This year, changes to the Work Health Safety Act 2020 (WA) (the Act) commenced, providing for new and refined obligations for employers and workers.
In this article, we provide a concise breakdown of the requirements for reporting a notifiable incident under the Act.
Who has a duty to report a notifiable incident?
A person who conducts a business or undertaking (PCBU) has the duty to report a notifiable incident.
What is a notifiable incident?
A notifiable incident occurs when there is:
a) a death of a person;
b) a serious injury or illness of a person; or
c) a dangerous incident
that has arisen out of the conduct of the business or undertaking.
What does serious injury or illness mean?
A serious injury means an injury or illness:
a) that requires the person to have immediate treatment as in-patient in a hospital; or
b) that requires the person to have immediate treatment for:
- the amputation of any part of the person’s body; or
- a serious head injury; or
- a serious eye injury; or
- a serious burn; or
- the separation of the person’s skin from an underlying tissue (such as degloving or scalping); or
- a spinal injury; or
- the loss of a bodily function; or
- serious lacerations;
c) that requires the person to have treatment by a medical practitioner within 48 hours of exposure to a substance; or
d) that occurs in a remote location and requires the person to be transferred urgently to a medical facility for treatment; or
e) that, in the opinion of a medical practitioner, is likely to prevent the person from being able to do the person’s normal work for at least 10 days after the day on which the injury or illness occurs.**
It is important to note that the test for whether a serious injury or illness occurs is an objective one. It doesn’t matter whether a person attends treatment, only if the injury or illness would warrant treatment.
We recommend that employers pay close attention to e) as it may include circumstances such as a worker taking stress leave.
If a person is not able to attend work for at least 10 days, we suggest that employers ensure that they examine medical certificates carefully and seek further information if they are unsure whether to notify WorkSafe.
** Please note that list is not exhaustive, and this information is general information only should not be taken as legal advice.
What is a dangerous incident?
A dangerous incident is an incident occurring in the workplace that exposes a worker or any other person to a serious risk to a person’s health or safety arising from an immediate or imminent exposure to —
a) an uncontrolled escape, spillage or leakage of a substance; or
b) an uncontrolled implosion, explosion or fire; or
c) an uncontrolled escape of gas or steam; or
d) an uncontrolled escape of a pressurised substance; or
e) electric shock; or
f) the fall or release from a height of any plant, substance or thing; or
g) 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
h) the collapse or partial collapse of a structure; or
i) the collapse or failure of an excavation or of any shoring supporting an excavation; or
j) the inrush of water, mud or gas in workings, in an underground excavation or tunnel; or
k) the interruption of the main system of ventilation in an underground excavation or tunnel. **
** Please note that list is not exhaustive, and this information is general information only and should not be taken to be read as legal advice.
When is a PCBU required to notify a notifiable incident?
A PCBU must notify WorkSafe immediately after becoming aware that a notifiable incident has occurred and has arisen out of the conduct of the business or undertaking.
How does a PCBU notify WorkSafe?
A PCBU can call 1800 678 198 for 24-hour serious incident and fatality reporting or it can report the incident to WorkSafe in writing.
Written notification can be submitted online by completing the prescribed online reporting form, accessible at: https://wise.commerce.wa.gov.au/wise-online/noi.
Does a PCBU have to keep a record of the notifiable incident?
A PCBU must keep a record of each notifiable incident for at least 5 years from the date when the incident occurs.
Are there any other obligations?
The person with management or control of the workplace at which the notifiable incident occurs has a duty to preserve the site. The person with management or control of the workplace must also ensure that so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time as directed by an inspector.
Preserving a site does not prevent the workplace from:
- assisting an injured person; or
- removing a deceased person; or
- taking any action that is essential to make the site safe or to minimise the risk of a further notifiable incident; or
- taking any action that is associated with a police investigation; or
- taking any action for which an inspector or the regulator has given permission.
If the incident is reported, will it be investigated?
WorkSafe does not investigate every incident that is reported to them. In determining which reports of incidents they investigate, they will consider the following factors:
- the severity and scale of the potential or actual harm;
- the seriousness of any potential breach of the Act;
- the duty holder’s compliance history including prior convictions and notices issued;
- whether the duty holder was licensed or authorised to undertake certain types of work;
- strategic enforcement priorities;
- the practicality of achieving results; and
- the wider relevance of the event, including matters of significant community concern.
What should a PCBU do next?
If a PCBU is unsure if a notifiable incident has occurred, but it suspects it may have, out of an abundance of caution, a PCBU should seek legal assistance immediately to ensure they are not in breach of their reporting obligations.
If you have any questions after reading this article or require any legal advice, please call us on 08 9288 4000.
The information provided in this article does not constitute legal advice. We note in particular, the definitions of serious injury and illness and dangerous incident that we have provided are not exhaustive and may extend to circumstances not considered by this article.