GUIDE TO WORK HEALTH AND SAFETY INCIDENT NOTIFICATION

Transcription

1 GUIDE TO WORK HEALTH AND SAFETY INCIDENT NOTIFICATION How to decide whether you need to notify Comcare of an injury, illness or dangerous incident under the requirements of the Work Health and Safety Act 2011 (Cth)

2 DISCLAIMER This guide is a general overview. It is not a substitute for independent professional advice. Please contact an appropriate qualified professional person before relying on the contents of this publication. Comcare (and the Safety, Rehabilitation and Compensation Commission) its officers, servants and agents expressly disclaim liability and responsibility in respect to, and accept no responsibility for, the consequences of anything done or omitted to be done to any person in relying wholly or partly on this publication, including but not limited to the results of any action taken on the basis of the information in this publication and the accuracy, reliability, currency or completeness of any material contained in it. Commonwealth of Australia 2011 This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process without prior permission from Comcare. ISBN First published October 2001 Second edition September 2008 This edition <insert edition date here> Comcare GPO Box 9905 Canberra ACT 2601 Phone

3 TABLE OF CONTENTS INTRODUCTION 5 Legislative framework 5 Where to find definitions of terms within the legislation 6 Where to find explanations of concepts that are relevant to incidents 6 INCIDENT NOTIFICATION PROCESS 7 What sort of incidents do I need to tell Comcare about? 7 Incident notification and inspections 7 When is an injury or illness serious? 8 What is a dangerous incident? 8 Who is responsible for notifying? 9 How do I notify? 10 What information do I need to provide to Comcare when I notify? 10 Preserving the site can work continue where the incident occurred? 11 Upgrading notifications 12 Do I need to keep a record of the incident? 12 CONTACT DETAILS 13 INTERPRETATION OF TERMS USED IN THE LEGISLATION 14 Interpretation of words used in section 36 what is a serious injury or illness 15 What does immediate treatment mean? 15 What does serious mean? 15 What does medical treatment mean? 15 Examples of a serious injury or illness 15 Interpretation of words used in section 37 what is a dangerous incident 16 What does workplace mean? 16 What does immediate mean? 16 What does imminent mean? 16

4 What does uncontrolled mean? 16 What does escape mean? 16 What does substance mean? 16 What does electric shock mean? 16 What does required to be authorised for use in accordance with the regulations mean? 17 Interpretation of words used in section 38 duty to notify of notifiable incidents 17 What does conduct of the business or undertaking mean? 17 What does immediately mean in terms of notification timeframes (section 38)? 17 FREQUENTLY ASKED QUESTIONS 18 Does incident notification relate to workers compensation? 18 Is suicide notifiable under WHS Laws? 18 Is attempted suicide notifiable under WHS Laws? 18 Is bullying notifiable under WHS Laws? 18 Do I need to notify incidents that relate to contractors? 19 I am based overseas and a notifiable incident has occurred. Is this notifiable? 19 What does a person with management or control of a workplace mean? 19 Can I delegate or contract out responsibility to notify incidents? 20 Can I wait until I have conducted a full investigation into the incident before notifying? 20 What does resaonably practicable in relation to ensuring health and safety mean? 20 Do I still have 24hrs to notify Comcare of incidents other than a death? 21 Do I need to notify near misses? 21 Do I need to notify abscences greather than 30 days or shifts? 21 Where can I view the relevant legislation? 21 NOTIFICATION SCENARIOS 23 SAMPLE NOTIFICATION FORM 28 NOTIFICATION DECISION FLOWCHART 30

5 5 INTRODUCTION Has an injury, illness or dangerous incident occurred at your workplace? If so, you may be legally required to notify Comcare about what has happened. This guide provides practical assistance and aims to help you understand your notification obligations under the Work Health and Safety Act (Cth) (WHS Act) 2011 and how you can comply with them. The information outlined in this document is the view of Comcare and is based on Comcare s interpretation of the legislation as at <insert date that Act is enacted here> LEGISLATIVE FRAMEWORK The WHS Act provides the legal framework for regulating the health and safety of workers and workplaces. The definition of worker has been broadened to include persons that carry out work in any capacity for a person conducting a business or undertaking (PCBU) and is aimed at ensuring that the WHS Act coverage extends beyond the traditional employer/employee relationship to include new and evolving work arrangements and risks. Refer to Section 7 of the WHS Act for the definition of worker. Other parts of the framework include: > Draft Model Work Health and Safety Regulations. > Draft Model Codes of Practice. > Comcare guidance material. The relevant legislation can be found at

6 6 WHERE TO FIND DEFINITIONS OF TERMS WITHIN THE LEGISLATION Definitions WHS Act Dangerous incident Section 37 Due diligence Section 27 Notifiable incident Section 35 Officer Section 4 Person Conducting Business or Undertaking (PCBU) Persons with management or control of a workplace Section 5 Section 20 Plant Section 4 Reasonably practicable Section 18 Serious injury or illness Section 36 Worker Section 7 Workplace Section 8 WHERE TO FIND EXPLANATIONS OF CONCEPTS THAT ARE RELEVANT TO INCIDENTS Relevant Legislation Notification of serious injuries or illnesses and dangerous incidents WHS Act Section 35, 36,37 Notification timeframes Section 38 (1) Preserving incident sites Section 39 Records to be kept Section 38 (7)

7 7 7 INCIDENT NOTIFICATION PROCESS WHAT SORT OF INCIDENTS DO I NEED TO TELL COMCARE ABOUT? The WHS Act sets out what sort of incidents are notifiable to Comcare. Under Section 35 an incident is notifiable if it arises out of the conduct of a business or undertaking and results in the death, serious injury or serious illness of a person or involves a dangerous incident. Items in bold are defined later in this document. INCIDENT NOTIFICATION AND INSPECTIONS Notification of an incident is a statutory obligation outlined in Section 35 of the WHS Act. Timely notification of incidents assists to inform Comcare about current and potential health and safety issues which may give rise to a decision to conduct an inspection. PCBU s should note, however, that Comcare s decision to conduct any inspection is governed by the WHS Act, and is not necessarily connected to incident notifications received as a statutory obligation under the WHS Act. If you would like to know more about inspection procedures, please see Comcare s regulation policy under the Laws and Regulation tab and follow the link to OHS Enforcement on the Comcare website.

8 8 WHEN IS AN INJURY OR ILLNESS SERIOUS? Section 36 of the WHS Act sets out that a serious injury or illness of a person is an injury or illness requiring the person to have: > immediate treatment as an in-patient in a hospital > immediate treatment for the amputation of any part of his or her body a serious head injury a serious eye injury a serious burn; the separation of his or her skin from an underlying tissue (such as de-gloving or scalping) a spinal injury the loss of a bodily function serious lacerations or > medical treatment within 48 hours of exposure to a substance > the following prescribed illnesses 1 any medically diagnosed infectious disease that is reliably attributable to carrying out work, including work with micro-organisms, that involves providing care or treatment to a person, that involves contact with human blood or body substances, or that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products medically diagnosed Q fever, anthrax, leptospirosis, brucellosis, Hendra virus, avian influenza or psittacosis. In the case of a serious injury or illness it does not matter whether a person actually received treatment, just that the injury or illness could reasonably be considered to warrant such treatment. The regulations may include or exclude other injuries or illnesses as serious injuries or illnesses for the purposes of section 36 of the WHS Act, however the Regulations are currently silent on this. WHAT IS A DANGEROUS INCIDENT? Section 37 of the WHS Act sets out that a dangerous incident is an 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 > an uncontrolled implosion, explosion or fire > an uncontrolled escape of gas or steam > an uncontrolled escape of a pressurised substance > electric shock > the fall or release from a height of any plant, substance or thing this includes falls into open trenches or pits > 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 > the collapse or partial collapse of a structure > the collapse or failure of an excavation or of any shoring supporting an excavation 1 What constitutes a prescribed illness is currently being discussed by HWSA further information to follow

9 9 > the inrush of water, mud or gas in workings, in an underground excavation or tunnel > the interruption of the main system of ventilation in an underground excavation or tunnel. The Regulations may include or exclude other events as being dangerous incidents for the purposes of section 37 of the WHS Act; however the Regulations are currently silent on this. WHO IS RESPONSIBLE FOR NOTIFYING? Section 38 of the WHS Act requires a PCBU to ensure notification is made to Comcare immediately after becoming aware that a notifiable incident arising from the business or undertaking has occurred. Immediate notification to Comcare of notifiable incidents is an important aspect of the WHS Act and enables Comcare to investigate serious injuries, illnesses or dangerous incidents in a timely manner. The duty to notify is not transferable, 2 and is held at all times by the relevant PCBU. 3 However, the way in which the PCBU discharges this duty may involve arranging for another entity or person 4 to submit notifications on their behalf. Any failure by that person or entity to submit a notification on behalf of the PCBU may result in liability for a breach of section 38 of the WHS Act. 2 See s14 WHS Act. 3 Multiple PCBUs may be required to notify in respect of the same safety incident in certain circumstances. 4 Either a natural person or legal person.

10 10 HOW DO I NOTIFY? The notification must be given by the fastest possible means either by telephone or in writing. Notifications may be made through a centralised reporting system and PCBU s must ensure that all workers are aware of their need to report local incidents through internal procedures that support the centralised business reporting system. All deaths must be notified by phone and followed up in writing. If you make any other notification by telephone, Comcare also requires that you provide the notification in writing within 48 hours. The options for notifying Comcare are: > by telephone on > by submitting the on-line incident notification available on and prevention/reporting_ an_injury_or_illness/incident_notification > by submitting the notification of an incident form to facsimile number WHAT INFORMATION DO I NEED TO PROVIDE TO COMCARE WHEN I NOTIFY? The WHS Act does not specify the specific information that must be included in a notification to Comcare. Comcare s Notification of an incident form has been designed to assist you to meet your reporting obligations. It can be accessed on Comcare s website via the Safety and Prevention tab and following the links to Incident Notification. A clear description of the incident with as much detail as possible will help Comcare assess whether or not the incident is notifiable and may negate the need for Comcare to contact you for further information. Where insufficient details are provided in a notification, Comcare may request that further information be provided and an inspector will contact you to advise what additional information is required. The following information has been agreed by all WHS regulators to be collected as a minimum at the point of incident notification: > nomination of the type of notifiable incident, i.e. death, serious injury or illness and dangerous incident > incident address, date and time > details that describe the specific location of the incident, eg, the specific aisle of the supermarket, section of the warehouse or the particular piece of equipment that the incident involved to assist instructions about site disturbance > description of incident > injured person s name, salutation, date of birth, address and contact number > injured person s occupation

11 11 > relationship of the injured person to the entity notifying > description of injury/illness i.e. nature of injury > initial treatment of injury/illness noting provisions of the WHS Act that identify that a serious injury or illness as requiring immediate treatment as an in-patient in a hospital and immediate treatment for serious injury/illness and medical treatment within 48 hours of exposure to a substance > where the patient has been taken for treatment (if applicable) > employer s legal and trading name > business address (if different to incident address), ABN/ACN and contact details (including telephone number and address) > action taken/intended, if any, to prevent recurrence of incident > notifier s name, salutation, contact phone number and position at workplace PRESERVING THE SITE CAN WORK CONTINUE WHERE THE INCIDENT OCCURRED? The person with management or control of a workplace at which a notifiable incident has occurred must ensure, so far as is reasonably practicable, that the site where the incident occurred is not disturbed (unless it is for a prescribed reason), until a Comcare inspector arrives at the site, or directs otherwise (whichever is earlier). The site includes any plant, substance, structure or thing associated with the notifiable incident. This duty is designed to preserve any evidence that may assist an inspector to determine the cause of the incident. For example, if the incident site is confined to a particular physical location within an office building, and no immediate risk to health and safety remains for people in other parts of that office, then the entire office would not need to be isolated (preserved) until Comcare inspectors advise otherwise. > name, phone number and position of person to contact for further information (if different to above). A sample form is provided at the back of this guide.

12 12 A prescribed reason can include one of the following circumstances to take action for an incident site to be disturbed: > to assist an injured person > to remove a deceased person > that is essential to make the site safe or to minimise the risk of a further notifiable incident DO I NEED TO KEEP A RECORD OF THE INCIDENT? Section 38 (7) of the WHS Act requires the PCBU to keep a record of each notifiable incident for at least five (5) years from the date notified to Comcare. Please refer to your organisations internal recordkeeping policy for information on maintaining records. > that is associated with a police investigation > for which an inspector or Comcare has given permission a direction that a scene may be disturbed may be given in person or by a telephone call. Contact Comcare on if the incident occurs outside of Comcare s normal operating hours and you wish to seek to disturb the incident site. UPGRADING NOTIFICATIONS Where Comcare has been notified of an incident and the PCBU receives information that changes the incident type, the PCBU must ensure Comcare is notified of those changes. For example, if a notified serious injury or illness later results in death, Comcare must be advised about the changed situation immediately after the PCBU becomes aware of the changes. This will require the PCBU to submit another incident notification form clearly identifying it as replacing an earlier notification. You should including this is the description of incident section of the form.

13 13 CONTACT DETAILS You can contact Comcare using any of the following methods. General enquiries and notifications Monday to Friday: 8:30 am to 5:00 pm AEST Phone: Fax: Online Reporting system: Website: and incidents/incident_notification Note: For after hours notifications the hotline number will provide options for you to be diverted to an on-call inspector in the appropriate Comcare regional office.

14 14 INTERPRETATION OF TERMS USED IN THE LEGISLATION

15 15 INTERPRETATION OF WORDS USED IN SECTION 36 WHAT IS A SERIOUS INJURY OR ILLNESS WHAT DOES IMMEDIATE TREATMENT MEAN? The word immediate in subsections 36 (a) and (b) denotes that an injured or ill person must receive treatment without delay. WHAT DOES SERIOUS MEAN? Under the WHS framework the term serious is not defined. As such the ordinary dictionary meaning applies, meaning giving cause for apprehension. WHAT DOES MEDICAL TREATMENT MEAN? Under the WHS framework the term medical treatment is taken to mean treatment by a medical practitioner registered under the Health Practitioner Regulation National Law Act (the National Law) EXAMPLES OF A SERIOUS INJURY OR ILLNESS i) the amputation of any part of the body ii) a serious head injury such as a fractured skull, loss of consciousness, blood clot or bleeding in brain, damage to the skull to the extent that it is likely to affect organ/face function; It does not relate to a bruise or minor abrasion or laceration to the skin. It does include temporary or permanent amnesia iii) A serious eye injury that results in, or is likely to result in, the loss of the eye or total or partial loss of vision; an injury that involves an object penetrating the eye (eg, metal fragment, wood chip); exposure of the eye to a substance for which the risk phrase of the relevant material safety data sheet or label states risk of serious eye damage, ie, notification is not required where the risk phrase states irritating to the eye iv) a serious burn is a burn that requires more treatment than washing the wound, applying an ice pack and a dressing, such that it requires intensive care and/or compression garment and/or a skin graft v) the separation of skin from an underlying tissue such that tendon, bone or muscles are exposed (de-gloving or scalping) vi) a spinal injury is an injury to the cervical, thoracic, lumbar or sacral vertebrae. It includes the associated soft tissues such as muscles, ligaments, discs and nerves (including the spinal cord). It is notifiable if the injury is likely to result in the person having more than four consecutive days off work. vii) the loss of a bodily function includes such things as loss of consciousness, loss of movement of a limb or loss of the sense of smell, taste, sight or hearing or loss of function of an internal organ viii) serious lacerations that cause muscle, tendon, nerve or blood vessel damage, deep and/or extensive cuts, tears of wounds to the flesh or tissues (this may include stitching to prevent loss of blood and/or other treatment t prevent loss of

16 16 bodily function and/or infection) ix) any medically diagnosed infectious disease that is reliably attributable to carrying out work, including work with microorganisms, that involves providing care or treatment to a person, that involves contact with human blood or body substances, or that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products x) medically diagnosed Q fever, anthrax, leptospirosis, brucellosis, Hendra virus, avian influenza or psittacosis. INTERPRETATION OF WORDS USED IN SECTION 37 WHAT IS A DANGEROUS INCIDENT WHAT DOES WORKPLACE MEAN? The full definition of workplace can be found in section 8 of the WHS Act. A workplace is taken to mean a place where work is carried out for a PCBU and includes any place a worker goes, or is likely to be, while at work. WHAT DOES IMMEDIATE MEAN? occur at any moment. WHAT DOES UNCONTROLLED MEAN? Under the WHS framework the term uncontrolled is not defined. As such the ordinary dictionary meaning applies, meaning unrestrained. WHAT DOES ESCAPE MEAN? Under the WHS framework the term escape is not defined. As such the ordinary dictionary meaning applies, meaning leakage. WHAT DOES SUBSTANCE MEAN? Under the WHS Act the term substance is defined as any natural or artificial substance, whether in the form of a solid, liquid, gas or vapour. WHAT DOES ELECTRIC SHOCK MEAN? Under the WHS framework the term electric shock is not defined. As such the ordinary dictionary meaning applies, meaning the Under the WHS framework the term immediate is not defined. As such the ordinary dictionary meaning applies, meaning happening or done without delay. WHAT DOES IMMINENT MEAN? Under the WHS framework the term imminent is not defined. As such the ordinary dictionary meaning applies, meaning likely to

17 17 effect of the passage of an electric current (or flow of electricity) through the body. WHAT DOES REQUIRED TO BE AUTHORISED FOR USE IN ACCORDANCE WITH THE REGULATIONS MEAN? An authorisation includes such things as licenses, permits and registrations as a regulatory tool to control activities that are of high risk and requires a person to demonstrate competency or a specific standard of safety. Refer to schedules 3, 4 and 5 of the Regulations. Forklifts are included as they require a licensed to operate under the Regulations. INTERPRETATION OF WORDS USED IN SECTION 38 DUTY TO NOTIFY OF NOTIFIABLE INCIDENTS WHAT DOES CONDUCT OF THE BUSINESS OR UNDERTAKING MEAN? Under the WHS framework the term conduct of the business or undertaking is not defined in respect of PCBUs actual `day-today activities. However generally it refers to business activities or work undertaken in the course of the business. When it comes to notifying incidents there needs to be a causal connection between the incident and the business or undertaking. That is, has the business activities, in some way, contributed to the incident occurring. WHAT DOES IMMEDIATELY MEAN IN TERMS OF NOTIFICATION TIMEFRAMES (SECTION 38)? The timeframe for notifying Comcare of notifiable incidents under the WHS Act are no longer prescribed. Section 38 of the WHS Act requires a PCBU to ensure Comcare is notified immediately after becoming aware that a notifiable incident arising from the conduct of the business or undertaking has occurred meaning that there must be no delay between the PCBU becoming aware of the incident and the submission of a notification to Comcare. It is considered that a PCBU has become aware of the occurrence of a notifiable incident at the time that any of their employees, agents or officers become aware. For example, if a worker suffers a serious injury and notifies their immediate supervisor then, at this point, it is considered that the PCBU is aware of the incident and internal notifications procedures should be set in motion. In Australia, a statutory requirement to take action immediately has been interpreted Perfect v NT, NT Supreme Court (1992) 107 FLR 428) as requiring action as immediately as the circumstances permit. It should also be noted that the context of the situation will be relevant when interpreting the meaning of immediately.

18 18 FREQUENTLY ASKED QUESTIONS DOES INCIDENT NOTIFICATION RELATE TO WORKERS COMPENSATION? No. Notification of an incident under the WHS Act is separate to and distinct from making a claim for workers compensation. In some situations an incident giving rise to a notification may also result in a worker s compensation claim; however the lodgment of a claim is separate to WHS notification. PCBU s must ensure notification of any incidents that meets the notification criteria whether or not a claim for compensation may be made. IS SUICIDE NOTIFIABLE UNDER WHS LAWS? Suicide may be notifiable under WHS laws where it falls within Section 35 (a) of the WHS Act and if there is evidence to suggest a causal connection between the conduct of the PCBU s business or undertaking, and the suicide of the person. IS ATTEMPTED SUICIDE NOTIFIABLE UNDER WHS LAWS? Attempted suicide may be notifiable under WHS laws where it falls within Section 36 (a) of the WHS Act and if there is evidence to suggest a causal connection between the conduct of the PCBU s business or undertaking, and the attempted suicide of the person. IS BULLYING NOTIFIABLE UNDER WHS LAWS? Workplace bullying 5 is a work health and safety (WHS) issue that can cause physical or psychological injury (or both) to the victim. If a bullying incident meets the notification criteria in section 36(a) of the WHS Act, that is they needed immediate treatment as an in-patient, the PCBU must notify Comcare. 5 For a more detailed description of bullying see the DRAFT Code of Practice on Preventing and Responding to Workplace Bullying (September 2011).

19 19 DO I NEED TO NOTIFY INCIDENTS THAT RELATE TO CONTRACTORS? Yes. The definition of worker has been broadened to include persons that carry out work in any capacity for a PCBU, including contractors. Refer to section 7 of the WHS Act for a comprehensive list of persons considered to be workers. An incident resulting in a death, serious injury or illness or a dangerous incident involving any contractor must be notified if it has arisen out of the conduct of the PCBU s business or undertaking. It is important to note that notifiable incidents involving state based contractors working as contractors for a Commonwealth entity, such as the Department of Defence, Australian Federal Police etc, may require dual notification by both the Commonwealth entity and the worker s PCBU (to the relevant state regulator) WHAT DOES A PERSON WITH MANAGEMENT OR CONTROL OF A WORKPLACE MEAN? Section 20 of the WHS Act states that a: person with management or control of a workplace is a person conducting a business or undertaking to the extent that the business or undertaking involves the management or control of a workplace, either in whole or part. Who is deemed to have management or control of a workplace will vary between organisations however in most cases will be considered a person in a senior management or supervisory role. Persons with management or control of a workplace have a duty to ensure the health and safety of any person at the workplace so far as is reasonably practicable. Refer to the below FAQ on the meaning of reasonably practicable for further information. I AM BASED OVERSEAS AND A NOTIFIABLE INCIDENT HAS OCCURRED. IS THIS NOTIFIABLE? Yes. The Commonwealth, Public Authorities and Non- Commonwealth licensees will owe the same duties of care to overseas workers as they do to workers within Australia, subject to the qualifier of what is reasonably practicable. Comcare will have the ability to investigate suspected contravention of WHS laws occurring outside Australia.

20 20 CAN I DELEGATE OR CONTRACT OUT RESPONSIBILITY TO NOTIFY INCIDENTS? The obligation to notify Comcare for deaths, serious injuries or illnesses that arise out of work and dangerous incidents that occur at a workplace rests with the PCBU. A PCBU must ensure Comcare is notified immediately once they become aware of a notifiable incident by the fastest means possible. The duty to notify is not transferable, 6 and is held at all times by the relevant PCBU. 7 However, the manner or procedure in which the PCBU can discharge this duty may involve arranging for another entity or person 8 to submit notifications on their behalf. Having clear, effective and workable reporting processes will enable the PCBU to meet their obligations to notify Comcare within the requirements of the WHS laws. A PCBU must ensure that all workers are aware of their need to report incidents through the internal policies and procedures and not disturb an incident site until an inspector attends the site or advises otherwise If workers are seconded or working at a contractors workplace, arrangements should be made to ensure the PCBU is promptly notified of relevant incidents. CAN I WAIT UNTIL I HAVE CONDUCTED A FULL INVESTIGATION INTO THE INCIDENT BEFORE NOTIFYING? No. Notifications must be made immediately. Comcare acknowledges that all the relevant information may not be immediately available, but you must still notify. Once further information is received you can contact Comcare to add to or alter information pertaining to the incident you have already notified. Further information could include police reports, medical reports, legal responses and investigation outcomes. WHAT DOES RESAONABLY PRACTICABLE IN RELATION TO ENSURING HEALTH AND SAFETY MEAN? The term reasonably practicable is generally accepted as an appropriate standard for duty holders to meet in respect of their WHS duties in most Australian jurisdictions. Duty holders must meet their health and safety duties so far as reasonably practicable. The term reasonably practicable is defined in the WHS Act (Section 18) to mean that which is, or was reasonably able to be done taking into account and weighing up all relevant matters including: > the likelihood of the relevant hazards or risk occurring > the degree of harm that might result from the hazard or risk > what the person knows about the hazard or risk and the ways of eliminating or minimising the risk > the availability and suitability of ways to eliminate or minimise the risk. 6 See s14 WHS Act. 7 Multiple PCBUs may be required to notify in respect of the same safety incident in certain circumstances. 8 Either a natural person or legal person.

21 21 After assessing the extent of the risk and the ways to eliminate or minimise the risk, duty holders must also consider whether the cost is grossly disproportionate to the risk. DO I STILL HAVE 24HRS TO NOTIFY COMCARE OF INCIDENTS OTHER THAN A DEATH? No. The WHS Act requires a PCBU to ensure notification immediately after becoming aware that a notifiable incident has occurred (refer to the meaning of immediately Section 38 of the WHS Act). DO I NEED TO NOTIFY NEAR MISSES? Generally no, however if it is an incident type listed in Section 37 (a) (l) of the WHS Act then the incident will need to be notified. DO I NEED TO NOTIFY ABSCENCES GREATHER THAN 30 DAYS OR SHIFTS? No. Under the WHS framework notification of absences greater than 30 days or shifts (previously referred to as incapacity) are no longer required to be made to Comcare. WHERE CAN I VIEW THE RELEVANT LEGISLATION?

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23 23 NOTIFICATION SCENARIOS The following scenarios will assist with understanding the decision points for identifying whether or not an incident is notifiable under Section 35 of the Work Health and Safety Act (Cth) (WHS Act) Scenario 1: Serious injury or illness (physical injury) A worker is assaulted in a public car park adjacent to her workplace while walking back to work after a client meeting. The PCBU s policy requires that the worker wear her uniform and name badge which clearly identified her as a worker at all times while at work. During the attack, the assailant stated loudly that he was upset about actions taken by the PCBU that he said had affected him negatively. As a result of the attack the worker suffered serious lacerations to her face and hands and was subsequently taken to hospital in an ambulance. The worker was treated for her injuries as an in-patient in hospital and required stitches for a deep cut to her forehead. She was provided a medical certificate for one week off work.

24 24 Question Did the incident arise out of the conduct of the business or under taking? Did the incident cause death? Did the incident cause serious injury or illness? Is it notifiable? Decision points Yes the incident arose out of the conduct of the business or undertaking as the worker was apparently assaulted because she was a worker of a Commonwealth organisation. No. Yes the worker received serious lacerations to her hands and face as a result of the attack and treatment, including stitches, at hospital as an inpatient. Yes this incident is notifiable as a serious injury or illness. Scenario 2: Serious injury or illness (volunteer) While working as a volunteer at a Commonwealth organisation s annual conference, a university student suffers serious burns to her hands and arms while filling an urn with boiling water. The volunteer was preparing the tea/coffee making facilities prior to the arrival of conference guests when the incident occurred. The volunteer was attended to at the scene by a first aid officer, then by ambulance officers who transported the volunteer to hospital where she received immediate treatment for her injuries. The volunteer remained in hospital for several hours for observation but was not admitted. Question Did the incident arise out of the conduct of the business or under taking? Did the incident cause death? Did the incident cause serious injury or illness? Is it notifiable? Decision points Yes the incident arose out of the conduct of the business or undertaking as the university student suffered serious burns while carrying out work as a volunteer for a Commonwealth organisation. (Volunteers are considered to be workers as defined in Section 7 of the WHS Act.) No. Yes as a result of the incident the volunteer required immediate medical treatment for her injuries at hospital (as defined in section 36). Yes this incident is notifiable as a serious injury or illness (refer to section 36).

25 25 Scenario 3: Dangerous incident A worker is involved in an incident whereby a forklift is overturned after colliding with a stationary delivery van. The worker is shaken, receives minor cuts to his hands but is otherwise unharmed. He is able to exit the forklift cabin with assistance from nearby workers. The forklift was not carrying a load at the time of the collision and, following assessment of the incident site, the supervisor determines that there is no further risk posed to the health or safety of persons at the worksite. The worker is taken to hospital by his supervisor and is treated for his injuries in the causality department. He is able to return to work the following day and is provided light duties for five days. Question Did an incident occur? Did the incident arise out of the conduct of the business or under taking? Did the incident cause death? Did the incident cause serious injury or illness? Was it a dangerous incident? Is it notifiable? Decision points Yes. Yes the incident arose out of the conduct of the business or undertaking as the worker was using the forklift to carry out his duties at the workplace. No. No although the injury required medical treatment, the worker did not require immediate treatment as an in-patient in hospital or treatment for an injury or illness (as defined in Section 36). Yes a forklift is required to be authorized for use (license to operate) under the regulations, and the overturning of the forklift at the workplace caused the worker to be exposed to a serious risk to his health or safety (refer to section 37). Yes the incident is notifiable as a dangerous incident.

26 26 Scenario 4: Non-notifiable incident A staff member sitting at his desk complains of chest pain and pain radiating down his left arm. The first-aid officer attends and the worker is sent to hospital by ambulance. He is diagnosed as having suffered a heart attack and has two months off work. There were no previous occurrences of chest pain and the staff member reported that he was not feeling under pressure in relation to his work. Question Did the incident arise out of the conduct of the business or undertaking? Did the incident cause death? Did the incident cause serious injury or illness? Was it a dangerous incident? Is it notifiable? Decision points No there is no information available to link the heart attack to the conduct of the business or undertaking. No. No although the heart attack required treatment as an inpatient in hospital it could not be demonstrated that it was caused because of work. No although the heart attack occurred it was not caused as a result of an immediate or imminent exposure to a serious health or safety risk (as defined in Section 37 of the WHS Act). No this incident is not notifiable as it did not arise out of the conduct of the business or undertaking and did not result in the occurrence of a serious injury or illness or dangerous incident.

27 27 Scenario 5: Non-notifiable incident A staff member is traveling to conduct a home visit, which is part of her normal duties. She is driving a vehicle provided by the PCBU. While stopped at traffic lights, a truck collides with the back of her vehicle. The worker is shaken and sustains minor bruises but is otherwise unharmed. She consults her GP the next day and is diagnosed as having a whiplash injury resulting in three days off work. Question Did the incident arise out of the conduct of the business or undertaking? Did the incident cause death? Did the incident cause serious injury or illness? Was it a dangerous incident? Is it notifiable? Decision points Yes the incident occurred while the worker was carrying out her normal duties at a workplace for a business or undertaking (i.e. a vehicle is included as a place under Section 8 of the WHS Act). No. No although the worker sustained minor bruises as a result of the incident she did not require immediate treatment as an inpatient in hospital or treatment for an injury or illness as defined in Section 36 of the WHS Act. No although an incident occurred in relation to a workplace it did not result in the worker being exposed to an immediate or imminent serious health or safety risk as defined in Section 37 of the WHS Act. No this incident is not notifiable. Even though an incident has occurred at a workplace, the circumstances do not meet the requirements as stated in Section 36 (serious injury or illness) and Section 37 (dangerous incident) of the WHS Act.

28 28 SAMPLE NOTIFICATION FORM INCIDENT NOTIFICATION FORM NOTIFIER S DETAILS Full name Mr/Mrs/Miss/Ms Contact telephone number Position at workplace Is this the person [Regulator] should contact for further information? Yes No If no, please provide the name, position title and telephone number of the appropriate contact Full name Contact telephone number Position title INCIDENT DETAILS Is the incident being notified as a result of a: Death Serious injury or illness Dangerous incident If serious injury or illness or dangerous incident, describe type: Date of incident Incident address / / Time of incident am am Describe the specific location of the incident: For example: > aisle 3 > plant operation room > tower crane on the Elizabeth Street entrance side of the site. Description of the incident GPO BOX 9905 CANBERRA COMCARE.GOV.AU 1

29 29 INJURED PERSON S INJURY AND TREATMENT DETAILS (NOT REQUIRED FOR DANGEROUS INCIDENTS) Full name Mr/Mrs/Miss/Ms Date of incident Residential address Occupation / / Contact telephone number Reationship to the entity notifying: Worker Self- employed Member of the public Labour hire worker Group training apprentice/trainee Description of injury/illness, that is nature of the injury/illness Did the person receive treatment following the injury/illness: Yes No If yes, describe treatment received Where was the injured person taken for treatment (if applicable): DETAILS OF BUSINESS OR UNDERTAKING NOTIFYING OF THE INCIDENT Legal name of business Business address ABN/ACN: Telephone contact number working hours Telephone contact number working hours address Describe what action was taken immediately following the incident to prevent recurrence Describe any longer term action proposed to prevent a recurrence 2

30 30 NOTIFICATION DECISION FLOWCHART Not notifiable to Comcare (may be notifiable to another regulator) Not notifiable Notifiable Death No No Yes Is the notifying PCBU a PCBU for the purposes of the WHS Act? Yes Did the incident arise out of the conduct of the PCBU s business or undertaking? Yes Did the incident cause the death of any person? No Notifiable Serious Injury or illness Yes Did the incident cause serious injury or illness to a person requiring the person to have: a) immediate treatment as an in-patient in a hospital b) immediate treatment (refer to definition of serious injury or illness section 36) c) medical treatment within 48 hours of exposure to a substance. Notifiable Dangerous Incident No No Did the incident result in a dangerous incident? (refer to definition of dangerous incident section 37) No Not notifiable.

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32 For further information contact Comcare GPO Box 9905 Canberra ACT 2601 Telephone Internet OHS43 November COMCARE.GOV.AU