In July 2023, Safe Work Australia released a consultation paper on options to improve incident notification under the model WHS laws. Consultation closes on 11 September 2023.
Extending incident reporting scope
The options under consideration seek to significantly extend the types of incidents that businesses must notify to a safety regulator. The options capture some of the current position in Western Australia and the Australian Capital Territory and some earlier proposals in Victoria (which are not yet in operation and remain under consideration).
The key options proposed are as follows:
- Requiring 6 monthly reporting of periods of incapacity from normal work for ten or more consecutive days due to a psychological or physical injury, illness or harm arising out of the conduct of the business or undertaking
- Broadening the types of deaths and attempted suicides that are reportable to a safety regulator, including arising from exposure to work stress and in some cases, whether or not the suicide or attempted suicide arose out of the conduct of the business
- Requiring immediate notification of sexual assault, serious physical assaults, deprivation of liberty or an express or implied threat of serious violence arising out of work
If introduced, these changes will fundamentally change the nature and type of incidents that are required to be reported to safety regulators. The changes will require corresponding updates in internal incident management frameworks and preparation for additional safety inspectorate attendance and involvement within Australian businesses. Currently the ACT is the only Australian jurisdiction that has a requirement for PCBU's to report workplace sexual assault to WorkSafe ACT. The requirement only commenced in June 2023.
Currently WA is the only Australian jurisdiction that has a requirement for PCBUs to immediately notify the regulator of incidents that, in a medical practitioner's opinion, are likely to prevent the person from being able to do the person’s normal work for at least 10 days. This arguably establishes a comparatively low threshold for reporting. Some PCBUs have indicated the '10 days' requirement is often quite difficult to apply consistently given the uncertainty often arising as to when potentially reportable illnesses and injuries actually occur. This application can be particularly difficult with respect to psychological illnesses or injuries.
Other uncertainties arising from WA's definition of 'reportable incident' include:
- those arising from opinions of medical practitioners often not being sufficiently detailed for the relevant PCBU to decide whether it has a duty to report;
- what it means to be unable to perform a person's normal work; and
- the lack of a requirement for the 10 days to be consecutive.
Navigating complex implications and considerations
Some of these uncertainties would be mitigated by the proposed Safe Work Australia option, including 6 monthly reporting (rather than immediate), and the explicit reference to the 10 days being consecutive.
Some concerns expressed at this early stage about the options proposed by Safe Work Australia mirror concerns expressed in response to a Victorian proposal to make similar amendments to incident notification and 6-monthly reports in the context of psychosocial work health and safety risks. Feedback received during the consultation process on the proposed Victorian psychosocial regulations is currently being considered and it is not clear whether these requirements will be included in the new regulations, once made.
Finally, some of the options considered related to notification of cases involving sexual assault raise complex issues related to how organisations can ensure they also prioritise the needs, values and preferences of complainants who may have concerns about notification of such incidences to safety regulators. Recent Australian Human Rights Commission Guidelines discussed in our Respect@Work: Positive duty guidance launched update adopt, as a guiding principle, a person-centred and trauma-informed approach to address relevant unlawful conduct and to meet people’s needs in the workplace with these complexities in mind.
Organisations who wish to have a say need to do so by 11 September 2023.
If you need any assistance in managing incident notifications or making submissions to Safe Work Australia, please contact a member of our Work Health and Safety team.