Safe Work Australia has announced the next step towards changes to the incident notification framework under the model work health and safety (WHS) laws. The changes have been anticipated for some time and follow a review of the framework which found there was an opportunity to improve the coverage and operation of the provisions.
A key focus of the changes is to expand the framework to capture psychosocial hazards and related psychological injuries and illnesses. The next step is for amendments to the model WHS laws to be drafted, which are expected to be released early next year.
Background
Last year, Safe Work Australia published a Consultation Paper – WHS Incident Notification which sought feedback on options to improve the coverage and operation of the relevant provisions.
Currently, the incident notification framework under the model WHS laws requires a duty holder to notify their respective regulator of a death, serious injury or illness and dangerous incident. The options in the Consultation Paper were in response to recognised gaps in the framework, including that it does not accommodate the notification of injuries or illnesses that may develop over time nor exposure to hazards that pose a serious risk to health and safety if exposure is repeated or frequent.
The opportunity to respond to the Consultation Paper closed on 11 September 2023.
On 2 August 2024, Safe Work Australia announced the changes that will be taken forward. The changes reflect the recommendations to improve the incident notification framework to which the government ministers responsible for WHS have agreed. According to the media release, the changes will provide clarity for existing provisions and address the gaps in the current framework, particularly in relation to notifying for psychosocial hazards and psychological harm [1].
What changes are on their way to the model WHS laws?
The changes include:
- clarifying how to apply the ‘causal link principle’ which requires duty holders to only notify incidents if they have arisen out of the conduct of the business or undertaking because incidents that are not work-related or do not otherwise meet this threshold continue to be notified [2];
- expanding the framework to require persons conducting a business or undertaking to notify other persons conducting a business or undertaking that a notifiable incident has occurred. In the Consultation Paper, this option arose in the context of multiple duty holders on site and a person with management or control having site preservation obligations [3]; a person with management or control cannot fulfil these obligations if they are not aware that a notifiable incident has occurred [4];
- clarifying notification requirements for incidents involving the fall of a person, electrical hazards and mobile plant (which will likely be through amending the definition of ‘dangerous incident’) [5];
- requiring notification of violent incidents arising out of the conduct of the business or undertaking that exposes one or more persons to a serious risk to their physical or psychological safety;
- requiring notification of a worker’s absence (or anticipated absence) from work for a period of 15 or more consecutive calendar days due to physical or psychological injury, illness or harm; and
- requiring notification of work-related suicides and attempted suicides of workers. This requirement will not be informed by the ‘causal link principle’ as stated above but instead, by whether there are indicators suggesting that there is a link to work or the work environment.
In the Consultation Paper, a number of other options had been canvassed (including periodic reporting for certain types of ‘incidents’, e.g., complaints or instances of unreasonable behaviour that exposes a worker(s) to a risk to their health and safety) yet many of these do not appear to be moving forward. The details however will be known once the amendments have been released, which is expected early next year. These amendments to the model WHS laws will not have effect in any jurisdiction until they are adopted by the respective governments in each jurisdiction and implemented in their own laws.
Key takeaways
Changes to the incident notification framework under the model WHS laws are on their way, which in turn, (given all government ministers responsible for WHS have agreed to the above), will result in changes across the jurisdictions.
The extent of the changes will not be known until the amendments have been released. As we have often seen though, each jurisdiction can choose to implement a variation of the amendments and for some this may be necessary as there are jurisdictions which already have broader incident notification frameworks aimed at psychosocial hazards and related psychological injuries and illnesses.
When the changes are announced in the jurisdictions, duty holders will need to review, consider and likely adjust their internal arrangements for incident notification, including any with other duty holders.
Ultimately, with changes to the incident notification framework comes a likelihood that incident notifications will increase, providing greater visibility to regulators of what is occurring at the workplace.
[1] ‘Recommendations agreed to improve incident notification provisions’, Safe Work Australia (2 August 2024).
[2] Page 42 of the Consultation Paper.
[3] When a notifiable incident has occurred, the person with management or control of the workplace is required to ensure, so far as is reasonably practicable, that the site where the incident has occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs: section 39, model WHS laws.
[4] Page 47 of the Consultation Paper.
[5] Pages 38, 40 and 46 of the Consultation Paper.
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The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.