If you’re considering reporting a safety incident then you probably should

We are regularly called upon to advise clients who are considering reporting a safety incident to the relevant regulator, which in NSW is SafeWork NSW.

This can be a very good question in the case of a minor event that may not constitute a ‘notifiable incident’ under the relevant Work Health and Safety legislation¹.

But more often than not, if the question is being asked, the incident will fall within the definition and our advice will usually be that the client should report it.

Overall, we suggest an ‘if in doubt report’ approach and recent cases and legislative amendments have only reinforced this recommendation.

So why should you report?

1. It is an offence under WHS legislation not to report notifiable incidents and a failure to do so can expose both the person conducting the business or undertaking (PCBU) and its officers to prosecution.
2. If the regulator finds out during an investigation – as it often does – that similar previous incidents have not been reported, this will be held against the PCBU if there is a prosecution (unless the evidence can somehow be excluded).
3. Early reporting can help reduce any subsequent penalty that is imposed. This was demonstrated in a recent South Australian decision², when a relatively modest fine – given the horrific incident – of $25,000 was imposed (and then reduced by 40% to $15,000 for an early guilty plea).

The incident involved two supervisors squirting flammable liquid onto a 19 year old first-year apprentice’s boot and shirt and then lighting it. Fortunately only minor injuries were sustained but it is astounding that incidents such as this continue to occur. Both supervisors were sacked and personally charged and convicted of category 1 offences (recklessly exposing an individual to the risk of death or serious injury or illness). The PCBU, which reported the incident as soon as it became aware of it, was also charged. In sentencing the PCBU the Deputy President Magistrate said he was “impressed by its self-report” and further continued: “I consider that encouragement to report WHS Act offences is an important tool for the administration of the WHS Act, and can be assisted by the sentencing court taking into account in mitigation of sentence self-report to authorities. It is an approach consistent with the objectives of the WHS Act which are to secure the health and safety of workers and workplaces.”

4. The NSW government has introduced a new penalty notice offence³ which permits PCBUs to be handed on-the-spot fines of up to $6,000 and individuals up to $1,200 for failing to notify SafeWork NSW immediately after becoming aware that a notifiable incident has occurred.

It is also important to be aware that reporting an incident to the relevant workers’ compensation insurer does not constitute reporting it to the safety regulator. They don’t talk to each other and this is no defence.

What’s holding you back?

Fear of prosecution, not wanting the regulator on site, and the time and expense involved in an investigation should not hold PCBU’s/employers who are doing the right thing back from reporting. The reality is that even those who are not doing the right thing are better off coming clean sooner rather than later, before something even more horrific occurs.

And please don’t think that there’s nothing you can do to protect yourself or limit your exposure if a safety incident does occur – there’s lots you can do that we’d be happy to talk through with you – but generally speaking, choosing not to report won’t be one of them.

So, if you’re not sure whether to report or need help following an incident, please give us a call.

1 See for example sections 35 to 39 of the Work Health & Safety Act (NSW) 2011 which contain definitions of ‘notifiable incident’, ’serious injury and illness’ and ‘dangerous incident’ which can take some working through.

2 Martyn Campbell v Tad-Mar Electrical Pty Ltd [2019] SAET 225 (13 November 2019)

3 Introduced into Schedule 18A of the Work Health and Safety Regulation 2017 from 15 November 2019