Notifiable Incidents Under the OHS Act 2004 (Vic): When You Must Notify WorkSafe
Notifiable incidents are one of the few areas of occupational health and safety law where there is no discretion.
Under Part 5 – Duties Relating to Incidents of the Occupational Health and Safety Act 2004 (Vic), employers and self-employed persons have immediate, prescriptive legal obligations when a notifiable incident occurs at a workplace under their management or control.
If the legal trigger is met, the duty applies.
What Is a Notifiable Incident Under the OHS Act 2004?
A notifiable incident is a serious workplace event that must be reported immediately once the employer becomes aware of it.
The OHS Act captures three broad categories of notifiable incidents.
1. Death
Any death arising out of, or in connection with, work.
2. Serious injury
Including (but not limited to):
amputation
serious head or eye injury
serious burns
loss of bodily function
injury requiring immediate hospital admission
3. Dangerous occurrences
Incidents that expose a person to a serious risk to health or safety — even if no injury occurs.
Guidance from WorkSafe Victoria confirms that dangerous occurrences can include plant and equipment failures and certain near-miss events, where a person was exposed to serious risk.
The Three Mandatory Duties (Section 38 – WorkSafe Victoria Notification)
Once a notifiable incident occurs, three separate legal duties apply.
1. Immediate notification
You must notify WorkSafe Victoria immediately after becoming aware that a notifiable incident has occurred.
“Immediately” means as soon as practicable.
It does not mean after internal investigation, management approval, or legal advice.
2. Written notification within 48 hours
A written notification must be provided within 48 hours, using the approved form.
This is a separate legal duty.
Verbal or phone notification alone is not sufficient.
3. Preservation of the incident site
The incident site must not be disturbed, except to:
assist an injured person
remove a deceased person
make the site safe
prevent a further incident
Disturbing the site for clean-up, production, or convenience can itself be a breach of the OHS Act.
⚠️ What Does “Serious Risk” Actually Mean?
WorkSafe Victoria does not assess notifiable incidents based on what happened.
It focuses on what could realistically have happened.
A serious risk exists when both of the following are present:
the incident had the potential to cause death, serious injury or serious illness, and
there was a real chance the risk could materialise (not remote or trivial)
Why this matters:
An incident can still be notifiable even if:
no one was injured
it was a near miss
work stopped in time
If the exposure was real, the duty to notify may apply.
⏱️ Immediate vs Imminent Exposure
WorkSafe Victoria guidance uses two closely related concepts when assessing notifiable incidents.
Immediate exposure
A person was exposed to serious risk at the time of the incident.
Example: a falling object narrowly misses a worker.
Imminent exposure
A person was about to be exposed to serious risk.
Example: plant fails moments before a worker enters the area.
Both immediate and imminent exposure can trigger notification — even if no injury occurred.
Plant and Equipment Incidents (Including Near Misses)
A common compliance gap is treating plant failures as maintenance issues.
From 1 July 2024, additional plant and equipment incidents must be notified where an incident immediately or imminently exposes a person to a serious risk due to:
collapse
overturning
failure or malfunction
damage
Injury is not required.
The compliance test is risk exposure, not outcome.
Notifiable Incident Penalties in Victoria
Failing to comply with Section 38 — including notification, written reporting, or record-keeping — is an offence in its own right.
Using the current Victorian penalty unit value of $203.51 (1 July 2025 to 30 June 2026):
Natural person
240 penalty units
= $48,842.40Body corporate
1,200 penalty units
= $244,212.00
The offence is indictable, reflecting the seriousness of notifiable incident duties.
What Businesses Should Have in Place
To comply with Part 5 of the OHS Act, businesses should ensure they have:
clear notifiable incident definitions aligned to the Act
explicit triggers for plant and equipment incidents
a 24/7 escalation pathway
delegated authority to notify WorkSafe Victoria immediately
incident reporting systems that flag notifiable criteria early
These are baseline compliance controls, not optional extras.
FAQs: Notifiable Incidents and WorkSafe Victoria
-
Yes. The duty is triggered by awareness, not certainty. If unsure, report it.
-
Yes, if the incident exposed a person to a serious risk through immediate or imminent exposure. -
No. You must notify and preserve the site first, then investigate.
-
The employer or self-employed person. The task can be delegated, but the responsibility cannot.
-
The Act allows very limited circumstances. Administrative delay, internal approvals, or uncertainty are not valid reasons to delay notification.
-
After WorkSafe is notified, they assess the information provided and determine the appropriate response. This may include no further action, a request for additional information, or attendance at the workplace. Inspectors will typically look at what occurred, what risks were present, and whether the employer has commenced or completed a documented incident investigation and implemented appropriate controls so far as is reasonably practicable. Clear records and timely investigation support due diligence and demonstrate proactive compliance.
Bottom Line
Notifiable incident duties under the OHS Act 2004 (Vic) are prescriptive, immediate, and enforceable.
If the trigger is met:
Notify WorkSafe Victoria immediately. Preserve the site. Submit the written notification within 48 hours.
No discretion. No delay.
