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 provides a basic and general overview of its subject matter only. It is not a substitute for independent legal advice and cannot be relied on as a statement of the law relating to the Work Health and Safety Act 2011 (Cth). Comcare recommends dutyholders obtain appropriate independent legal advice relevant to their particular needs and circumstances. PUBLICATION DETAILS Published by Comcare Commonwealth of Australia 2012 All material presented in this publication is provided under a Creative Commons Attribution 3.0 Australia ( org/licenses/by/3.0/au/deed.en) licence. For the avoidance of doubt, this means this licence only applies to material as set out in this document. The details of the relevant licence conditions are available on the Creative Commons website (accessible using the links provided) as is the full legal code for the CC BY 3.0 AU licence ( USE OF THE COAT OF ARMS The terms under which the Coat of Arms can be used are detailed on the It s an Honour website( coat-arms/index.cfm). CONTACT US Inquiries regarding the licence and any use of this document are welcome at: Production Services Comcare GPO Box 9905 Canberra ACT 2601 Ph: production.services@comcare.gov.au WHS029 Guide to work health and safety incident notification ISBN: First published December 2011 ABN: (Comcare) As this is the first guidance produced about incident notification requirements under the Work Health and Safety Act 2011 (Cth), Comcare would appreciate comment on its useability and usefulness. If you have any comments about improving this guidance please work.safety@comcare.gov.au 2 WHS 029

3 CONTENTS INTRODUCTION 4 LEGISLATIVE FRAMEWORK 4 WHERE TO FIND KEY CONCEPTS IN THE LEGISLATION 4 WHERE TO FIND EXPLANATIONS OF CONCEPTS THAT ARE RELEVANT TO INCIDENTS 5 INCIDENT NOTIFICATION PROCESS 5 WHAT HAS CHANGED? 5 WHAT SORT OF INCIDENTS DO I NEED TO TELL COMCARE ABOUT? 5 INCIDENT NOTIFICATION AND INSPECTIONS 5 WHO IS RESPONSIBLE FOR NOTIFYING? 5 WHEN IS AN INJURY OR ILLNESS SERIOUS? 6 WHAT IS A DANGEROUS INCIDENT? 7 HOW DO I NOTIFY? 8 WHAT INFORMATION DO I NEED TO PROVIDE TO COMCARE WHEN I NOTIFY? 8 PRESERVING THE SITE CAN WORK CONTINUE WHERE THE INCIDENT OCCURRED? 9 UPGRADING NOTIFICATIONS 10 DO I NEED TO KEEP A RECORD OF THE INCIDENT? 10 CONTACT DETAILS 10 INTERPRETATION OF TERMS USED IN THE LEGISLATION 10 INTERPRETATION OF WORDS USED IN SECTION 36 WHAT IS A SERIOUS INJURY OR ILLNESS 10 INTERPRETATION OF WORDS USED IN SECTION 37 WHAT IS A DANGEROUS INCIDENT 12 INTERPRETATION OF WORDS USED IN SECTION 38 DUTY TO NOTIFY OF NOTIFIABLE INCIDENTS 13 FREQUENTLY ASKED QUESTIONS 14 DOES INCIDENT NOTIFICATION RELATE TO WORKERS COMPENSATION? 14 IS SUICIDE NOTIFIABLE UNDER WHS LAWS? 14 IS ATTEMPTED SUICIDE NOTIFIABLE UNDER WHS LAWS? 14 IS BULLYING NOTIFIABLE UNDER WHS LAWS? 14 WHEN DO I NOTIFY A DISEASE? 14 DO I NEED TO NOTIFY INCIDENTS THAT RELATE TO CONTRACTORS? 15 I AM BASED OVERSEAS AND A NOTIFIABLE INCIDENT HAS OCCURRED. IS THIS NOTIFIABLE? 15 WHAT DOES A PERSON WITH MANAGEMENT OR CONTROL OF A WORKPLACE MEAN? 15 I AM A PCBU CAN I WAIT UNTIL I HAVE CONDUCTED A FULL INVESTIGATION INTO THE INCIDENT BEFORE NOTIFYING? 15 WHAT DOES RESAONABLY PRACTICABLE MEAN IN RELATION TO ENSURING HEALTH AND SAFETY? 16 DO I STILL HAVE 24 HRS TO NOTIFY COMCARE OF INCIDENTS OTHER THAN A DEATH? 16 DO I NEED TO NOTIFY NEAR MISSES? 16 DO I NEED TO NOTIFY ABSENCES > 30 DAYS OR SHIFTS? 16 ARE SLIPS AND TRIPS STILL NOTIFIABLE? 16 WHERE CAN I VIEW THE RELEVANT LEGISLATION? 16 NOTIFICATION SCENARIOS 17 SAMPLE NOTIFICATION FORM 20 NOTIFICATION DECISION FLOWCHART 24 3 WHS 029

4 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 2011 (Cth) (WHS Act) and how you can comply with them. 1 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) 2. This ensures 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. The WHS legislation has changed significantly compared to previous Commonwealth health and safety legislation. As the laws are harmonised across jurisdictions, the aim is to ensure that all jurisdictions have similar interpretations of the meaning of the law. In the past the Commonwealth jurisdiction has captured dangerous occurrences. This accounted for a large number of notifications. The focus of the WHS legislation has changed so that PCBUs are only required to notify Comcare of incidents that are serious/critical and dangerous in nature, rather than less serious incidents resulting from minor incidents or near misses. Refer to sections 36 and 37 of the WHS Act for more information. Further information about comparisons between the current WHS Act and the previous health and safety legislation is available on Comcare s website: Other parts of the framework include: > Commonwealth Work Health and Safety Regulations > Model Codes of Practice > Comcare guidance material. The relevant legislation can be found at WHERE TO FIND KEY CONCEPTS IN THE LEGISLATION Key concepts WHS Act Dangerous incident Section 37 Due diligence Section 27 tifiable incident Section 35 Officer Section 4 Person conducting business or undertaking (PCBU) Section 5 Persons with management or control of a workplace Section 20 Plant Section 4 Reasonably practicable Section 18 Serious injury or illness Section 36 Worker Section 7 Workplace Section 8 1 Unless otherwise indicated, references to the Work Health and Safety Act, or WHS Act, are references to the Commonwealth Work Health and Safety Act 2011, and references to sections in this publication are references to sections in that Commonwealth Act. 2 on PCBUs is also available on the Comcare website 4 WHS 029

5 WHERE TO FIND EXPLANATIONS OF CONCEPTS THAT ARE RELEVANT TO INCIDENTS Relevant legislation WHS Act tification of serious injuries or illnesses and dangerous incidents Section 35, 36,37 tification timeframes Section 38 (1) Preserving incident sites Section 39 Records to be kept Section 38 (7) INCIDENT NOTIFICATION PROCESS WHAT HAS CHANGED? Only the most serious safety incidents are intended to be notifiable. The notifications trigger requirements to preserve the incident site pending further direction from Comcare. A PCBU should still keep their own accident and hazard registers for review and analysis of accident trends. They need to be able to show Comcare how they are addressing accidents through accident investigation and causation. A hazard register also enables the PCBU to identify trends that could be addressed to avoid accidents occurring. WHAT SORT OF INCIDENTS DO I NEED TO TELL COMCARE ABOUT? The WHS Act details the types of incidents 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. Highlighted items are defined later in this guidance. The WHS Act aims to provide encouragement and assistance to PCBUs, workers and other persons to ensure that duty of care obligations imposed under the legislation are met. Although specific incident types requiring notification are outlined in the WHS Act (under sections 36 and 37) there may be instances where the PCBU is unsure whether or not the incident meets the notification criteria. As such, it is important that each incident is considered separately based on the information available at the time and that decisions by PCBUs are not made based on the outcomes of previous notifications or through the application of general rules of thumb. Irrespective of whether an incident is notifiable to Comcare, all incidents should be captured and recorded by the organisation. INCIDENT NOTIFICATION AND INSPECTIONS tification of an incident is a statutory obligation outlined in section 35 of the WHS Act. Timely incident notification informs Comcare about current and potential health and safety issues and whether or not to conduct an inspection. PCBUs 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 on the Comcare website. 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 has occurred which arises out of its business or undertaking. It is a statutory requirement that Comcare be provided with immediate notification of notifiable incidents. This ensures Comcare can address risks to health and safety promptly. It also enables Comcare to investigate serious injuries, illnesses or dangerous incidents in a timely manner. 5 WHS 029

6 The sooner Comcare is notified, the sooner the site can be released (refer to section on preserving the site). The duty to notify is not transferable, 3 but more than one PCBU may concurrently have a duty to submit an incident notification to Comcare regarding the same safety incident. 4 If the notifiable incident arises out of a particular PCBU s business or undertaking, that PCBU must notify Comcare, irrespective of whether the notifiable incident also arises out of the business or undertaking of another PCBU. Although the duty to notify Comcare in section 38 of the WHS Act is one owed by the PCBU, the way in which the PCBU discharges this duty may involve arranging for another entity or person to submit notifications on their behalf. For example this could be: > the person with management or control of the workplace > the supervisor of the injured worker > any other person with identified responsibility to notify. 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 accruing to the PCBU which holds the duty to notify. WHEN IS AN INJURY OR ILLNESS SERIOUS? Section 36 of the WHS Act states that a serious injury or illness of a person is an injury or illness requiring the person to have: > immediate treatment as an inpatient in a hospital 5 > immediate treatment 6 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 > medical treatment within 48 hours of exposure to a substance > the following prescribed illnesses 7 any infection to which the carrying out of work is a significant contributing factor, and the infection can be reliably attributable to carrying out work: - that involves providing treatment or care of a person - that involves contact with human blood or body substances - that involves handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products 3 See s14 WHS Act. 4 See s16 WHS Act. 5 for any serious injury not just those listed in 36(b) 6 Immediate treatment refers specifically to those items listed in section 36(b) of the WHS Act and can be administered anywhere (i.e. not as an inpatient in hospital) 7 WHS Regulation 699 (Part 11.3) 6 WHS 029

7 the following occupational zoonoses 8 contracted in the course of work involving the handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products: - Q fever - Anthrax - Leptospirosis - Brucellosis - Hendra Virus - Avian influenza - 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. Refer to the section on interpretation of terms for further information and examples. The Work Health and Safety Regulations (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. 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 9 > 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 (refer to Schedule 5 of the Regulations) > the collapse or partial collapse of a structure (note that this could include Telstra pits) > the collapse or failure of an excavation or of any shoring supporting an excavation > 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. For most hazards such as plant, or a structure collapsing, a person will need to be in the immediate vicinity to be exposed to a serious risk to their health and safety. However, some hazards such as an uncontrolled leak of a hazardous gas or a fire can travel towards a person and expose them to a serious risk to health and safety away from the original source. A dangerous incident includes both immediate serious risks to health or safety, and also a risk from an immediate exposure to a substance which is likely to create a serious risk to health or safety in the future, for example asbestos or chemicals. 8 The World Health Organisation (WHO) defines zoonoses as disease and infections that are naturally transmitted between vertebrate animals and humans. 9 Incidents of falls are considered to occur on the same level or from a height. Refer to draft Managing the risk of falls at workplaces code of practice. 7 WHS 029

8 HOW DO I NOTIFY? A PCBU must notify Comcare of a notifiable incident immediately after becoming aware that: > this incident has occurred; and > that it arises out of the conduct of the PCBU s business or undertaking. The notification must be given by the fastest possible means either by telephone or in writing. tifications may be made through a centralised reporting system and PCBUs 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 mechanisms for notifying Comcare are as follows: > by submitting the online incident notification available at and prevention/reporting_an_injury_or_illness/incident_notification > by submitting the incident notification form to facsimile number > by telephone on > by or other electronic means 10 > if dialling from overseas dial XXXX (call charges apply) where XXXX is your country s international dialling code (this varies depending on your country or region). WHAT INFORMATION DO I NEED TO PROVIDE TO COMCARE WHEN I NOTIFY? Comcare s tification of an incident form (the Form) sets out the information Comcare requires. 11 It has been designed to assist you to meet your reporting obligations. The Form can be accessed on Comcare s website. 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, an Inspector may contact you if Comcare needs further information. All WHS regulators have agreed that the following information should 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, e.g. 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 > relationship of the injured person to the entity notifying > description of injury/illness i.e. nature of injury 10 Existing automated electronic notification systems remain as an applicable mechanism for submitting notifications to Comcare 11 A written notice must be in a form, or contain the details, approved by Comcare: see s38(5) WHS Act. 8 WHS 029

9 > initial treatment of injury/illness noting provisions of the WHS Act that identify that a serious injury or illness requires 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) > PCBU 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 > 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. Please note that it is a legal requirement to provide all of the details the form seeks to obtain. However, the person completing the form need only include the information available to them about the incident at the time of submitting the notification. The form may still be submitted with empty fields if that information is unknown at the time of completing the notification. The required information will need to be provided in a subsequent notification. 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 that disturbance 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. 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 > to make the site safe or to minimise the risk of a further notifiable incident > to facilitate a police investigation > a Comcare Inspector has given permission a direction that a scene may be disturbed may be given in person or by a telephone call. 12 Contact Comcare on if the incident occurs outside of Comcare s normal operating hours and you wish to seek to disturb the incident site. The sooner Comcare is notified, the sooner the site can be released. If you do have management or control of the workplace where a notifiable incident occurs, it may not be reasonably practicable to preserve an incident site. That is, without management or control it may be difficult or even impossible to implement sufficient control over the incident site to meet the intention of section 39 (to gather evidence). Penalties apply if an individual ($10 000), or body corporate ($50 000) fails to preserve a site. 12 See s39(3) of the WHS Act. 9 WHS 029

10 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, making sure the section regarding previous notification of the incident has been completed and any other details are provided as required. DO I NEED TO KEEP A RECORD OF THE INCIDENT? Yes. Section 38 (7) of the WHS Act requires the PCBU to keep a record of each notifiable incident for at least five years from the date Comcare was notified. There are penalties of up to $ for failing to do so. As a matter of prudence, these records should include any directions or authorisations given by Comcare Inspectors at the time of notification (including authorisations to disturb incident sites). CONTACT DETAILS You can contact Comcare using any of the following methods. General enquiries: Monday to Friday: 8.30 am to 5.00 pm AEST Phone: Fax: ohs.help@comcare.gov.au Online reporting system: Website: and incidents/incident_notification te: 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. INTERPRETATION OF TERMS USED IN THE LEGISLATION 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 as the particular circumstances permit. What does serious mean? Under the WHS framework the term serious is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being of great consequence due to threatening harm. 10 WHS 029

11 What does medical treatment mean? The WHS Act does not prescribe what constitutes medical treatment for the purposes of section 36(c). Comcare takes the view that this would include treatment administered within 48 hours of being exposed to a substance by a: > doctor who is registered or licensed to practice under a state or territory law > certain allied health professionals such as ambulance officers and nurses. It would not include first aid treatment administered by first aid officers. 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 2009 (the National Law). Examples of a serious injury or illness The following types of injury will be a serious injury or illness as defined by section 36 of the WHS Act if they objectively require immediate treatment: i) The amputation of any part of the body includes such things as amputation of a limb (such as arm or leg), body part (such as hand, foot or the tip of a finger or toe, nose or ear). ii) A serious head injury such as a fractured skull, loss of consciousness, blood clot or bleeding in the 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 head injuries resulting in 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 (e.g. metal fragment, wood chip); exposure of the eye to a substance which poses a risk of serious eye damage (i.e. notification would not be required for eye exposure to substances which merely cause irritation). iv) A serious burn this is a burn that requires intensive care and/or compression garment and/or a skin graft. A burn which merely requires washing the wound, applying an ice pack and a dressing would not be sufficient to constitute a serious burn. 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 this 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). vii) The loss of a bodily function this 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. It does not include a sprain, strain, fracture or fainting. viii) Serious lacerations that cause muscle, tendon, nerve or blood vessel damage or permanent impairment, 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 to prevent loss of bodily function and/or infection. ix) Any infection to which carrying out work is a significant contributing factor, and the infection can be reliably attributed to carrying out work: that involves providing treatment or care of a person that involves contact with human blood or body substances that involves handling or coming into contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products. 11 WHS 029

12 x) The following occupational zoonoses 13 contracted in the course of work involving the handling or contact with animals, animal hides, skins, wool or hair, animal carcasses or animal waste products: Q fever Anthrax Leptospirosis Brucellosis Hendra virus Avian influenza Psittacosis. 14 Examples of a serious injury or illness that did not receive immediate treatment but could reasonably be considered to warrant such treatment The following are examples of situations where a person does not receive immediate treatment for a serious injury or illness despite the fact that the injury or illness may be considered to warrant such treatment: > A person wearing steel capped boots (PPE) drops a heavy weight onto their foot but does not seek immediate treatment as they consider that the PPE has protected them from serious injury. However, later after removing the steel capped boot it becomes apparent that the foot has been broken. > A person does not receive immediate treatment for a serious injury or illness based on religious beliefs i.e. blood transfusion, accepting treatment from a male/female ambulance officer, doctor etc. INTERPRETATION OF WORDS USED IN SECTION 37 WHAT IS A DANGEROUS INCIDENT What does workplace mean? Workplace is broadly defined in section 8(2) 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? Under the WHS framework the term immediate is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being happening or done without delay as the particular circumstances permit. What does imminent mean? Under the WHS framework the term imminent is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being likely to occur at any moment. What does uncontrolled mean? Under the WHS framework the term uncontrolled is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being unrestrained. What does escape mean? Under the WHS framework the term escape is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being leakage. 13 The World Health Organisation (WHO) defines zoonoses as disease and infections that are naturally transmitted between vertebrate animals and humans. 14 See regulation 699 of the proposed Model Work Health and Safety Regulations WHS 029

13 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 vapor. What does exposure mean in relation to a substance? Under the WHS Act the term exposure is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being the state of being laid open or bare; openness to danger that may have a detrimental effect. What does electric shock mean? Under the WHS framework the term electric shock is not defined. As such Comcare adopts the common-sense or plain English meaning of that word being electric shock is the sudden and accidental stimulation of the body s nervous system by electric current. What does required to be authorised for use in accordance with the regulations mean? Authorisation as defined in section 40 of the WHS Act only applied to Part 4 of the Act. Authorisation for the purpose of incident notification (37(g)) takes the ordinary meaning being to give authority or legal power to. This could occur through licensing or registration. Schedule 5 of the Regulations contains a list of items to be registered. INTERPRETATION OF WORDS USED IN SECTION 38 DUTY TO NOTIFY OF NOTIFIABLE INCIDENTS What does arising out of the conduct of the business or undertaking mean? Under the WHS framework the term conduct of the business or undertaking is not defined regarding a PCBU s actual day-to-day activities. However, it generally refers to business activities or work (including services) undertaken in the course of business. As well as the PCBU s core activities, this would include ancillary activities such as arranging maintenance or supplies. A PCBU is only required to notify Comcare of a notifiable incident if there is some causal connection between that incident and the conduct of the PCBU s business or undertaking. That is, whether the business activities of the PCBU contributed in some way to the incident occurring has to be considered. If so, the duty in section 38 is applicable. When making this assessment, the PCBU should consider the broad range of activities that Comcare attributes to their business or undertaking. It is also important to be aware that although there must be a causal connection between the business activities of the PCBU and the notifiable incident, these business activities may not be the direct or sole cause of the notifiable incident. What does immediately mean in terms of notification timeframes (section 38)? Section 38 of the WHS Act requires a PCBU to ensure Comcare is notified immediately after becoming aware that a notifiable incident has occurred from the conduct of the business or undertaking. This means there must be no delay between the PCBU becoming aware of the incident and the submission of a notification to Comcare. The legislation states the PCBU must provide notice to Comcare by the fastest possible means. 15 Comcare will adopt a common-sense approach to assessing whether a PCBU has notified within the immediate timeframe. Comcare needs to be satisfied that the PCBU has notified as immediately as the particular circumstances permit. In general, Comcare considers that a PCBU becomes aware of a notifiable incident at the time that any of their workers in supervisory or managerial roles become aware of that incident. For example, if a worker suffers a serious injury and notifies their immediate supervisor, it is at this point it is considered that the PCBU is aware of the incident and internal notifications procedures should commence. 15 See s38(2) WHS Act. 13 WHS 029

14 This does not mean that a PCBU can delay submitting a notification until an officer 16 is made aware of its occurrence. It is also essential that the PCBU develop appropriate internal communication systems to ensure that safety incidents are promptly brought to its attention. This will ensure an assessment can be conducted and the PCBU can decide whether or not to notify Comcare. FREQUENTLY ASKED QUESTIONS DOES INCIDENT NOTIFICATION RELATE TO WORKERS COMPENSATION?. tification 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. PCBUs must ensure Comcare is notified of any incidents that meet 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 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 17 is a WHS issue that can cause physical or psychological injury or both to the victim. Workplace bullying is not prescribed in the WHS Regulations as a notifiable incident. However, on rare occasions workplace bullying may satisfy the criteria in section 36(a) of the WHS Act if it results in the victim requiring immediate treatment as an inpatient in a hospital (irrespective of whether they receive the treatment or not). Regardless of whether or not workplace bullying results in a notifiable incident, it is still considered a workplace issue that should be subject to the same hazard identification, risk assessment and risk control processes as any other hazard. PCBUs should recognise bullying as a significant workplace hazard that poses a potential threat to the health and safety of all persons at the workplace. Comcare encourages and supports PCBUs to develop and implement an internal bullying policy and related procedures, in consultation with workers, to proactively address this issue. The contents of the policy should be known by all workers, applied consistently and regularly reviewed to ensure that all reports of bullying incidents are investigated and managed in a timely manner. WHEN DO I NOTIFY A DISEASE? Disease notification is only necessary if the requirements of section 36 of the WHS Act are met, or if they are prescribed in the Regulations. Some diseases are also reportable to the relevant Health Department as public health issues. 16 As defined in s4 WHS Act. 17 For a more detailed description of bullying see the draft Preventing and responding to workplace bullying code of practice 14 WHS 029

15 DO I NEED TO NOTIFY INCIDENTS THAT RELATE TO CONTRACTORS? Yes. Part 3 of the WHS Act makes it very clear that notifiable incidents relate to any person workers or otherwise. An incident resulting in a death, serious injury or illness, or a dangerous incident involving any person, must be notified if it has arisen out of the conduct of the PCBU s business or undertaking. If a notifiable incident involves what would be traditionally referred to as a state-based contractor working for a Commonwealth entity, the PCBU will be required to notify Comcare. The state-based contractor will be required to notify the relevant corresponding regulator. 18 For example, an asbestos removal company which is not covered by the Comcare scheme (the Company) is engaged by the Department of Defence (Defence) to carry out asbestos removal work at Randwick Army Barracks in Sydney and a dangerous incident occurs. Defence will be required to submit a notification to Comcare, but the Company may also be required to provide an incident notification to WorkCover NSW pursuant to Part 3 of the Work Health and Safety Act 2011 (NSW). I AM BASED OVERSEAS AND A NOTIFIABLE INCIDENT HAS OCCURRED. IS THIS NOTIFIABLE? Yes. tifiable incidents which occur overseas must be notified to Comcare in accordance with section 38 of the WHS Act, provided they arise out of the conduct of a PCBU s business or undertaking. For instance, notifiable incidents involving Commonwealth officials at Australian embassies overseas need to be notified to Comcare (as defined in section 5 of the WHS Act). Workers based overseas should ensure they are aware of the correct process for internally notifying incidents. They should be provided with access to relevant workplace networks/contacts that can provide timely support and advice if a serious injury or illness or dangerous incident occurs. In the majority of cases, incidents involving overseas based workers will be notified to Comcare on behalf of the PCBU located within Australia. For example, an overseas based worker may directly contact the HR department within their organisation in Australia to inform them that a notifiable incident has occurred. The HR department may then submit a formal notification to Comcare, on behalf of the worker, immediately after becoming aware of the incident. 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. Determining the person with management or control of a workplace will be a question of fact to be assessed on the unique circumstances of each case. I AM A PCBU CAN I WAIT UNTIL I HAVE CONDUCTED A FULL INVESTIGATION INTO THE INCIDENT BEFORE NOTIFYING?. tifications must be made immediately. Comcare acknowledges that all the relevant information may not be immediately available, but the PCBU must still notify immediately upon becoming aware that a notifiable incident has occurred, and that incident arises out of the conduct of its business or undertaking. 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. 18 Corresponding regulator is defined in s4 of the WHS Act as a regulator operating under a corresponding WHS law. 15 WHS 029

16 WHAT DOES RESAONABLY PRACTICABLE MEAN IN RELATION TO ENSURING HEALTH AND SAFETY? The term reasonably practicable is generally accepted as an appropriate WHS standard for duty holders to meet in most Australian jurisdictions. Duty holders must meet their 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. 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 24 HRS TO NOTIFY COMCARE OF INCIDENTS OTHER THAN A DEATH?. The WHS Act requires a PCBU to ensure notification immediately after becoming aware that a notifiable incident has occurred. DO I NEED TO NOTIFY NEAR MISSES? In certain circumstances incidents that might commonly be referred to as near misses will satisfy the criteria in section 37 (a) (l) of the WHS Act. If that is the case, the incident will need to be notified in accordance with section 38. All other near misses although not reportable to Comcare, should still be reported and captured internally within the organisation s incident reporting system. DO I NEED TO NOTIFY ABSENCES > 30 DAYS OR SHIFTS?. 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. ARE SLIPS AND TRIPS STILL NOTIFIABLE? In most instances a slip or trip may not result in any injury only a minor injury and will not be required to be notified under the definition of a dangerous incident. If the slip or trip results in the person needing treatment as an in-patient in a hospital, then the incident would be notifiable as a serious injury. WHERE CAN I VIEW THE RELEVANT LEGISLATION? 16 WHS 029

17 NOTIFICATION SCENARIOS The following scenarios will assist with deciding whether or not an incident is notifiable under section 35 of the 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. During the attack the assailant stated loudly that he was upset about actions taken by the PCBU that 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 inpatient in hospital and required stitches for a deep cut to her forehead. She was provided with a medical certificate for one week off work. Question Did the incident arise out of the conduct of the PCBU s 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 point Yes the incident arises out of the conduct of the PCBU s business or undertaking as the worker was apparently assaulted because she was a worker of the PCBU which had made a decision adversely affecting the assailant. Yes the worker received serious lacerations to her hands and face as a result of the attack. She required 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 her 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? Was it a dangerous incident? Decision point 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. Yes as a result of the incident the volunteer required immediate medical treatment for her injuries at hospital (as defined in section 36). Is it notifiable? Yes this incident is notifiable as a serious injury or illness (refer to section 36). 17 WHS 029

18 SCENARIO 3: DANGEROUS INCIDENT A worker is involved in an incident whereby a forklift loses its load which lands next to a group of workers. The workers are shaken, but no one received any injuries. 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 point 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. Yes it occurred at a workplace. People were exposed to immediate or imminent exposure from the fall or release from a height of any plant, substance or thing. Yes the incident is notifiable as a dangerous incident. 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 at work. 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? 19 Decision point Yes there is no information available to suggest the conduct of the PCBU s business or undertaking is causally connected to the heart attack. although the heart attack required treatment as an inpatient in hospital it could not be demonstrated that it was caused because of work. 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). 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. 19 Although this scenario is categorised as non-notifiable if it can be established that the worker was experiencing high levels of work-related stress prior to the heart attack occurring then the incident could be notifiable meaning that a causal connection has been made between the worker s stress levels and the PCBU s undertaking which contributed to the heart attack at the workplace. 18 WHS 029

19 SCENARIO 5: NON-NOTIFIABLE INCIDENT A staff member is traveling to conduct a home visit as 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 point Yes the incident occurred while the worker was carrying out her normal duties at a workplace for a business or undertaking (a vehicle is included as a place under section 8 of the WHS Act). 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. 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. this incident is not notifiable as 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. 19 WHS 029

20 Comcare secure: tification of Incidents occurring on or after 1 January /05/12 3:32 PM Sample notification form tification of an incident This notification form is approved by Comcare for the purposes of section 38(5) of the Work Health and Safety Act 2011 (Cth) (WHS Act). Management of an individual s privacy This form seeks to collect information including personal information for the purpose of administering and enforcing the WHS Act and the Work Health and Safety Regulations 2011 (Cth) (the WHS Regulations). Comcare is authorised by law to collect personal information under section 38 of the WHS Act where it is reasonably necessary to do so when administering and enforcing the Act and Regulations. Information on how Comcare manages an individual s privacy is available at Who should complete this form? Click on the questions marks for help when completing this form and for further guidance refer to Comcare's Guide to Work Health and Safety Incident tification. The fields marked * are mandatory. Please complete as much of this form as possible - if you do not know the answer to a question, type 'unknown'. 1. Details of the person conducting the business or undertaking (PCBU) which gave rise to the incident * Agency/department /authority/company * Australian Business Number (ABN) * Australian Company Number (ACN) * Street address * Town/suburb * Postcode * Person with management or control (PWMC) of the workplace where the incident occurred As above Other 2. Previous notification of this incident * Has this incident been notified to Comcare previously, by telephone or in writing (fax or )? Yes 3. Details of the incident * Date of incident * Time of incident : 24 hour * Type of incident Serious injury or illness type (if applicable) -select- * State -select- -select- Page 1 of 4 20 WHS 029