Incident notification changes - Workplace Safety Legislation and Other Matters Amendment Act 2022

Overview

The Act includes three changes to incident notifications requirements:

• The incident notification threshold for incidents of the type listed under section 37(2) of the Occupational Health and Safety Act 2004 (OHS Act), where a person is not seriously injured, is changing from incidents exposing a person 'in the immediate vicinity to an immediate risk', to incidents exposing a person 'to a serious risk to the person's health or safety emanating from an immediate or imminent exposure to a hazard'.
• The amendments allow regulations to prescribe certain illnesses to be incidents for the purposes of incident notification provisions. Prescribed illnesses could include large-scale, infectious diseases posing a serious health risk, like COVID-19, serious illnesses acquired in workplaces, like silicosis, and, potentially, work-related transmissible diseases.
• Incidents relating to the collapse, overturning, failure or malfunction of, or damage to, plant will become notifiable if that plant is prescribed under regulations. The current provision that prescribed plant can only be used if licenced or registered is now outdated because Victoria no longer has a plant licensing regime.

'Serious risk' meaning

'Serious risk' is not a defined term in the OHS Act and, as a result, the plain or ordinary meaning of the word applies.

WorkSafe considers that the ordinary meaning of 'serious risk' is a 'significant risk, which has a real chance of materialising'. For an incident under section 37(2) to be considered a 'serious risk', it must have a real chance of immediately or imminently exposing a person to a risk to their health or safety.

WorkSafe considers that the term 'serious risk to the health or safety of a person' means:

1. that exposure to the incident created a risk which, if it had eventuated, could have resulted in death or a serious injury or illness of a person (seriousness of potential harm); and
2. the level of risk was not minor, in that there was a real likelihood of the risk eventuating (likelihood of incident occurring).

Both the potential seriousness of harm and the likelihood of harm occurring must be identified for an incident under section 37(2) to be considered a serious risk to the health or safety of a person.

Common activities posing a serious risk to a person's health and safety

A wide variety of activities can pose a serious risk to a person's health and safety but the level of risk is generally greatest in industries involving large-scale plant and machinery, such as extracting resources from underground and agriculture. The amendments will cover incidents like quadbike rollovers and tractor-related incidents.

Serious risk and immediate and imminent exposure meaning

Serious risk

'Serious risk' is not a defined term in the OHS Act and, as a result, the plain or ordinary meaning of the word applies.

WorkSafe considers that the ordinary meaning of 'serious risk' is a 'significant risk, which has a real chance of materialising'. For an incident under section 37(2) to be considered a 'serious risk', it must have a real chance of immediately or imminently exposing a person to a risk to their health or safety.

WorkSafe considers that the term 'serious risk to the health or safety of a person' means:

1. that exposure to the incident created a risk which, if it had eventuated, could have resulted in death or a serious injury or illness of a person (seriousness of potential harm), and

2. the level of risk was not minor, in that there was a real likelihood of the risk eventuating (likelihood of incident occurring)

Both the potential seriousness of harm and the likelihood of harm occurring must be identified for an incident under section 37(2) to be considered a serious risk to the health or safety of a person.

Immediate or imminent exposure

The terms 'immediate or imminent exposure (to an incident)' are not defined terms in the OHS Act. As such, the plain or ordinary meaning of the words applies.

WorkSafe considers that 'imminent' means 'likely to occur at any moment'. WorkSafe considers that 'immediate' means 'happening or done without delay'.

WorkSafe considers 'immediate exposure' to mean the person was exposed to a serious risk to their health or safety when the incident occurred, including where the person was not injured or where an illness may arise later due to exposure to the incident.

WorkSafe considers 'imminent exposure' to mean a person was or would have been exposed to a serious risk to their health or safety when the incident occurred. For example, a person would have been exposed to the risk even though they may not have been in the vicinity when the incident occurred because they were there prior to the incident, or ordinarily would have been in the vicinity or were nearby when the incident occurred.

What illnesses and items of plant are prescribed?

The Act does not list the illnesses or items of plant that will trigger a requirement to notify WorkSafe. WorkSafe is working to develop regulations prescribing illnesses and plant under these amendments. External engagement on these proposed regulations will occur now that the Act has received Royal Assent.

Those affected by the changes

Employers and self-employers persons will be required to notify WorkSafe of any incidents falling under the revised categories and which are prescribed in the proposed regulations that are currently under development.