Failure to report a notifiable incident is an offence

admin • May 20, 2025

Section 38 of the Occupational Health and Safety Act 2004 imposes a legal duty on employers to notify of incidents:


"An employer or self-employed person must not, without reasonable excuse, fail to notify the Authority immediately after becoming aware that an incident has occurred at a workplace under the management and control of the employer or self-employed person. s38(1)

The employer must notify immediately by calling WorkSafe by calling 13 23 60, at which time they will be given a reference number. Thie reference number serves as proof that the employer did immediately notify the regulator." s38


The employer must fill out an incident notification form (found at Incident notification form | WorkSafe Victoria) and this form must be submitted within 48 hours of the incident occurring.


Failure to notify is a breach of legal duty and the offence can result in prosecution.


It is also a legal duty for the employer to preserve the site of the incident. Failure to preserve the scene is an indictable offence under section 39 of the OHS Act.


So, what classifies as a notifiable incident?

Any of the following:

1.     Death

2.     Exposure to a substance resulting in a need for medical treatment within 48 hours

3.     Any incident resulting in the need for immediate in-patient hospital treatment

4.     Any incident result in the need for immediate medical treatment for any of the injuries listed:

a.     Amputation

b.    Serious head injury

c.     Serious eye injury

d.    Removal of skin (eg: scalping, degloving)

e.     Electric shock

f.       Spinal injury

g.     Loss of bodily function

h.     Serious lacerations (ie: requiring stitching or other medical treatment)

5.     Any incident through which a person is at serious risk as a result of exposure to an:

a.     Uncontrolled escape, spillage, or leakage of a substance

b.    Implosion, explosion or fire

c.     Electric shock

d.    Fall or release from height of any plant, substance or thing

e.     Incident involving plant (collapse, overturning, failure or malfunction) as per OHS Regulations

f.       Collapse or failure of an excavation or mine (or of any shoring support)

g.     In-rush of water, mud or gas into an excavation, tunnel or mine

h.     Interruption of ventilation in a mine, excavation or tunnel

i.       Any incident involving dangerous goods or explosives


WorkSafe has a straightforward guide on the process here: Report an incident | WorkSafe Victoria


Don’t forget that as Health and Safety representative, you have the right to access information in relation to incidents which affect your DWG. For more information on this topic, take a look at previous articles relating to relating to HSR’s entitlements to access information: HSR Training & Workplace Safety | BeSafe | Reg. Vic. 

For more detail on this, visit Obligations of an employer to health and safety representatives | WorkSafe Victoria

As always, you are welcome to get in touch with us for a chat HSR Training and support | BeSafe | Regional Victoria

Young workers are vulnerable

By admin • May 13, 2025
Young workers are at among the most vulnerable in the workplace. They are at an increased risk of injury or death at work. There are a number of factors which contribute to this, including: Being new to their job or industry Not knowing what their OHS rights are Not having OHS training Not being supervised sufficiently Have less experience in their role Feeling afraid to speak up about safety issues Not knowing how to report safety issues Being under pressure by other workers or their employer Insecure work Employers have a duty to provide a safe workplace to their employees, and particular care should be taken to ensure the safety of the young and vulnerable workers. Read more about this at Young workers: Safety basics | WorkSafe Victoria . When a young worker is killed at work, the ramifications are devastating. In these videos, two brave fathers describe what happened when their sons went to work and never came home: Workplace Incidents Consultative Committee: David Brownlee's story | dtf.vic.gov.au Workplace Incidents Consultative Committee: Brett Struhs' story | dtf.vic.gov.au Both companies were charged following the deaths of these young men, but nothing will bring them back to their families.  Both stories highlight the importance of protecting young workers from hazards in the workplace, as is the duty of the employer.

OHS Learnings from Judge Peter Rozen

By admin • May 6, 2025
Judge Peter Rozen is currently a Judge in the County Court of Victoria where he was appointed in 2022. His name is well known, due to his long history as an expert in Occupational Health and Safety law. Judge Rozen has been involved in a number of high-profile reviews and inquiries, and he co-authored a textbook on the subject: ‘Health and Safety Law in Victoria’. Recently, Judge Rozen presided over the case of DPP vs Energy Australia Yallourn Pty Ltd , where he gave his sentencing remarks on 27 th March 2025. This case was a pure risk prosecution relating to a fire at the power plant, which resulted in the conviction of Energy Australia for breaching section 21 of the OHS Act. The County Court broadcast the sentencing remarks on YouTube: Sentence of DPP v Energy Australia Yallourn Pty Ltd before Judge Rozen – 27 March 2025 in what was a helpful move to make access to his commentary more accessible to those wanting to learn from OHS rulings. Judge Rozen took the opportunity to explain the way in which employers must engage in risk assessment including the consideration of the likelihood of the event occurring and its’ potential consequence. He also took the time to explain that employers must provide the highest level of protection against risks to health and safety and that they must be proactive in their duty to provide a safe workplace, as well as to monitor conditions and to engage suitably qualified persons in relation to OHS. Notably, he highlighted the need for meaningful consultation and the fact that employees are entitled to be represented (by and HSR). Rozen went on to delve into the concept to ‘ reasonably practicable ’ and described how the ‘more ‘reasonably practicable’ an identified risk control measure was, all else being equal, the more egregious will be the failure to have implemented it’. Judge Rozen’s closing remarks were a strong reminder to duty holders as to their legislated responsibilities under the Law: ‘It has been stated by the Court of Appeal on more than one occasion that employers are required by the Act to take an active, imaginative and flexible approach to the safety of those who may be affected by their undertakings. An employer must actively identify risks to health and safety and take all steps that are reasonably practicable to obviate those risks. Employers are not allowed under the law to take a passive approach to safety only improving safety procedures after an incident... fines in OHS cases must draw attention to the importance of workplace safety, and send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.' The full transcript is available at: sentencing-remarks-dpp-v-energy-australia-yallourn.pdf And the video can be viewed at: Sentence of DPP v Energy Australia Yallourn Pty Ltd before Judge Rozen – 27 March 2025 Any HSR, employer or person interested in OHS would benefit from listening to the comments of Judge Rozen. In particular, his educational comments which I have summarised are found at around the 11.30 mark.