Proposed 'expanded duty' to notify WorkSafe Victoria of additional 'near miss' incidents

Update: the proposed amendments to the requirements for ‘near miss’ incident notification and the threshold for issuing prohibition notices have received Royal Assent and commenced operation on 17 March 2022.

On 1 December 2021, the WorkSafe Legislation and Other Matters Amendment Bill 2021 (Bill) was introduced to the Victorian Legislative Assembly. If passed, the changes will take effect on a day to be proclaimed (or at the latest, 1 December 2022).

The Bill seeks to amend the notification provisions of the Occupational Health and Safety Act 2004 (Vic) (OHS Act) and to make minor process and timing changes for the internal review of WorkSafe decisions. The Bill also seeks to amend the Workplace Injury Rehabilitation and Compensation Act 2013 and other related legislation, primarily relating to silica exposure. However, this alert will focus on the proposed amendments to the OHS Act.  

While the proposed changes may seem significant, it appears only a very small sub-set of “near-miss” incidents or “dangerous incidents” that are not currently notifiable will become notifiable under the new provisions and incident notification in Victoria will largely be “business as usual”. 

Bringing the OHS Act notification provisions in line with the Model WHS Act: But will it change anything?

The OHS Act requires employers and self-employed persons (Employers) to notify WorkSafe immediately after becoming aware that a “notifiable incident” has occurred at a workplace under the management and control of the Employer. Failure to do so, constitutes an indictable criminal offence punishable by significant fines.

Section 37 of the OHS Act sets out the types of workplace incidents that must be notified to WorkSafe, including workplace deaths and incidents necessitating certain medical treatment. Currently, the OHS Act also extends notifiable incidents to include near miss type incidents that expose a person in the immediate vicinity of the incident to an immediate risk to that person’s health or safety.

If passed, the Bill will amend the OHS Act to bring the near miss category of notifiable incidents in Victoria in line with the approach for “dangerous incidents” in the Model Work Health and Safety Act (Model WHS Act).

This will require notification of near miss incidents where, regardless of whether a person is in the immediate vicinity of the incident, the happening of an incident or hazard gives rise to a serious risk to a person’s health and safety, emanating from an immediate or imminent exposure to a number of listed hazards.

Other than the inclusion of electric shock in the list of hazards and some minor amendments to the existing list, the list will otherwise remain unchanged (the list includes, for example, the collapse of an excavation, mine, structure or building and a collapse, overturning, failure or malfunction of certain plant).  

The Bill will also make changes to require Employers with the management or control of a workplace to notify WorkSafe of an illness of a person where that illness is prescribed by the regulations made under the OHS Act (currently: musculoskeletal disorders, and illnesses or diseases associated with exposure to crystalline silica dust or the use of lead).

Given the proposed change from the immediacy of risk and vicinity framework to a seriousness of risk and immediacy or imminence of exposure framework, consequential changes will also be made to provisions relating to the threshold for the issuing of prohibition notices and the giving of directions by WorkSafe inspectors, including the “assumption” provisions for the issuing of prohibition notices and directions relating to COVID-19.

Pre-existing notification requirements regarding COVID-19 remain in force

The proposed changes have no impact upon the notification requirements for work-related COVID-19 cases, introduced by temporary Regulations that took effect on 28 July 2020. The provisions continue to remain in place after being extended for a further 12 months in July 2021.

These notification requirements require Employers to notify WorkSafe immediately when they become aware that a worker (including contractors) has received a confirmed COVID-19 diagnosis and has attended the workplace in their infectious period (i.e. the 14 days prior to the onset of symptoms or a confirmed COVID-19 diagnosis until the date the person receives a clearance from isolation from the Department of Health and Human Services).

As we continue to see high infection rates in the “COVID normal” phase of the pandemic, Employers must remember that these notification obligations remain.

What does this mean for Employers?

If passed, Employers will be required to notify WorkSafe of incidents that expose a person to a “serious risk” to their health and safety emanating from an immediate or imminent exposure to one of the listed hazards. They will also be required to keep a record of these incidents.

Employers must therefore be aware of the expanded types of incidents and their duty (in the absence of a reasonable excuse) to immediately notify WorkSafe of those incidents. Penalties will apply for failure to notify.

These changes appear quite significant, given they do away with the immediate risk / immediate vicinity formula that health and safety practitioners in Victoria have become very familiar with over many years. However, the question must be asked: how many incidents will be notifiable under the proposed amendments that would not be notifiable under the current provisions?

The explanatory memorandum to the Bill explains that the OHS Act “does not currently capture near miss incidents that, but for a person not being in the immediate vicinity, would have given rise to an immediate or imminent and serious risk to a person's health or safety.” This is true. However, it is hard to think of many examples of incidents where a person would be placed at a serious risk to their health and safety arising from an immediate or imminent exposure to a hazard, unless they were in the immediate vicinity of the hazard or initial incident. The obvious exception is an immediate or imminent exposure to the release of hazardous substance or chemical, that only gives rise to a risk of injury at a later time (e.g. asbestos or silica).

It appears clear these amendments, other than bringing the Victorian provisions in line with the Model WHS Act, seek to close this gap relating to dangerous exposures, that might give risk to a serious risk to health and safety at a later point in time, which are currently not notifiable. However, if these changes are made, incident notification in Victoria will largely be business as usual.

The proposed changes serve as a timely reminder to ensure risk controls around worker exposure to hazardous chemicals and substances are appropriate, and that robust incident reporting and notification procedures are in place to ensure compliance with the OHS Act.