WORK HEALTH AND SAFETY ACT 2011 - SECT 38 Duty to notify of notifiable incidents

WORK HEALTH AND SAFETY ACT 2011 - SECT 38

    (1)     A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred.

Maximum penalty:

        (a)     in the case of an individual—$10 000; or

        (b)     in the case of a body corporate—$50 000.

Note     Strict liability applies to each physical element of this offence (see  s 12A).

    (2)     The notice must be given in accordance with this section and by the fastest possible means.

    (3)     The notice must be given—

        (a)     by telephone; or

        (b)     in writing.

Note     The written notice can be given by facsimile or email, see the Legislation Act

, pt 19.5.

    (4)     A person giving notice by telephone must—

        (a)     give the details of the incident requested by the regulator; and

        (b)     if required by the regulator, give a written notice of the incident within 48 hours of that requirement being made.

    (5)     A written notice must be in a form, or contain the details, approved by the regulator.

Note     If a form is approved under s 277 for a written notice, the form must be used.

    (6)     If the regulator receives a notice by telephone and a written notice is not required, the regulator must give the person conducting the business or undertaking—

        (a)     details of the information received; or

        (b)     an acknowledgement of receiving the notice.

    (7)     A person conducting a business or undertaking must keep a record of each notifiable incident for at least 5 years from the day that notice of the incident is given to the regulator under this section.

Maximum penalty:

        (a)     in the case of an individual—$5 000; or

        (b)     in the case of a body corporate—$25 000.

Note     Strict liability applies to each physical element of this offence (see  s 12A).

    (8)     Despite anything else in this section, if a notifiable incident for which notice is required to be given is reported in accordance with the Dangerous Substances Act 2004

, the reporting under that Act is taken to be adequate notice of the incident for the purposes of this Act.

    (9)     For a sexual assault incident, the person conducting the business or undertaking—

        (a)     need only give the following details about the incident:

              (i)     the name and contact details of the person conducting the business or undertaking;

              (ii)     a description of the workplace where the incident happened;

              (iii)     whether or not the incident was reported to police; and

        (b)     must not give information disclosing the identity of any person involved in the incident when notifying the regulator.