For business leaders, responding promptly and properly when a workplace incident happens is critical to ensure compliance with Work Health and Safety laws (WHS Laws) and protect against associated corporate risks. Some key actions need to be taken in the first hours and days, including responding to safety regulator investigation and enforcement actions. This article delves into some of the essential strategies, procedures and processes to manage an incident and put the business’ best foot forward.
Immediate Actions After an Incident
When an incident takes place in the workplace, providing necessary medical assistance, undertaking appropriate emergency responses and ensuring continuing safety at the workplace is always paramount.
During this initial time, it is important to also remember that under the WHS Laws the site of the incident may be required to be kept undisturbed and the incident immediately reported to the safety regulator if it is a ‘notifiable incident’, which includes a death, a serious injury or illness or a dangerous incident. Sometimes determining whether a notifiable incident has happened is not straightforward, but it is important to get it right as a breach of the requirements can result in penalties or suggest a lack of transparency.
Communication and Investigation Strategy
This initial regulatory notification forms the first part of an important communication and investigation process that may involve a range of internal and external parties and stakeholders and need to be followed well into the future. Implementing a communication and investigation strategy efficiently and cohesively is crucial to protecting business interests and managing work health and safety and other legal risks. Some key components include the following:
- Prioritise and attend to the management of people – notify the family and next of kin before making any public statements, provide guidance as to what is expected of workers and support services available, identify potential witnesses, focus on worker wellbeing
- Maintain clarity and consistency – designate a single spokesperson to manage all media and other inquiries
- Establish robust record keeping processes - manage document creation, distribution and storage
- Stick to the facts – keep messaging limited to what is known, avoid speculation and do not comment on potential causes or offer unverified information
- Consider whether external assistance, including legal assistance, is required or would be beneficial to manage communications and the incident response and risks more generally
- Implement a careful and planned approach to conducting any internal investigation into the incident. Legal assistance prior to commencing any formal information gathering process is recommended, particularly when the circumstances of the incident will likely result in a safety regulator investigation
Responding to Safety Regulator Actions
The actions that the safety regulator may take in response to the incident can vary significantly. Many of the steps above as part of the communication and investigation strategy will assist the business prepare for and respond to the regulatory measures.
It is common for the safety regulator to attend the workplace immediately following an incident and to commence its inquiries and initial compliance and enforcement actions. Prohibition and improvement notices are often issued on the day of the incident with notices to provide information and documents served subsequently as part of the evidence gathering process.
The notices are a significant part of the regulator’s arsenal in responding to an incident and enforcing the WHS Laws. Similar to the notifiable incident requirements, non-compliance with the notices is a breach that can result in fines and possibly prosecution.
Briefly the key notices are as follows:
- Improvement Notice: Issued when an inspector believes the business has contravened, is contravening, or is likely to contravene the WHS Laws. It directs the business to fix the issue within a specified timeframe while allowing the workplace to continue operating
- Prohibition Notice: Issued when an inspector believes an activity involves or will involve a serious risk to health and safety due to imminent or immediate exposure to a hazard. It requires the activity to be stopped immediately until the risk is mitigated. The notice will usually provide both compulsory and non-compulsory directions
- Notice to provide information and documents: A fact-finding or compliance monitoring process which can require considerable time and cost resources to address.
There is a range of formal requirements for each of these notices which a business should carefully review to determine whether clarity should be sought or a challenge made to the notice’s validity. Time limits apply to the formal challenge steps, with an internal review able to be requested for prohibition and improvement notices within 14 days of receipt. If the notice’s validity is confirmed, this then triggers a right to seek an external independent review within 14 days of the internal decision.
No formal review options exist for a notice to produce information and documents. However, there are several protections that may be able to be relied on to limit or restrict the nature and extent of the response required, including legal professional privilege. Getting proper advice and early engagement with the inspector on these aspects is important to protect the business’s interests.
In the wake of a work health and safety incident, a well-structured system to respond is essential to protect workers, ensure compliance, manage risks and maintain corporate reputation. Following best practices immediately following and shortly after an incident can significantly enhance the ability of business leaders to responsibly and positively deal with a challenging situation and strengthen long term safety culture.
At Hall & Wilcox, we are adept at efficiently handling quick turnaround safety issues, using our experience to address health and safety risks while advising company directors on minimizing liability. In the event of a safety incident, we provide timely, coordinated support and represent clients in dealings with safety regulators. Have concerns or need advice? Get in touch with Nicholas.
