Unpacking the ‘notably comprehensive’ model WHS laws amendments

The national work, health and safety regulator has confirmed anticipated changes to the incident notification framework under the model WHS Act, which one law firm said will add “increased complexity” for employers.

Earlier this month, Safe Work Australia published amendments to the model Work Health and Safety (WHS) Act and Regulations, following approval by WHS ministers.

Under the updated model WHS Act, released on Friday, 5 December, notification duties owed by employers have been expanded to include: instances of “violent incidents”, which will include sexual assault and physical assault; “notifiable suicides”, including suspected suicides or attempted suicides; and “notifiable extended absences”, which will include absences that can be reasonably attributed to a physical or psychological injury or illness where the worker has been absent for 15 or more consecutive days.

Moreover, the duty to preserve the scene of a notifiable incident to require an employer to also preserve the evidence of the occurrence, including electronic and digital records and witness details, has also been expanded.

The above changes have only been made to the model WHS laws, which are not enforceable. For these changes to be enforceable, they need to be incorporated into legislation.

Speaking to HR Leader, partner John Makris and special counsel Kate Curtain at national law firm Kingston Reid said that movement on these changes is not expected until the new year.

“In considering whether these changes are incorporated in a jurisdiction, consideration would need to be given to each jurisdiction’s existing incident notification framework, as these are not all harmonised nationally,” the pair said.

This said, the challenges are likely to present real challenges for employers, they noted.

As these changes come into effect, they went on, employers will need to “update the systems of work covering incident notification within the business, including the internal reporting frameworks which aid the identification of such occurrences at the workplace; and consider the need for wide communications within the business to ensure there is awareness of the types of occurrences that have become notifiable to ensure the employer complies with its duty”.

The definitions for “violent incidents”, “notifiable suicides” and “notifiable extended absences”, Makris and Curtain observed, are “notably comprehensive”.

So much so, they said, that Safe Work Australia has published a fact sheet and 65-page handbook to accompany the changes.

“The release of this guidance material, particularly the handbook, is indicative of the increased complexity associated with the changes to the incident notification framework,“ they said.

“Employers already have to consider occurrences at the workplace and whether they are notifiable; with these changes, the number of occurrences that need to be considered is expected to increase.”

Makris and Curtain said they expect these changes to result in an increase in notifications by employers to work health and safety regulators, “and in turn, opportunities for the regulator to make inquiries”.

“This is another development supporting the need for employers to be prepared for inquiries concerning these types of matters,” they said.