Safe Work Prosecutes: Failure to Notify

In the recent decision of the District Court (Court) in Safe Work NSW v Easy Fall Guttering Pty Limited, a company was charged with three separate offences under the Work, Health and Safety Act 2011 (NSW) (the Act) which occurred as a result of a serious workplace incident. This case demonstrates the critical importance of businesses understanding their roles as duty holders for the purposes of the Act, the need to properly identify workplace hazards, assess risks, and implement control measures to manage and mitigate risk to workers. This case also highlights the importance of consulting with other duty holders if they exist about risk and notifying a workplace regulator immediately if a reportable incident has occurred.

The case involved a worker who experienced a spinal injury after falling during the installation of a guttering system that the Court found was a ‘blindingly’ foreseeable risk. However, no action was taken by the company to ensure the worker’s safety, resulting in a breach of section 19(1) of the Act.

The company’s failure arose in three major ways. Firstly, it failed to require its contractor or the worker to conduct, document, and provide it a risk assessment with respect to the work to be done. Secondly, it failed to require its contractor or the worker to propose control measures to mitigate any risk, namely the risk of falls at the work site. And thirdly, it failed to provide information to the worker as to control measures to be implemented to mitigate or prevent the risk, for example the use of temporary or mobile scaffolding to support the worker while they conducted the installation.

The second offence the company was charged with involved a breach of its duty under section 46 of the Act. The company failed to consult, co-operate, and co-ordinate activities with another duty holder, namely its contractor, to ensure the health and safety of the worker. Such consultation with the other duty holders, is required to include discussion about the risks involved in the work to be done, reasonable steps to mitigate those risks, and the formulation of safe work procedures to be supplied to the workers for the purpose of completing the task. The company did not take any of these steps.

Finally, the company was charged under section 38 of the Act for a failure to notify Safe Work NSW of the worker’s injury. That section requires the company to ensure that the WHS regulator is immediately notified after it became aware of any ‘notifiable incident’. The Court found that the injury inflicted on the worker was a ‘notifiable incident’ pursuant to sections 35 and 36 of the Act, and as such there was a duty upon the company to notify Safe Work NSW. Firstly, under section 35 the injury was classified as a ‘serious injury’ because it required treatment immediately after the incident occurred. And secondly, the worker’s injury could be classified as a ‘serious injury’ under section 36 because it was a spinal injury. As the Court found that the company should have immediately notified Safe Work NSW of the worker’s injury as it was classified as a ‘notifiable incident’, the company inevitably breached section 38 of the Act for its failure to notify the WHS regulator.

A useful takeaway for employers from this case is the importance of notifying the relevant WHS regulator when a ‘notifiable incident’ occurs. Immediate notification not only prevents further contravention with the Act, it also ensures proactive measures are taken in response to serious workplace injuries experienced by workers. Immediate notification also reassures workers that their health and safety at work is treated as a priority. If you have any questions, or would like us to review your existing WHS incident notification procedure, please do not hesitate to contact Nick StevensLuke Maroney or Daphne Klianis.

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