Safe Work Australia's Intention to change Incident Reporting: Navigating the Proposed Changes - Kingston Reid

Safe Work Australia’s Intention to change Incident Reporting: Navigating the Proposed Changes

In a bid to strengthen Workplace Health and Safety (WHS) standards, Safe Work Australia has introduced a consultation paper outlining a range of suggested amendments to incident reporting obligations. These changes are aimed at enhancing the visibility of workplace incidents for WHS regulators. However, while the proposed amendments to incident reporting are no doubt well-intentioned, they risk imposing undue administrative burdens on businesses and overburdening safety regulators. This is especially concerning given that the businesses and regulators are still coming to grips with how to effectively manage psychosocial risks and the skill sets required to do so.

Below we set out the proposed changes and the number of variables proposed in each notification approach.

Proposed Change 1 – Periodic Reporting of Incapacity Periods

Currently, incident notification for psychological injuries is only required in cases of death, immediate hospitalisation, or dangerous incidents. For physical injuries, incidents necessitating immediate treatment are also covered.

What Could Change?

Safe Work Australia proposes amending the model WHS legislation to introduce periodic reporting every six months of incapacitation periods lasting ten or more consecutive days due to work-related psychological or physical injuries, illnesses, or harm.

This change would require a person conducting a business or undertaking (PCBU) to assess whether a worker’s illness or injury resulted from the conduct of the business or undertaking. The consultation paper suggests potential evidence that may aid this determination includes:

  • Specific events leading up to the worker’s absence;
  • Reports from supervisors; or
  • Self-reporting by workers.

Proposed Change 2 – Attempted Suicide, Suicide, and Other Deaths

Currently, suicide or death due to psychological harm is reportable. A suicide attempt ‘arising from the conduct of the business or undertaking’ requires notification when the person needs immediate treatment as an inpatient in a hospital or immediate treatment for specific injuries.

What Could Change?

Option 1: Suicide and other Worker deaths

Safe Work Australia proposes clarifying guidance material to encompass the death of a person from:

  • Suicide due to psychological harm arising from business operations;
  • Other deaths resulting from exposure to psychosocial hazards linked to business activities (e.g., heart attack from work stress); and
  • Suicide of a person in a workplace with an identified suicide risk.

Option 1 also includes amending guidance material to provide examples of circumstances and evidence indicating that psychological harm contributing to a person’s suicide may have arisen from the business or undertaking’s conduct. Examples include:

  • Occurring while the worker is ‘at work,’ in the workplace, or at a place associated with work (e.g., worker accommodation);
  • Evidence of a direct link to work (e.g., notes, testimonies);
  • History of exposure to psychosocial hazards at work (e.g., traumatic events, reports of bullying, prolonged high job demands, or fatigue);
  • Worker had a work-related psychological injury or illness; and
  • Recent difficulties at work.

Option 2: Suicide of a Worker whether or not death arises from conduct of PCBU

A second option suggests broadening the definition of a notifiable incident to include a worker’s suicide, regardless of whether the act arises from business operations. This would eliminate the need for PCBUs to speculate on the potential causes of the suicide. Upon a suicide occurring, a PCBU would be required to promptly report the incident to the WHS regulator.

Option 3: Attempted Suicide of a Worker stemming from business activities

A recommendation revising incident notification provisions to mandate immediate reporting by PCBUs to WHS regulators upon becoming aware of an attempted suicide stemming from business activities.

Under this change, notification would be required when a reasonable suspicion exists that the attempt resulted from severe or prolonged exposure to psychosocial hazards at work. Notification would only be necessary where the attempt posed a high risk of death or serious injury. PCBUs would not need to notify if that threshold was not met.

Option 4: Attempted Suicide of a Worker

This recommendation requires notification of attempted suicide by workers, irrespective of whether the attempt arises from the conduct of the business or undertaking. This approach would eliminate the need for PCBUs to speculate on the potential causes of the attempted suicide.

Proposed Change 3 – Reporting Workplace Violence

Currently, reporting workplace violence is only mandatory if it leads to death, immediate hospitalisation or treatment, or results in illness requiring medical attention within 48 hours.

What Could Change?

Safe Work Australia proposes amending the model WHS legislation to mandate immediate notification to the WHS regulator for cases of serious workplace violence and threats. Immediate notification would be required for incidents such as:

  • Sexual assault: Non-consensual sexual behaviour that is threatening or violent, occurring within the context of the business or undertaking;
  • Serious physical assault: Instances of assault with a weapon or physical harm;
  • Deprivation of liberty: Situations where a person’s freedom is restricted or denied by another individual; and
  • Threat of serious violence: Express or implied threats causing genuine fear of death, serious sexual assault, or severe injury.

These proposed changes would be triggered by verbal, written, or otherwise communicated threats of serious violence, posing an immediate or imminent serious risk to health and safety. Excluded would be threats where the person making the threat lacks capability or intent to carry it out or where the threat does not involve serious violence.

Optional Add-On: Tailored Reporting Arrangements

Another facet of these changes is the optional inclusion of allowing WHS regulators to approve alternative reporting arrangements for certain PCBUs. This aims to offer reporting flexibility for industries with high incident volumes, where immediate reporting to the WHS regulator may be unfeasible.

Proposed Change 4 – Periodic Reporting of Exposure to Traumatic Events

Current provisions only require notification of notifiable fatalities, serious injuries, or dangerous incidents arising from business activities with a focus on physical harm, rather than psychosocial risks.

What Could Change?

Safe Work Australia proposes amending the model WHS legislation by introducing a new requirement for PCBUs to periodically report to the WHS regulator on exposures to serious injuries and fatalities, as well as instances of abuse or neglect likely to be experienced as traumatic by workers or others. This would encompass exposures to situations, materials, and reports.

Optional Add-On: Tailored Reporting Arrangements

An optional add-on recommends allowing alternative reporting arrangements for certain PCBUs to reduce administrative burden (such as first responders).

Proposed Change 5 – Periodic Reporting of Bullying and Harassment

Current incident notification provisions only capture bullying and harassment where it results in the person requiring immediate treatment for a serious injury (e.g. the person is physically assaulted).

What Could Change?

Option 1: Unreasonable Behaviours

This option suggests amending the model WHS legislation to mandate periodic reporting (every six months) of de-identified data related to complaints or instances of:

  1. Repeated and unreasonable behaviour (bullying) towards a worker or group of workers; and
  2. Unreasonable behaviour towards a worker(s) that a reasonable person would consider abusive, aggressive, offensive, humiliating, intimidating, victimising, or threatening, including sexual harassment or harassment of any kind.

Option 2: Bullying, Sexual Harassment, and Harassment on Protected Grounds

Similar to option 1, this option proposes amending the model WHS legislation to mandate periodic reporting every six months, focusing on complaints or instances of:

  1. Workplace bullying – repeated, unreasonable behaviour towards a worker(s) or group of workers;
  2. Workplace sexual harassment of a worker(s); and
  3. Workplace harassment of a worker(s) based on protected characteristics (e.g., race, sex, gender, sexual orientation, age, disability).

Proposed Change 6 – Reporting of Long Latency Disease

Current incident notification provisions focus on immediate effects of substance exposure, such as injuries or illnesses requiring treatment within 48 hours. Dangerous incidents cover serious risks from uncontrolled substance exposure. However, these arrangements allegedly do not cover long latency diseases that may appear years after exposure.

What Could Change?

Safe Work Australia is soliciting feedback on how reporting on long latency diseases could be conducted. Although no specific proposal has been presented, it appears that four options are under consideration:

Option 1: Record and Report Latent Disease Exposures

Introduce a mechanism to record and report exposure to hazardous substances leading to long latency diseases.

Option 2: Enhance Exposure Monitoring

Explore advanced technologies beyond air and health monitoring to provide real-time data on substance exposure levels for a more accurate understanding of potential risks.

Option 3: Reporting Exceedances of Exposure Standards

Incorporate a requirement for PCBUs to record and report instances where the workplace exposure standard is exceeded.

Option 4: Broadening Statement of Exposure Records

Extend the requirement to maintain records of exposure documents to include substances known to cause long latency diseases for a comprehensive WHS approach.

Proposed Change 7 – Reporting Serious Head Injuries

Presently, serious head injuries are reported based on specific criteria, including the need for “immediate treatment.” Concerns have arisen that this provision may not sufficiently cover head injuries that worsen over time.

What Could Change?

Option 1: Broaden the Definition of Serious Head Injury

Amend the model WHS legislation to broaden the definition of “serious head injuries” without requiring “immediate treatment.” This change would empower PCBUs to determine the severity of the head injury, providing a more comprehensive reporting framework. Guidance materials would aid PCBUs in identifying reportable cases.

Option 2: Include Suspected Serious Head Injury

Amend the model WHS legislationto include “suspected serious head injuries” requiring immediate treatment. This modification would identify cases where the injury’s severity may not be immediately evident but necessitates urgent care. The existing threshold of “immediate treatment” would remain.

Option 3: Clarify the Concept of Immediate Treatment

Clarify the concept of “immediate treatment” for serious head injuries to ensure it is not perceived as limited to surgical interventions. Use an “incapacity period” to capture injuries worsening over time and leading to work incapacity.

Proposed Change 8 – Reporting Incidents Involving Large Mobile Plant

Presently, dangerous incident provisions cover plant collapse, malfunction, or damage posing a significant health and safety risk. Safe Work Australia has identified that dangerous incidents involving mobile plant, such as collisions, overturning, or loss of control, are not reported unless they meet specific criteria (e.g., resulting in fatality or serious injury).

What Could Change?

Amend the dangerous incident provisions in the model WHS Act to require immediate notification of powered mobile plant malfunction or loss of control exposing individuals to a serious health and safety risk. This provision would specifically cover incidents listed under Regulation 214 of the model WHS Regulations, including overturning, entrapment, collisions, and roll-aways. Clear guidance material would accompany the provision to offer comprehensive examples and ensure accurate reporting.

Proposed Change 9 – Capturing the Fall of a Person

Interestingly, Safe Work Australia has found that the current provisions relating to falls from height do not encompass the fall of a person unless the incident results in a fatality or serious injury, or involves another notifiable dangerous incident. Current provisions primarily relate to the risk of objects falling from a height rather than the fall itself.

What Could Change?

Amend the dangerous incident provisions in the Model WHS Act to include the fall of a person exposing individuals to a serious health and safety risk. This would cover falls into holes, pits, trenches, crevices, and bodies of water.

Other Proposed Changes

Causal Link Principle: Amend the model WHS Act to emphasise the ‘causal link principle’, requiring incidents to relate to the business or undertaking’s conduct. This aims to prevent the notification of non-work-related incidents.

Objective Test: Amend incident notification provisions to explicitly reflect that the test for serious injury or illness is objective. This change ensures consideration of whether the injury or illness could reasonably warrant medical treatment, regardless of actual administration. This clarification aims to guide PCBUs in applying the objective test.

Clearer Description of Terms: Amend guidance material to provide clearer descriptions of terms such as ‘immediate treatment,’ ‘inpatient,’ and ‘hospital.’ This will enhance PCBUs’ understanding of notification requirements, even in situations where treatment is not immediately administered or in a conventional hospital setting.

Loss of Bodily Function: Enhance guidance to provide better understanding of the injuries and illnesses encompassed under this category.

Medical Treatment for Exposure to Substances: Contemplate expanding the ‘medical treatment’ definition to include health professionals beyond doctors. This would reflect the broader range of professionals, like paramedics and registered nurses, providing urgent treatment after substance exposure.

Exposure to Human Blood and Body Substances: Offer improved guidance to PCBUs regarding notifications required for exposures to human blood and body substances.

Infections and Zoonoses: Provide prominent information on these requirements to enhance compliance and reporting accuracy.

Simplifying Dangerous Incident Provisions: Consider amendments to simplify dangerous incident provisions while preserving policy intentions.

Improving Reporting of Electrical Hazards: Amendments to better capture incidents involving electrical hazards, such as electric shock, electrical explosion, and arc flash explosion.

Mutual Duty to Notify: Introduce a mutual duty for PCBUs and individuals with workplace management or control to notify each other upon becoming aware of notifiable incidents.

What do these changes mean for businesses?

The consultation period for feedback to Safe Work Australia closes on 11 September 2023, which does not leave businesses significant time for considering the proposed changes and raising any concerns.

The current incident reporting framework, outlined in the model WHS legislation, mandates that a PCBU must notify the safety regulator of specific incidents, including deaths, serious injuries or illnesses, and dangerous incidents. That current notification framework applies to incidents which arise out of the conduct of the business or undertaking at a workplace.

Safe Work Australia’s proposed amendments in relation to clarifying existing reporting obligations are welcome. However proposed amendments to psychosocial risk incident reporting seek to introduce language which is, in a number of respects, ambiguous and open for interpretation. For example, some proposed changes have a link to the workplace, for example, using language such as “work related”, “arising from business operation” and “linked to business activities”. As has been apparent from the current notification requirements, there are many incidents where it is not clear if there is a link to the workplace. This raises issues of who will ultimately assess whether these incidents are notifiable, and what are those persons’ skills or qualifications in assessing them to be e.g., their particular expertise in assessing psychosocial risks.

Other proposed changes by Safe Work Australia do not require any link to the workplace and are purely event based. This appears at odds with the general obligations in the model WHS legislation which require a causal link to the business or undertaking.

Other changes, for example in relation to workplace violence, require notifications in all cases. It is unclear whether any regulatory impact has been undertaken to assess how such notifications will impact a situation where, for example, an incident investigation is yet to have commenced or be completed and the alleged perpetrator is to be given due process whilst the investigation is undertaken. This is even more significant when external authorities such as the police may have become involved and are investigating a criminal offence.

Without clear and unambiguous regulatory guidance (which has not been developed and which needs to be provided so that PCBUs can consider the impacts) the proposed changes may lead to confusion and complexity for workplaces. Implementing the proposed changes will undoubtedly place significant administrative burdens on PCBUs, strain safety regulator resources, and divert focus from immediate safety concerns. Policymakers should carefully consider the efficacy of the current framework, necessary guidance and evaluate potential consequences before introducing unnecessary changes.

It will be important for employer representative associations and organisations to consider the proposed changes on behalf of their employer members and provide advocacy on potential impacts before any changes are legislated.

John Makris
Partner
+61 2 9169 8407
[email protected]…………………………
Liam Fraser
Partner
+61 7 3071 3113
[email protected]
Erica Elliott
Special Counsel
+61 2 9169 8409
[email protected]

 

Sarah-Jayne Rayner
Senior Associate
+61 7 3071 3122
[email protected]
George Stent
Lawyer
+61 2 9169 8421
[email protected]