WHS Incident Reporting Requirements in New South Wales

What it is

Section 38 of the Work Health and Safety Act 2011 (NSW) requires a PCBU to notify SafeWork NSW immediately after becoming aware of a notifiable incident arising out of the conduct of the business or undertaking. Failure to notify is a strict liability offence carrying penalty units.

The "written notice within 48 hours" is a common misconception. Section 38(4)(b) makes the written notice CONDITIONAL - required only if the regulator requests it, and running from the request, not from the incident. That was confirmed as widely misstated across industry.

What counts as a notifiable incident

Section 35 defines notifiable incident as:

• the death of a person
• a serious injury or illness of a person (section 36)
• a dangerous incident (section 37)

Section 36 defines serious injury or illness by reference to specific medical outcomes: immediate treatment as an in-patient in a hospital, immediate medical treatment within 48 hours of exposure to a substance, or specific listed conditions (amputation, loss of bodily function, serious head or eye injury, serious burns and spinal injury among other listed conditions).

Section 37 defines dangerous incident as an incident in relation to a workplace that exposes a worker or any other person to serious risk to health or safety emanating from an immediate or imminent exposure to a range of listed hazards including uncontrolled fire, explosion, collapse of structure and escape of substances among other listed hazards.

The immediate notification requirement

Section 38(1) requires notification immediately after becoming aware of the incident. Immediate means without delay in the practical sense. Where the PCBU becomes aware on site, the notification should be made from the site. Where the PCBU becomes aware at head office through a call from site, the notification should be made from head office as soon as the call ends.

Notification is by telephone to the 24-hour SafeWork NSW incident line. The details required are enough to identify the workplace, the PCBU, and the nature of the incident.

The 48 hour written notice - conditional only

Section 38(4)(b) requires written notice to be given only within 48 hours of receiving a request from the regulator. That written notice is NOT automatic; it is triggered by the regulator's request.

That is different from the widely misunderstood industry position that the 48 hours runs from the incident. TradeForm NSW templates flag the correct position to avoid confusion.

Site preservation

Section 39 requires the PCBU to ensure the site is not disturbed until an inspector arrives or authorises otherwise, except to:

• assist an injured person
• remove a body
• make the site safe
• comply with a police or emergency direction

The preservation obligation runs from the time of the notifiable incident until the inspector attends or gives permission to resume. That preservation period can extend for hours or days depending on the incident.

Record-keeping

Section 38(5) and regulations require the PCBU to keep a record of the notifiable incident for at least 5 years. The record must include enough detail to identify the incident, the parties involved, the response taken and any subsequent investigation.

Officer accountability

Officer due diligence under section 27 includes ensuring notification and record-keeping systems are in place. Failure by a corporate PCBU to notify is a potential officer prosecution alongside the corporate offence.

Penalties

Section 38 offence carries penalties up to $10,000 for an individual and $50,000 for a body corporate. That is a relatively low penalty compared with category 1-3 offences but strict liability makes it a common regulatory infringement point.

How NSW compares

NSW section 38 aligns with QLD, WA, SA, TAS, ACT and NT sections 38 in the model WHS Act. Victoria has its own section 38 OHS Act 2004 framework with broadly similar but not identical requirements.

The distinctive NSW feature is the 24-hour SafeWork NSW incident line and the clear regulatory guidance on the immediate telephone notification model. TradeForm NSW templates walk builders through the section 38 notification process and the conditional 48-hour written notice.