By Nicki Milionis and Yasmine Sahihi
On 2 August 2024, Safe Work Australia announced that the Work Health and Safety (WHS) ministers had accepted recommendations to revise the incident reporting framework of the model WHS Act, including in relation to notification of psychosocial hazards and psychological harm.[1] At the time of writing, the relevant communique from the Work Health and Safety Ministers’ Meeting was not available.
While the specific provisions have not been released, Safe Work Australia said that the changes are intended to provide PCBUs with more clarity and to address key gaps in notification requirements, and to ensure that “…WHS regulators have appropriate visibility of work-related psychological injuries and illnesses”.
The notification changes relating to psychosocial hazards[2] include:
- Requiring the immediate notification of a work-related (or suspected work-related) suicide or attempted suicide of a worker where there are indicators which suggest a potential link to the work or work environment;
- Capturing violent incidents arising out of the conduct of the business or undertaking that may not result in a serious physical injury or illness triggering notification, but that exposes a worker or other person to a serious risk to a person’s physical or psychological health and safety; and
- Capturing serious work-related injuries and illnesses of 15 or more consecutive calendar days due to psychological or physical injury arising out of conduct of the business or undertaking.[3]
Safe Work Australia’s Consultation paper on WHS incident notification issued in July 2023[4] (Consultation Paper) provides context for how some of the proposed changes may be reflected in amending legislation.
The Consultation Paper proposed several options for expanding the notification and reporting framework under the model WHS Act relevant to psychosocial risks:[5]
- Periodic reporting of periods of incapacity for work: Introduce a six-monthly reporting requirement for periods of incapacity from normal work lasting 10 or more consecutive days due to work-related psychological or physical injuries.
- Periodic reporting of certain types of psychosocial hazards (Bullying and Harassment and exposure to trauma): Introduce a periodic reporting requirement (six-monthly) of complaints or instances of bullying, including sexual harassment, that may not put workers at risk of serious risk or require immediate WHS regulator notification, but which if repeated, frequent or prolonged, may put workers at risk of serious injury. Reporting also of exposure to traumatic events which arise out of the conduct of the business or undertaking (such as serious injuries, fatalities or instances of abuse or neglect).
- Immediate notification of attempted suicide, suicide and other deaths: Require immediate notification for suicide, attempted suicide or psychological harm arising out of the conduct of the business or undertaking by:
- amending guidance material to clarify that ‘death of a person’ in the definition of ‘notifiable incident’ is to include the death of a person by any means due to work-related psychological harm where “…any reasonable suspicion that work may have contributed would trigger notification”: section 35(a);
- amending the definition of ‘notifiable incident’ to specifically capture suicide of a worker and attempted suicide, whether or not it arose out of the conduct of the business or undertaking.
- Immediate notification of workplace violence: Require immediate notification (de-identified) of a sexual assault, a serious physical assault, the deprivation of a person’s liberty, and an express or implied threat of serious violence, arising out of the business or undertaking and exposes a worker to a serious risk to a person’s health and safety.
While the details remain to be seen, Safe Work Australia will work with the Parliamentary Counsel’s Committee to draft the amendments which it says are expected to be finalised by early 2025. Changes to the model WHS Act will only take effect once they are incorporated into the WHS laws of the respective jurisdictions.
As these reforms take shape, they underscore the need for PCBUs to be vigilant about psychosocial hazards and reflect increased regulatory scrutiny over psychosocial hazards arising out of the conduct of a business or undertaking.
[1] Recommendations agreed to improve incident notification provisions, Safe Work Australia, 2 August 2024: https://www.safeworkaustralia.gov.au/media-centre/news/recommendations-agreed-improve-incident-notification-provisions.
[2] Other changes to incident notification requirements will also be made, as discussed in our upcoming WHS Briefing.
[3] Incident notification requirements under the model WHS Act, Safe Work Australia: https://www.safeworkaustralia.gov.au/safety-topic/managing-health-and-safety/incident-notification/incident-notification-requirements-under-model-whs-act.
[4] Public input on the proposals for change to the incident notification system was sought during a consultation period held from 28 July to 11 September 2023.
[5] See Consultation on options to improve WHS incident notification, Safe Work Australia: https://consult.swa.gov.au/whs-incident-notification-consultation.