incident reporting and investigation i 1 how to meet your ... · benefits of rep orting a workplace...

What are your incident reporting obligations? �� I 1/3

Notifiable incidents �� I 1/3

Reporting to your regulator �� I 1/5

How to notify the regulator �� I 1/5

Benefits of reporting a workplace incident �� I 1/6

What happens if you don’t report a notifiable incident? �� I 1/6

Encouraging workers to report incidents �� I 1/8

Incident report forms �� I 1/8

Checklist: What to include in an incident report form �� I 1/9

Preserving the site of a notifiable incident �� I 1/10

Penalties for failing to preserve the site of a notifiable incident �� I 1/11

What are your incident investigation obligations? �� I 1/11

Why is it important to investigate a near miss? �� I 1/13

Who should conduct an internal investigation? �� I 1/14

How to conduct an internal investigation �� I 1/15

Who will conduct an external investigation? �� I 1/16

Investigations by union officials �� I 1/16

Investigations by inspectors �� I 1/17

Investigations by an HSR �� I 1/18

6 reasons to seek legal advice in relation to a workplace incident �� I 1/18

When does legal professional privilege apply? �� I 1/19

How is LPP established? �� I 1/20

Investigations protected by LPP �� I 1/20

Step-by-Step: How to respond to a workplace incident �� I 1/21

TEMPLATES

Template: Incident Report Form �� I 1/26

Template: Investigation Report �� I 1/27

How to meet your health and safety obligation to report and investigate workplace incidents

IncIdEnT REPoRTIng And InvESTIgATIon I 1

This chapter explains when you must report and investigate a workplace incident, and how to carry out an investigation in your workplace.

0717

IndEXdangerous incident- definition ��I 1/3

external investigation- who will conduct ��I 1/16

health and safety committee- definition �� I 1/13

health and safety representative- definition ��I 1/14

incident investigation- obligations ��I 1/11- levels of investigations �� I 1/12

incident report forms- Checklist: What to Include ��I 1/9- Template: Incident Report Form �� I 1/26

internal investigation- who can conduct ��I 1/14- how to conduct �� I 1/15

investigations- by union officials ��I 1/16- by inspectors ��I 1/17- by an HSR ��I 1/18- protected by LPP �� I 1/20- how to follow up �� I 1/25- Template: Investigation Report �� I 1/27

legal advice- reasons to seek ��I 1/18

legal professional privilege (LPP)- definition �� I 1/12- when does it apply �� I 1/19- how is it established �� I 1/20

near miss- definition ��I 1/3- why investigate �� I 1/13

notifiable incident- what is a ��I 1/3- reporting to regulator ��I 1/5- how to notify regulator ��I 1/5- benefits of reporting ��I 1/6- penalties for not notifying ��I 1/6

risk management plan- definition �� I 1/19

site of notifiable incident- how to preserve ��I 1/10- penalties for not preserving ��I 1/11

toolbox talk- definition ��I 1/14

workplace incident- how to respond ��I 1/21

For further references to these terms, please refer to the full word index.

The mouse icon indicates that an editable document is available for download� You can download it from the Subscriber Zone at www.healthandsafetyhandbook.com.au/subscribers using the password on the cover of the latest Health & Safety Handbook update�

Authors: Michael Selinger LLB, BA (Hons) (ANU) Partner, Holding Redlich Lawyers

Andrew Douglas LLB (Hons) (Tas), Grad Dip Corps and Sec FSIA (Hons) (Melb) Principal, Macpherson Kelley

HEALTH & SAFETY HANDBOOK

I 1/2 IncIdEnT REPoRTIng And InvESTIgATIon

http://www.healthandsafetyhandbook.com.au/subscribers

WHAT ARE YoUR IncIdEnT REPoRTIng oBLIgATIonS?

Under the Work Health and Safety Act 2011 (WHS Act), you must:

§ report a notifiable incident (see below);

§ notify your health and safety regulator (see page I 1/5).

Similar obligations also exist under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and the Occupational Safety and Health Act 1984 (WA) (OSH Act)�

noTIFIABLE IncIdEnTS

The definition of a notifiable incident varies across jurisdictions. However, the following will always be considered a notifiable incident:

§ an incident resulting in someone’s death;

§ an incident causing a serious injury or illness; or

§ a dangerous incident that is the direct result of a work environment or work-related activity.

Definition: Dangerous Incident

A dangerous incident (also called a notifiable near miss) is either an incident that causes immediate serious risks to someone’s health or safety, or exposure to a hazardous substance, e.g. asbestos or hazardous chemicals, which is likely to create a serious risk to someone’s health or safety in the future.

Important: A dangerous incident may occur even when a person is not actually injured. An incident will be considered dangerous if it carries the risk of serious injury. These are often called ‘near misses’�

Definition: Near Miss

A near miss is an unplanned event that did not result in an injury, illness or damage, but that had the potential to do so.

The definition of a notifiable incident differs across jurisdictions

0717

IncIdEnT REPoRTIng And InvESTIgATIon I 1/3

Case Law

In Comcare v John Holland Pty Ltd (2012), the Federal Court fined the offending company after hearing that a fatal accident onsite was preceded by two notifiable near misses.

The first near miss occurred when an unsecured sheet of grid mesh struck the ground about 2 metres from where an employee of the offender stood. The second near miss occurred when another section of grid mesh sheeting fell to the ground, near where two employees were working.

The fatal accident occurred when an employee stood on unsecured grid mesh sheeting 10 metres above ground, which gave way and caused him to fall.

Neither of the near misses were reported to the appropriate supervisor. As a result of this, the offender’s failure to adequately address the near miss incidents was seen as an aggravating factor in the determination. The Court even listed the reasonable steps that could have been taken after each near miss.

The fatal accident, combined with the aggravating factor of failing to respond to the near miss, resulted in the offender receiving a $242,000 fine, which at the time was the maximum fine imposable under the law.

Tip: Only incidents involving a ‘serious risk’ are notifiable, taking into account the likelihood of a serious illness or injury occurring as a result of the incident. This would include any situation which seriously endangers or threatens someone’s health or safety.

A notifiable incident does not have to affect a worker. Any person could be affected, including a volunteer or a member of the public. If your business caused the incident, it is your obligation to notify the regulator�

Important: The duty on employers in Victoria also extends to incidents that expose a person in the vicinity to an immediate risk to their health or safety, e.g. an explosion or the collapse of a building�

Case Law: Company

fined the maximum

amount



Tip: In some cases it may not be obvious that an incident is a notifiable incident, e.g. because an injury or illness is not immediately apparent or seems only temporary. If you are unsure, it is always best practice to notify the safety regulator in case a health condition develops or worsens.

Caution: A large number of businesses under-report incidents. You need to check whether this could be an issue in your business and, if so, take steps to address it.

Please refer to notifiable incident in the word index for more information.

REPoRTIng To YoUR REgULAToR

If a notifiable incident occurs in your workplace, you will need to contact the safety regulator in your jurisdiction. The regulators are outlined in the table below:

Jurisdiction Regulator Phone

Cth Comcare 1300 366 979

ACT WorkSafe ACT (02) 6207 3000

NSW NSW SafeWork 13 10 50

NT NT WorkSafe 1800 019 115

Qld WorkCover Queensland 1300 362 128

SA SafeWork SA 1300 365 255

Tas WorkSafe Tasmania 1300 366 322

Vic WorkSafe Victoria 1800 136 089

WA WorkSafe WA 1300 307 877

Please refer to the Information Directory for full contact details.

HoW To noTIFY THE REgULAToR

You must notify your safety regulator via the fastest possible means, i.e. by telephone, fax or email.

When giving notice by phone, you must:

§ give the details of the incident requested by your safety regulator; and

0717


§ if required by the safety regulator, provide written notice about the incident within 48 hours of the regulator’s request to do so�

Written notice can be provided through an incident report form (see pageI 1/26 for a template).

BEnEFITS oF REPoRTIng A WoRKPLAcE IncIdEnT

Reporting incidents not only enables you to fulfil your obligation to report serious workplace safety incidents, i.e. notifiable incidents, it is also an important part of managing health and safety in your workplace.

Incident reporting enables you to:

§ become aware of workplace hazards and their associated risks;

§ determine which controls can help to eliminate or reduce the risks of hazards; and

§ ensure your business is protected in any subsequent investigation or prosecution by the safety regulator or other third party (see below)�

WHAT HAPPEnS IF YoU don’T REPoRT A noTIFIABLE IncIdEnT?

Caution: If you fail to report a notifiable incident to your safety regulator, you may be liable for significant penalties.

The following table outlines when you may be liable for failing to report a notifiable incident:

Jurisdiction Failure to notify the regulator Failure to keep records of an incident

Cth, ACT, NSW, NT,

Qld, SA, Tas

WHS Act

Failure to notify the safety regulator of a notifiable incident could expose you to fines of up to:

§ $10,000 for an individual; or

§ $50,000 for a corporation.

Failure to keep records of a notifiable incident for at least 5 years could expose you to fines of up to:



Reporting an incident helps

to manage health and

safety in your workplace



Jurisdiction Failure to notify the regulator Failure to keep records of an incident

Vic

OHS Act

Failure to notify the safety regulator of a notifiable incident could expose you to fines of up to:

§ 60 penalty units for an individual ($9,514.20 until 30 June 2018); or

§ 300 penalty units for a corporation ($47,571.00 until 30 June 2018).

Failure to keep records of a notifiable incident for at least 5 years could expose you to fines of up to:

§ 60 penalty units for an individual ($9,514.20 until 30 June 2018); or

§ 300 penalty units for a corporation ($47,571.00 until 30 June 2018).

WA

OSH Act

Failing to notify the safety regulator of a notifiable incident could expose you to fines of up to:



There are no penalties in WA for failing to keep records of a notifiable incident.

Important: Victoria’s Parliament has introduced the WorkSafe Legislation Amendment Bill 2017 which, when enforceable, will increase the amount of penalty units to which individuals and corporations can be exposed�

Under this Bill, individuals will face a maximum liability of up to 240 penalty units for failing to notify a safety regulator of a notifiable incident. Body corporates will face a maximum liability of 1,200 penalty units for failing to notify a safety regulator of a notifiable incident.

Case Law

In Safe Work New South Wales v Wayvon Bulk Pty Ltd (2015), the offender pleaded guilty for failing to notify the WorkCover Authority of NSW of a notifiable incident.

An employee of the offending company accidently severed their hand while operating a power saw at a timber plant. The incident only came to WorkCover’s attention after it was notified by the police.

Even though the offender explained their failure to notify WorkCover as a fault of their own ‘ignorance’, they were fined $10,000. This was in addition to their $250,000 fine for a breach of their health and safety duty under s 32 of the WHS Act.

0717


EncoURAgIng WoRKERS To REPoRT IncIdEnTS

Ensure your workers are aware they need to report any workplace incidents, including near misses, to their supervisor or manager�

Important: If a worker reports a workplace incident to you, you need to determine whether the incident is notifiable (see page I 1/3), and therefore needs to be reported to your safety regulator (see page I 1/5).

You must ensure that all of your workers and managers:

§ are properly trained in the incident report writing procedures relevant to their role; and

§ have access to incident report forms (see below)�

Tip: Sometimes workers can feel discouraged from reporting incidents due to possible consequences or because they may be seen as ‘causing trouble’. It’s important to create a positive safety culture where workers are encouraged to report incidents.

Please refer to safety culture in the word index for more information.

IncIdEnT REPoRT FoRMS

Ensure incident report forms are readily available to your workers. Usually a manager or supervisor will need to complete an incident report form, but it is a good idea to have a section on the form to be completed by the worker who first came forward about the incident�

Incident report forms can be developed internally by your business (see page I 1/26 for a template).

Caution: Ensure any description of the incident is limited to the known facts and does not reach any conclusion about the cause of the incident.



For example, an incident report form should state, “The forklift hit the worker”, not, “The forklift hit the worker because the driver was intoxicated”. Until an investigation has been undertaken (see page I 1/15), it is unlikely there will be conclusive evidence of the cause of the incident�

Important: In many cases, the safety regulator will expect to receive a copy of an incident report form – this is another reason why it’s important that the report only records known facts and not speculation�

cHEcKLIST: WHAT To IncLUdE In An IncIdEnT REPoRT FoRM

An incident report form should include the following information:

qq An overview of what happened�

qq The type of notifiable incident, e.g. a death, serious injury or illness, or a dangerous incident.

qq Date and time of the incident�

qq Location of the incident, including the workplace address and the specific area of the worksite where the incident occurred�

qq A detailed description of the incident, including the circumstances in which it occurred�

qq The injured person’s name, occupation, date of birth, address and contact number�

qq The relationship of the injured person to the person filling out the report.

qq The names of any relevant witnesses�

qq Whether the safety regulator has been notified (see page I 1/5).

qq A description of any injuries or illnesses sustained, including how serious they are�

Businesses can develop their own incident report forms but they should include these points

0717


qq Any initial treatment that has been provided�

qq Where the affected person has been taken for treatment.

qq The name of the person conducting the business or undertaking (PCBU) (legal and trading name).

qq Contact details of the PCBU, including their phone number and email address�

qq The business address (if it is different from the address of the incident)�

qq The business’s ABN/ACN.

qq Any action that has been taken or is intended to be taken to prevent a reoccurrence.

See page I 1/26 for a template incident report form.

PRESERvIng THE SITE oF A noTIFIABLE IncIdEnT

In all States and Territories except WA, sites where a notifiable incident occurred must be preserved, i.e. left undisturbed, until an inspector arrives�

However, the requirement not to disturb an incident site does not include when site disturbance is required to:

§ assist an injured person;

§ remove the body of a deceased person;

§ make the site safe to minimise the risk of a further notifiable incident;

§ perform any action associated with a police investigation; or

§ carry out any action an inspector or regulator has given permission to be performed�

Important: In WA, there is no specific duty to preserve the site of a notifiable incident. However, inspectors may require the workplace (or part of the workplace) to be left undisturbed for a specified period. Failure to do so could result in penalties (see page I 1/7).

Other points to consider or your incident

report form

Only in certain circumstances

can you disturb an incident

scene



Case Law

In WorkSafe Victoria v Adams Printers Pty Ltd, the Geelong Magistrates’ Court fined an offender for failing to preserve the scene of an accident.

An employee injured their hand due to a design flaw in a piece of machinery. Before WorkSafe started its investigation, the offender modified the machinery so that it operated correctly. As a result of this, the offender was fined $4,000 for failing to preserve the incident scene. This was in addition to a fine for failing to provide safe plant.

Please refer to notification of incidents in the word index for more information.

PEnALTIES FoR FAILIng To PRESERvE THE SITE oF A noTIFIABLE IncIdEnT

Penalties for failing to preserve an incident site when a notifiable incident has occurred are outlined in the following table:

Jurisdiction Penalties

Cth, ACT, NSW, NT,

Qld, SA, Tas

WHS Act

Failing to preserve an incident site could result in fines of up to:


§ $50,000 for a business.

Vic

OHS Act

Failing to preserve an incident site could result in fines of up to:

§ 60 penalty units for an individual ($9,514.20 until 30 June 2018); or 300 penalty units for a business ($47,571.00, until 30 June 2018).

WA

OSH Act

Failing to preserve an incident site when ordered to do so by an inspector could result in fines of up to:


§ $50,000 for a business.

WHAT ARE YoUR IncIdEnT InvESTIgATIon oBLIgATIonS?

Under health and safety legislation in all jurisdictions, you are required to investigate a notifiable incident as soon as possible.

0717


Important: Serious incidents should always be investigated internally (see page I 1/14). However, in certain circumstances, it may also be necessary for an external third party to investigate the incident (see page I 1/16).

An investigation is necessary to identify the underlying cause of an incident and to take steps to eliminate or minimise any identified risk of injury or illness. Not only will this help to prevent a similar incident from occurring in the future, it will also enable you to comply with your duty of care�

Please refer to duty of care in the word index for more information.

See page I 1/27 for an investigation report template.

You should adopt a process for reporting and investigating safety incidents in your workplace. Your investigation process should be designed to ensure that any investigations and reports produced by your business are protected by legal professional privilege (see page I 1/??).

Definition: Legal Professional Privilege (LPP)

Legal professional privilege is your right to claim confidentiality over reports and documents created during an investigation if the investigation has been undertaken for the dominant purpose of obtaining legal advice about the incident. Anything protected by LPP will not be admissible in a court or tribunal.

Tip: Not all incidents will require the same level of investigation. The more serious or complicated an incident is, the more detailed the investigation will need to be. Outline a process in your written procedures that can be used to determine which incidents require a more detailed investigation. However, it’s a good idea to investigate all incidents, even if they did not result in an injury or illness (see page I 1/13).



WHY IS IT IMPoRTAnT To InvESTIgATE A nEAR MISS?

Although your business is only required to report serious incidents to the safety regulator, it is in your best interests to also investigate all near misses�

Your investigation should address:

§ why the incident occurred; and

§ the steps you can take to prevent a similar incident from occurring in the future�

This will help you to improve health and safety in your workplace.

To reduce the risks and the potential for harm arising from your business’s operations, it is important to build a culture that encourages workers to report near misses as well as more serious incidents� This is because a near miss often provides an insight into the potentially serious deficiencies in your business’s safety systems or processes. Encourage workers to raise these issues by emphasising the improvements to workplace safety that are gained from wider knowledge of near misses�

Tip: Include an avenue for near misses to be reported and discussed in your consultation processes, such as in your health and safety committees or toolbox talks, or by implementing a near miss reporting program in your business. These programs can be as simple as a survey of all staff about any near misses that have occurred in the past 12 months.

Definition: Health and Safety Committee

A health and safety committee is a committee that is made up of both management and worker representatives. Its purpose is to identify health and safety issues and to develop and monitor safe systems of work.

What steps can you take to prevent a similar occurrence?

0717


Definition: Toolbox Talk

A toolbox talk is a meeting held with workers, usually on an informal basis before work starts, where the process or work procedure is explained, or safety information is conveyed.

WHo SHoULd condUcT An InTERnAL InvESTIgATIon?

An internal investigation can be carried out by:

§ a supervisor;

§ a manager; or

§ a health and safety representative if one has been elected in your business (see below)�

Definition: Health and Safety Representative (HSR)

A health and safety representative is a worker who is elected to represent the health and safety interests of workers.

Important: An internal investigation should only be carried out by someone who is trained in the process of conducting an investigation�

It’s a good idea to ensure that all supervisors and managers are trained in the investigation process� Not only will this assist your business in establishing the actual cause of an incident and any remedial steps required, it will also ensure that the investigation is accurate and complete� This will help to protect your business if the matter proceeds to an external investigation conducted by a third party (see page I 1/16).



Important: If a serious incident occurs in your workplace, it is likely that your lawyer will advise you to undertake a more extensive investigation, which will generally be conducted with the assistance of a health and safety consultant� This has the effect of attaching legal professional privilege (see page I 1/12) to the entire investigation process, including the report that is eventually prepared�

Caution: The safety regulator can view an internal investigation report if it decides to investigate an incident, unless the report is subject to legal professional privilege (see page I 1/12). This means that information in the report about the causes of an incident can be used to help prove that you did not carry out your obligation to provide a safe workplace.

HoW To condUcT An InTERnAL InvESTIgATIon

Internal investigations can be conducted by:

§ observing and inspecting the incident site;

§ taking photos of the incident site; and

§ interviewing:

§ witnesses;

§ supervisors and area managers; and

§ anyone who was directly affect by the incident, e.g. an injured worker.

Tip: As part of your investigation, you should assess the training records of any workers who were injured or found to have caused the incident. Also talk to supervisors to assess the workers’ competence in work tasks and in using plant, machinery and equipment.

Internal investigations must involve the input of the supervisor or manager in charge of the area where the incident occurred� This person will have the best technical knowledge of the affected area and the work practices of the workers in that area.

0717


Important: Once the causes of the incident have been identified, you will need to consider corrective action to prevent a reoccurrence� If the corrective measures cannot be implemented immediately, interim measures must be introduced to protect people from the hazard in the short term.

Please refer to risk control in the word index for more information.

WHo WILL condUcT An EXTERnAL InvESTIgATIon?

Under health and safety legislation in all jurisdictions, investigations into a workplace incident can be conducted externally by:

§ a union official (see below);

§ a health and safety inspector (see page I 1/17); or

§ an HSR in conjunction with a union official or health and safety inspector (see page I 1/18).

Important: Ensure you have a procedure in place for handling requests by external parties to investigate an incident. Make sure you comply with your obligation not to impede such investigations, but also try to maintain some control over how and when such investigations take place.

InvESTIgATIonS BY UnIon oFFIcIALS

Union officials who hold entry permits are entitled to enter a workplace to enquire into a suspected contravention of health and safety laws that affects one or more members of their union�

While at the workplace, the official may:

§ inspect any work system, plant or substance;

§ consult with affected workers and the employer; and

§ inspect and make copies of relevant documents.



Important: If a union official enters your workplace to investigate an incident, make sure that the official has complied with the strict notice of entry requirements under health and safety legislation and regulations�

Please refer to unions in the word index for more information.

InvESTIgATIonS BY InSPEcToRS

A health and safety inspector who has reasonable grounds to believe that a person can provide information or documents in relation to a possible breach of health and safety laws may, by written notice, require that person to:

§ provide written information to the inspector;

§ provide documents to the inspector, e.g. an incident report form not protected by legal professional privilege; and

§ appear before the inspector to answer questions�

An inspector may also enter any workplace and require anyone at the workplace to produce documents or answer questions in relation to an incident�

Important: Other than in Victoria and South Australia, a person is not excused from answering a question or providing a document to an inspector on the grounds that it may incriminate them, unless the document is subject to legal professional privilege (see page I 1/12). If this is the case, they are not compelled to provide the information, as it cannot be used as evidence in civil or criminal proceedings�

The South Australian protection against self-incrimination law is subject to review under their Work Health and Safety Act review. SafeWork SA received submissions from stakeholders to alter this protection to align South Australia with other jurisdictions. SafeWork SA is now preparing a written response to submit to the Minister for Industrial Relations that will confirm if this protection has been altered, removed or remains the same.

What you may be required to provide to an inspector

0717


Tip: The legislative fact sheet ‘Role of inspectors in compliance and enforcement’ can provide you with more information about investigations undertaken by inspectors. You can find this fact sheet at www.safeworkaustralia.gov.au.

Please refer to health and safety inspectors in the word index for more information.

InvESTIgATIonS BY An HSR

HSRs are able to enquire into anything that appears to be a risk to the health or safety of workers in the work group they represent�

HSRs may:

§ conduct an internal investigation at the request of the employer (see page I 1/14); or

§ assist a union official or health and safety inspector in conducting an external investigation (see page I 1/16).

HSRs have the power to:

§ inspect a workplace in the event of an incident;

§ accompany a union official or health and safety inspector during a workplace inspection; and

§ be present at an interview (with the worker’s consent) between a worker and an inspector or a worker and their employer�

Please refer to health and safety representatives in the word index for more information.

6REASONSTOSEEKLEGALADVICEINRELATIONTOAWoRKPLAcE IncIdEnT

You should obtain legal advice as soon as possible after a notifiable incident occurs in your workplace. This will enable you to:

§ determine your potential liability;

§ begin collecting relevant information (see page I 1/22);

HSRs can have a

number of roles in an

investigation



http://www.safeworkaustralia.gov.au

§ identify hazards and risks;

§ develop a strategy to protect the business, as well as its directors and managers;

§ ensure that all communications are protected by legal professional privilege, where possible (see below); and

§ help the business minimise liability and the risk of prosecution through the development of a risk management plan�

Definition: Risk Management Plan

A risk management plan can be established in relation to an incident or accident that occurs in your workplace. It identifies and manages workplace hazards by implementing controls in relation to the incident.

WHEn doES LEgAL PRoFESSIonAL PRIvILEgE APPLY?

Legal professional privilege (LPP) applies to any communication or documentation created for the purpose of:

§ giving or receiving legal advice, e.g. letters between you and your lawyer; or

§ being used in a court case that has already commenced, or that you reasonably expect to commence in the future, e.g. file notes and witness statements.

An investigation report prepared because of a statutory reporting obligation is unlikely to be covered by LPP because its preparation would not have been primarily for one of the reasons listed above�

Important: LPP also protects confidential communications between clients, their lawyers and third parties if a communication relates to legal advice or litigation. Therefore, communications with consultants, such as health and safety experts, can also be privileged and should therefore contain a statement that they are subject to legal professional privilege.

0717


HoW IS LPP ESTABLISHEd?

For LPP to be established, it is necessary to formally engage your lawyer to act on your behalf during the investigation, e�g� by formally requesting advice from your lawyer about the incident�

LPP will only apply when the lawyer has requested the investigation report be prepared. If this is the case, LPP will apply regardless of whether the investigation report is prepared:

§ internally (see page I 1/15); or

§ externally by a third party (see page I 1/16).

Important: A brief phone call to your lawyer is not enough − you will need the lawyer to confirm in writing that they are acting on behalf of your business so that it is clear that they are providing advice in relation to the incident�

Caution: Legally privileged investigations can become complicated due to the powers granted to third parties to request information in relation to an incident, as any information provided by a business to a third party will not be privileged.

For example, if a third party (e.g. an inspector, police officer or union official) requests witness statements taken during the business’s internal investigation, it can be difficult to maintain LPP over those statements once they are handed over to the third party�

InvESTIgATIonS PRoTEcTEd BY LPP

If a serious incident occurs, you should consider engaging a lawyer to act on your behalf (see page I 1/18). The lawyer can then request that an investigation report be prepared, which will be protected by LPP. This is known as a privileged investigation report�

It is important

to formally request legal

advice



Important: The investigation report should be labelled ‘subject to legal professional privilege’ to ensure the information and opinions contained in it cannot be used against your business in any subsequent court proceedings, such as a criminal prosecution for breach of health and safety legislation�

The privileged investigation report should:

§ include all photos, interviews and relevant documents;

§ identify the factors that contributed to the incident;

§ suggest corrective actions for each incident; and

§ identify deficiencies in safety management systems.

Your lawyer or health and safety consultant will advise you about the witnesses who need to be interviewed, documents that need to be collected and any tests that need to be carried out�

STEP-BY-STEP: HoW To RESPond To A WoRKPLAcE IncIdEnT

Undertake the following steps in response to an incident that occurs in your workplace:

Step 1: Attend to anyone who is injured or in need of assistance

Before doing anything else you should attend to anyone who is injured or in need of assistance, if it is safe to do so.

Caution: Do not take this step if doing so puts you at risk. For example, if attending to an injured person will require you to enter a site that is collapsing.

Step 2: Secure the incident site

Secure the incident site by:

§ making the area safe to prevent anyone else from being hurt or exposed to a harmful substance; and

§ preserving the incident site, i.e. ensuring that the site where the incident occurred remains undisturbed (see page I 1/10).

0717


Important: In the case of a notifiable incident, you are required in all States and Territories except WA to ensure the incident site remains undisturbed until an inspector arrives at the site, or until an earlier time as directed by an inspector� You may only disturb an incident site if one of the exceptions listed on page I 1/10 applies.

Step 3: Notify the regulator

If the incident is notifiable, notify your health and safety regulator as soon as possible�

Please refer to notifiable incident in the word index for more information.

Step 4: Collect relevant information about the incident

Gather relevant information about all workplace incidents as soon as they occur� This will assist you in your investigation�

Important: Before undertaking this step, determine whether the report will need to be protected by LPP. If this is the case, then your lawyer will request that you or an external investigator collect the information�

To collect relevant information about an incident, you may choose to:

§ inspect the incident site and surrounding area;

§ take photographs and sketches of the incident site;

§ take measurements of any plant or equipment involved;

§ record names and contact details of any witnesses; and

§ note any important features where the incident occurred�



Step 5: Interview witnesses and other workers

As part of your internal investigation, interviews need to be conducted individually with each witness as soon as practicable after the incident� This will help to ensure the validity of their statements and will also prevent witnesses from being influenced by others’ comments.

Important: You should also interview the area manager, supervisor and anyone directly affected by the incident, e.g. an injured worker, if it is possible and practicable to do so.

When conducting interviews during your investigation, make sure that you:

§ allow the interview participant, e.g. the witness or affected worker, to explain what happened in their own words without being influenced by anyone else;

§ encourage the participant to only relay facts and not their own opinion about what happened; and

§ record what the participant saw, heard or felt – if possible, record the actual words that were said at the time of the incident�

Tip: You may ask witnesses or affected workers to draw diagrams or use photos to clarify particular aspects of the incident.

When taking records of an interview, make sure you share the information you have recorded with the participant both during and after the interview� Always have the interview participant sign the statement as being true and correct�

Step 6: Write an investigation report

You will need to write an investigation report for any notifiable incident�

0717


Important: An investigation report will document the full investigation into the incident, and can include information on possible causes of the incident. This is different from an incident report form, which only documents the known facts of the incident (see page I 1/25).

Remember to include the following information in the report:

§ a description of the injured person’s condition or the damage to property or the environment, if relevant;

§ photos of the incident site;

§ brief notes of the interviews with the injured person, supervisor or area manager, and any relevant witnesses;

§ details of where any plant or equipment involved in the incident is now located (if it has been moved);

§ contact details of any witnesses or affected workers who have not yet been interviewed; and

§ brief notes by the investigator about the circumstances of the incident�

Caution: Avoid speculation in investigation reports. The report should only include opinion as to the cause of the incident where there is clear evidence that establishes the reason for the incident occurring.

Important: In Victoria, there is a procedure if prosecution is not brought under the OHS Act� After a person writes to Victorian WorkCover, they have 3 months to investigate the matter and explain if the matter will or will not be prosecuted�

In response to the Fiskville inquiry, Victorian WorkSafe is undertaking a further assessment to establish if the 3-month mandated time period is consistent with good safety outcomes�



Step 7: Follow up the investigation

You should follow up any investigation by using the investigation report to determine:

§ the cause of the incident; and

§ what remedial steps should be taken to ensure an incident does not reoccur�

Example

Terry was injured when his arm became trapped while working in a pit beneath a conveyor belt.

An investigation of the incident finds that Terry had turned off and isolated the conveyor belt at the switchboard before entering the pit, but that the incident occurred when another worker, who didn’t check to see whether anyone was in the pit, pressed an override inching button to reach a box on the conveyor belt.

In response, Terry’s employer decides to implement an administrative control on all inching buttons, preventing them from being used without a permit.

Caution: To maintain LPP over the investigation report, do not reference the report directly when implementing any corrective action.

Important: Communicate with your workers about the investigation process and involve them in identifying risks and any corrective action that must be taken to reduce the risks.

By involving your workers in the risk control process, you will:

§ ensure the risk control measures will be effective;

§ reassure your workers that you are committed to health and safety in the workplace; and

§ increase health and safety awareness and compliance in your business�

0717


TEMPLATE: IncIdEnT REPoRT FoRM

Download the full, editable template from www.healthandsafetyhandbook.com.au/subscribers. You can find the password on the front cover of the latest Health & Safety Handbook update.



TEMPLATE: InvESTIgATIon REPoRT

Download the full, editable template from www.healthandsafetyhandbook.com.au/subscribers. You can find the password on the front cover of the latest Health & Safety Handbook update.

0717


incident reporting and investigation i 1 how to meet your ... · benefits of rep orting a workplace...

Documents