty to preserve the incident site
Employers have an obligation to preserve the incident site until a WorkSafe inspector arrives at the site (or such other time as an inspector directs). However, the site may be disturbed for the purposes of:
- protecting the health and safety of a person
- assisting an injured person involved in the incident
- taking essential action to make the site safe or to prevent a further incident.
Prosecution and Penalties
A breach of the above duties is an offence and may result in prosecution by WorkSafe. The maximum penalties that may be imposed following a guilty verdict are:
- 1200 penalty units, in the case of a corporation; and
- 240 penalty units, in the case of a natural person (for example, a director)
The current value (for the financial year 2018/2019) of a penalty unit is $161.19. This means, that a company can be fined up to $193,428.00 for not reporting a notifiable incident to WorkSafe.
If you are not sure as to whether an incident is a notifiable incident – contact us.
If you would like advice or assistance with any of the above issues, please contact a member of our Workplace Relations team.