Proposed reforms to workplace incident notification obligations

Overview

Australia's workplace safety laws could see significant changes as Safe Work Australia (SWA) seeks submissions regarding incident notification obligations. The proposed changes could expand the types of incidents that are required to be reported to regulators, and mandate regular reporting of complaints such as workplace bullying and traumatic events. SWA is seeking public submissions and feedback on these proposals until 11 September 2023.

A link to the consultation paper can be found here.

Existing notification requirements not addressing all incident types

SWA's consultation paper follows its 2021-22 review of the incident notification provisions under the model Work Health and Safety (WHS) Act. Part of this review included examination of the incident notification regime currently in place. Part 3 of the current model WHS Act defines a notifiable incident as:

• the death of a person
• a serious injury or illness of a person, or
• a dangerous incident

that has arisen out of the conduct of the business or undertaking of the person conducting the business or undertaking (PCBU).

A key issue identified in the consultation paper is that Part 3 of the WHS Act is primarily focused on the occurrence of physical harm or risk of physical harm. The review found that this created "specific gaps in the coverage of the current incident notifications provisions". Risks considered to be not adequately captured include:

• injuries and illnesses that emerge over time or are not immediately evident; and
• psychosocial and psychological hazards such as sexual harassment or bullying, and mental health issues.

New reporting obligations to meet the identified gaps

The reforms being proposed create reporting obligations in respect of psychological injuries and risks. These include attempted suicide, suicide, and deaths linked to psychological harm stemming from business conduct. Workplace violence creating serious psychological health risks including assault, sexual assault, and threats would also be added to the list of notifiable incidents under the proposals being considered.

Further proposed changes include the introduction of periodic reporting to regulators about complaints of workplace psychological hazards, such as bullying, harassment and workplace violence. Under the proposed changes, duty holders would need to submit reports to the relevant regulator every six months providing details about workers incapacitated for over ten days due to psychiatric injury, traumatising events, or instances of workplace bullying or harassment. These changes are similar to those proposed under the pending changes to the Occupational Health and Safety Regulations 2017 in Victoria.

The discussion paper also proposes broader notification requirements for long latency diseases, incidents involving large mobile plant, workplace falls, and head injuries.

How will these changes affect you?

Ultimately, even if SWA proposes changes to the incident reporting obligations under the Model Work Health and Safety Act, it would be up to individual states and territories to enact those changes to their respective WHS Acts.

If enacted, the proposed changes will expand the types of incidents and injuries that duty holders are required to notify to the relevant safety regulator (i.e. SafeWork NSW). This will result in increased regulatory awareness of psychosocial hazards in workplaces, and a likely increase in investigative and enforcement action, because of notification.

Want to make a submission?

As noted, SWA is seeking feedback on these proposals from interested stakeholders until 11 September 2023.

If you would like advice on whether you should make a submission and what your submission should include, or advice on how these changes may affect you or your business, please contact Lander & Rogers.