Saturday 18 February, 2012
Under the new work health and safety harmonised laws, incident notification requirements have changed. Each State faces varying degrees of change based on their pre-existing health and safety laws. One major area of change concerns reporting dangerous occurrences – in particular, collapse, overturn, failure or malfunction of “authorised’ plant.
During this time of transition, earthmoving machinery operators may be confused about when to notify under the requirements for authorised plant and the different notification requirements for States that have not yet adopted the new laws. This article provides a summary of incident notification requirements under harmonised laws and an outline of the requirements for each State that has not adopted the new laws.
The Model Work Health and Safety Act (2011) requires Persons Conducting a Business or Undertaking (PCBU) to notify their Regulator in the event of a death, serious injury/illness or dangerous incident that arises out of the conduct of the business of undertaking.
This means that the PCBU (that could include an employer, manager, Director, CEO etc) must immediately notify (via telephone, email or other electronic means), if an incident occurs that fits the definition of “notifiable”.
For example, the Principal Contractor should notify the State Regulator if a notifiable incident occurs as a result of the work being conducted on the work site. The death or serious injury could include any person (including self-employed persons and members of the public).
Under the harmonized laws, a serious injury includes those which require immediate treatment as an inpatient (which means being admitted to the hospital, not just waiting in the emergency room) and immediate treatment for amputation to any part of the body, serious head, eye, burn, laceration injuries, separation of skin (such as scalping or de-gloving), spinal injury, loss of bodily function, or medical treatment required within 48 hours of exposure to any substance.
As the Model laws closely resemble Victoria’s existing notification requirements under the OHS Regulations (2007), it is useful to look at the definitions of these incidents provided by WorkSafe Victoria.
For example, a serious injury includes mechanisms such as penetration or fracture to skull/spine, penetration to eye, injury to head/eye from chemicals or hot metal burns, and lacerations that may involve one or more deep cuts or tears to flesh or tissue that requires stitches or treatments to prevent blood loss and infection. Loss of bodily functions may include loss of sight in one eye (or both), loss of other senses such as taste, smell, hearing, loss of consciousness (including from a blow to the head), any paralysis to limbs and loss of the function of an internal organ. Interestingly, if a worker decides to battle on without receiving medical treatment, notification must still take place if the injury would reasonably warrant the treatment.
A PCBU must also notify their State Regulator in the event of a “dangerous incident”. Under the harmonized laws, this includes the following:
- Uncontrolled escape, spill or leak of a substance
- Uncontrolled implosion, explosion or fire
- Uncontrolled escape of gas or steam
- Electric shock
- Fall or release from height, any plant, substance or thing
- Collapse, overturn, failure or malfunction, damage to any plant required to be authorized for use (by license or registration) under the Model Regulations.
- Partial/Total collapse of structure
- Partial/Total collapse of excavation, or shoring supporting an excavation
- Inrush of water, mud gas in an underground tunnel/excavation
- Interruption of ventilation in an underground tunnel/excavation
- Any other incident as prescribed in the Regulations.
Once a PBCU notifies the Regulator, the Regulator must give receipt of the call or advise that written notification must be provided with 48 hours. Further to this, instructions may be given to ensure the site is preserved.
Preserving the site includes any plant, structure, substance or thing associated with the incident, except where it is necessary to remove deceased persons, helping injured persons, essential activities to make the site safe, assist with police investigations and where an Inspector gives permission. Records of the incident notification must be kept for 5 years.
Failing to report notifiable incidents under the harmonized laws can be costly. Individuals can face a $10,000 fine and this increases to $50,000 for a Body Corporate. These same amounts also apply to those who fail to preserve the site after an incident occurred. Failing to keep records could end up costing an individual $5,000 and a Body corporate $25,000.
At present, New South Wales, Northern Territory, ACT and the Commonwealth have adopted the harmonized laws as they appear above for incident notification. Queensland has adopted the new laws with modifications including notification for serious illnesses for any infection where work was the contributing factor.
This includes illnesses arising from micro-organisms, providing treatment to others, contacting blood/body substances and contact with animal/animal parts (and subsequent zoonoses).
As Victoria, Tasmania, South Australia and Western Australia have not adopted the harmonized laws, their exiting legislation applies in each State. It is important to note that each State has varying requirements for incident notification under their existing laws.
Although the incident notification requirements under the Model legislation does reflect Victoria’s existing laws closely, there are some differences. Victoria’s legislation includes notification under the OHS Act, Regulations and the Equipment (Public Safety) Regulations for prescribed plant (including earthmoving machinery).
The main differences for Victorian workplaces are that if an incident occurs that may expose persons to an immediate risk to health and safety (similar to a dangerous incident although the persons must be in the area that is affected by the incident) and only an employer or self-employed person was exposed to the risk, it does not need to be reported. Another major difference is that written notification is automatically required within 48 hours and an Inspector can issue a Non-Disturbance Notice to preserve the site for up to 7 days for further investigation.
Under Tasmania’s Workplace Health and Safety Act (1995) an Inspector must be notified if persons are killed or suffer serious bodily injuries/illness or a dangerous occurrence takes places where persons in the vicinity could have been killed or suffered a serious bodily injury/illness. Follow-up written notification within 48 hours is also required.
A dangerous occurrence includes items similar to the harmonized laws, expect for the inclusion of damage to pressure equipment, load-bearing members of lifting machinery, scaffolds or amusement structures.
South Australian legislation is similar Tasmania but also includes reference to malfunction of breathing apparatus where persons were deprived of breathing air when working in an atmosphere that endangered their health. SA legislation includes a catch-all reference to any other unintended or uncontrolled incident arising from operations at a workplace.
Incident notification requirements under the OHS Regulations (1996) for Western Australia differ to other States somewhat. A serious injury is defined as a fracture to skull, spine or pelvis, or any bone in the arm (apart from the wrist or hand) and any bone in the leg (apart from the ankle or foot). Furthermore, it includes any other injury where a medical practitioner is likely to prevent an employee from working within 10 days of the injury. The report must be made to the “Commissioner”, and a form with certain particulars of the injury/illness must be completed.
An area that may lead to some confusion involves the notification of a dangerous incident that includes the collapse, overturn, failure, malfunction and damage to any plant required to be ‘authorized for use’ under the Model WHS Regulations. This means authorized for use by license, permits, registration or other authority.
Harmonised laws have followed Victoria’s lead in terms of not requiring licenses for operation of earthmoving machinery. Queensland has also removed the requirement for licensing to operate earthmoving machinery as part of their harmonized laws. The only State that requires a license to operation earthmoving machinery is SA as they have not yet adopted the new laws.
South Australia requires notification for damage to /malfunction of ‘other’ (non-load bearing equipment) plant. In summary, notification is not required in any State for collapse, overturn, failure of malfunction and damage to earthmoving machinery where a license is not required to operate and registration with relevant Authorities is not required.
For workplaces based in Queensland, ACT, New South Wales and Northern Territory, it is important to understand the changes to WHS laws and how they may affect incident notification requirements. Visit the website for the State/Territory (as detailed below) to find more information.
- http://www.deir.qld.gov.au
- http://www.worksafe.nt.gov.au
- www.worksafe.act.gov.au
- http://workcover.nsw.gov.au
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