In September I posted about the review of the nation model work health and safety (WHS) laws. The review was completed and on December 5 the Model WHS Act was amended. This blog lists some of the key changes, which mainly involve notifiable incidents and injuries, i.e. those incidents that need to be reported to the Regulator. Note that these changes are to the model legislation and are not enforceable unless adopted by each jurisdiction.
Under section 4 of the model Act there are new terms inserted for ‘notifiable extended absence’, ‘notifiable suicide’, ‘relevant occurrence’ and ‘violent incident’.
‘Notifiable extended absence’ is further defined in section 35A as being absent from work for 15 or more consecutive days, or in the opinion of a medical practitioner will potentially be away from work for 15 or more days. The absence needs to be ‘reasonably attributable’ to a physical or psychological injury/illness arising from work. Absence from work is currently already detailed in Western Australia’s WHS Act under section 36 and includes being unable to do your normal work for 10 days or more.
‘Notifiable suicides’ are inserted as section 35B and include a death, suspected or attempted suicide occurring when the person is not on leave, is at their workplace or work-related accommodation, or is wearing their workplace uniform or is the result of exposure to a workplace psychosocial hazard.
Some further changes have also been made to serious injuries and illness under section 36. For example, under section 36 (1) (a) and (b) the requirement to report injuries is not based on if medical treatment is provided but if it is required. Therefore, it is not dependant on whether the treatment was available or sought after at the time of the injury.
Also under section 36 is further clarification on what includes a spinal injury, bone fracture and serious head injury.
Mobile plant incidents and serious falls have been included in section 37 ‘Dangerous Incidents’. Mobile plant includes any plant designed to move or be moved, either autonomously or under the direct or remote control of an operator. A mobile plant incident includes such events as overturning, loss of control, collision, pinning a person or a person being thrown from the plant.
Serious falls include any fall from one level to another, into a body of water or onto a dangerous object or surface.
‘Violent incidents’ are added in to section 37A and include a sexual assault or suspected sexual assault, a physical assault, a threat of physical or sexual assault or deprivation of liberty.
Section 39A has been inserted and requires PCBU’s to notify other duty holders immediately after being made aware of being required to ‘activate’ their duty, e.g. notify the regulator of an incident or preserve an incident scene etc.
Under section 27 ‘Duties of Officers’, the examples of due diligence have been updated to not only report notifiable incidents, but now also to report extended absences and suicides
As Western Australia is currently under our own review of the WHS Act, it will be interesting to see if any of these changes are also accepted in this state. The public consultation phase of the Western Australian review ended on November 28. A final report with recommendations is expected to be tabled in the Western Australian Parliament in late 2026.