Failure to notify a WHS reportable incident — beware of consequences

Employers are being reminded about the importance of notifying health and safety regulators when there has been an incident.

The warning comes as more than 10 prosecutions in 12 months were handed down in Australia for the failure to notify a reportable incident.

Since April 2015 there have been at least 33 such prosecutions — 16 of which took place in Victoria.

To mark National Safe Work Month this October, the Workplace Health and Safety team at Clyde & Co is reminding employers of the importance of notifications. Failing to comply with the incident notification and site preservation requirements under Workplace Health and Safety laws is one of six priority areas for health and safety regulators.

According to Clyde & Co partner Alena Titterton, when determining whether to prosecute such failures, regulators look at a number of factors including the seriousness of the offence and the extent to which the regulator wants to send a message to that company or the community as a whole. However, the chance of prosecution is high.

"Incidents are only required to be notified when something very serious has happened, usually in the context of a serious injury, illness or death. In those circumstances, you are also likely to see workers compensation claims. Those other proceedings will come to the attention of regulators," said Titterton.

In fact, this particular chain of events is the reason why Workplace Health and Safety Queensland uncovered the incident involved in the recent prosecution of KFS Fuel Services Pty Ltd.

"Once discovered, a failure to notify will bring even greater scrutiny of the relevant incident," said Titterton.

When regulators are determining whether to prosecute for the more serious duty of care offences (which carry potential penalties up to AU$3 million), a failure to notify the incident would be considered an aggravating circumstance.

Persons conducting a business or undertaking need to notify the relevant regulator immediately after becoming aware that a notifiable incident has occurred. There are also jurisdiction-specific requirements around time frames for, and form of, written notices. In most jurisdictions, failure to comply attracts potential penalties of up to AU$50,000 for organisations and AU$10,000 for individuals.

In the most recent incident notification prosecution in Queensland, the Toowoomba Magistrates Court imposed a significant penalty of AU$25,000.

Titterton has provided the following tips for companies seeking to avoid a failure to notify fine:

• Develop a fast coordinated response protocol. Organisations need to review their incident response policies and procedures to ensure the protocols enable immediate response and a coordinated approach across the organisation to notifying regulators, keeping records and ensuring site preservation.
• Train managers in implementing this protocol. A protocol is only helpful if it is activated in practice. Providing managers on the ground with key contacts and key initial steps should be part of the protocol so that immediate notifications occur in practice. Notification issues often emerge where there is a disconnect between corporate, HR, legal functions and management on the ground. Organisations should also test these aspects of their systems when conducting emergency drills.
• Get legal involved early. If an employer has experienced an incident requiring notification to a health and safety regulator, it is a serious incident where multiple legal actions may arise. The first 24 hours of incident response, investigation and evidence gathering is critical in that context. Incident protocols should 'triage' incident types and provide for legal support in notifiable incidents.
• Appoint key personnel for incident management. Incident response protocols work best when they appoint key internal personnel to manage liaison with various stakeholders including regulators following the immediate notification requirements. This enables consistent approaches to dealing with regulators across the business. That person can determine whether the incident is notifiable, attend to the written notifications following verbal notification and determine whether legal or other support is required.

Clyde & Co has developed a free app called ClydeCovered, which can identify whether an incident is notifiable or not. The app is designed to assist in determining whether an incident is notifiable or not across all Australian jurisdictions, providing the key regulatory requirements for the specific jurisdiction; a list of immediate steps to take (including reminders around site preservation) and compilation of an incident report which can be sent to the user or members of the organisation for both internal and external reporting. It also provides phone numbers for the regulators as well as links to the regulatory prescribed forms. For further information about the app, visit www.clydeco.com/emergency/clydecovered.