A work health and safety incident can happen at any workplace at any time. Knowing how to respond to a WHS incident in the midst of a stressful and dangerous situation can have major impacts. These range from the health and safety outcomes for individuals immediately involved in the incident through to the operational and legal effects on the business and management.
It is inevitable that WHS incidents will occur, despite the adherence to WHS duties and the necessary control measures being in place. The actions taken following an incident are critical to ensuring that any continuing risk to health and safety is immediately addressed, urgent medical treatment (if necessary) is provided, and WHSQ is contacted (if required).
Persons conducting a business or undertaking (PCBU) are strongly encouraged to prepare and implement an incident response policy and procedure. Ensuring such materials are in place, management and employees are aware of the policy and have received appropriate WHS training, and the materials are regularly reviewed will assist to ensure that the appropriate steps are undertaken to protect and assist workers and the business as well.
It is recommended that a PCBU clearly identifies who is the designated contact for Workplace Health and Safety Queensland (WHSQ) (i.e. a person tasked with notifying WHSQ and, if required, ongoing communications with inspectors).
Immediately following a WHS incident, it is crucial that a PCBU takes the necessary proactive steps to protect its interests, along with those of its workers and officers. A WHS incident does not mean that the PCBU has contravened a duty owed under the Work Health and Safety Act 2011 (WHS Act). Nor does it preclude a PCBU from protection owed under the WHS Act.
Engaging lawyers at an early stage will enable the PCBU to gain advice and guidance and, importantly, establish legal professional privilege (LPP) over communications, reports and investigations regarding the incident.
We can provide guidance and advice regarding WHS incident response, including when and how to notify the regulator, Workplace Health and Safety Queensland, communicating with inspectors (and police, when required) and drafting compulsory responses to notices issued under the Work Health and Safety Act 2011.
We have significant experience in conducting discrete investigations into safety incidents, often in cases in which fatalities are involved. We can assist you to determine causative factors, identify gaps in training and documentation and advise potential proceedings under the WHS Act. Our investigations are subject to legal professional privilege, which means our advice and reports are protected from disclosure to third parties.
Under the WHS Act, a PCBU has a duty to inform WHSQ by the fastest means possible as soon as they become aware of a notifiable incident at the workplace, which includes:
In addition to incident notification, a PCBU also has a duty to preserve the incident site until an inspector arrives on-site or at an earlier time that an inspector directs. Failing to preserve the site is an offence and carries a maximum penalty of a $10,000 fine*.
It is now usual practice when first responders (i.e. fire, ambulance and police) are called to a workplace in response to an injury or fatality to notify WHSQ of the incident. That, however, does not replace the need for the PCBU to formally notify WHSQ of the notifiable incident.
Failure by a PCBU to notify WHSQ (regardless of whether WHSQ is already aware or not), immediately after becoming aware of the notifiable incident is an offence that carries a maximum penalty of a $10,000 fine*.
When a PCBU provides notification by phone, WHSQ may request that written notice of the incident be provided. It is crucial to ensure that any communications sent to WHSQ are authorised by the PCBU and do not contain personal views, analysis or speculation regarding the incident.
Without a clearly defined policy in place, a PCBU faces the risk that a notification could be made by a person unauthorised to do so or by providing more details than necessary and desirable. In these situations, a PCBU could unintentionally expose itself to a greater risk of prosecution by disclosing information that would otherwise not be required to given to WHSQ. Seeking the assistance of lawyers experienced in WHS law is critical at this stage.
Depending on the nature of the incident, and the perceived level of seriousness, WHSQ inspectors/investigators may attend the workplace very soon after the notification or in the following days.
Following notification of an incident, it is likely that WHSQ would let the PCBU know that an inspector is likely to attend the workplace and when that will likely occur.
Gilshenan & Luton are specialist criminal defence and WHS lawyers experienced in workplace safety incident response. We can assist immediately following an incident by providing advice and communicating with WHSQ inspectors (and police if necessary) on your behalf. We can also attend the workplace to assist and advise in person.
* Penalties current as at August 2023