OHS in 2022: what should be on your radar

New inspector powers and increased requirements for notifying incidents

New laws are coming requiring the notification of incidents that were not previously notifiable, following the introduction of the Workplace Safety Legislation and Other Matters Amendment Bill 2021 to the Parliament.

The Bill expands the range of incidents that WorkSafe Victoria must be notified of under s 37 of the Occupational Health and Safety Act (OHS Act).

Currently, near misses that expose a person in the immediate vicinity to an immediate risk to their health or safety arising from specified incidents are required to be notified to WorkSafe: OHS Act s 37(2).

If the Bill is passed, near misses that expose a person to a serious risk to their health or safety emanating from an immediate or imminent exposure to an expanded list of incidents, including electric shock, will need to be reported. This proposed change will result in a lower threshold for the reporting of near misses.

Further, the Bill seeks to clarify that prescribed illnesses, and not only prescribed injuries, will be notifiable.

There are also changes coming which extend the circumstances in which an inspector may issue a prohibition notice and give oral or written directions to people at a workplace. Currently, an Inspector has the power to issue a prohibition notice or to give directions where the inspector considers that there is an immediate risk to the health and safety of a person. However, if passed, the Bill will extend the circumstances for issuing a notice to where an inspector believes that there is a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard. This threshold aligns with the revised language proposed for the notification of incidents.

These changes will, if enacted, allow WorkSafe inspectors to prohibit or issue directions relating to certain activities which do not pose an immediate risk, yet could still lead to serious health and safety consequences. These changes are also capable of applying to cumulative risk activities, such as those activities which can cause exposure to crystalline silica and can lead to serious life-long illnesses.

What this means for the public sector

Should the Bill be passed, public sector employers (including Departments and agencies representing the Crown) will need to revise their notification processes to ensure that previously unreported incidents are included in new reporting requirements. This may also require some training for people leaders, so that they are aware of the changes.

This is important because a failure by an employer to report a notifiable incident at a workplace under its management or control is a criminal offence which attracts significant financial penalties, up to maximum of approximately $218,000 in respect of a body corporate (which includes the Crown).

Psychosocial Regulations

The second development to look out for in 2022 is new regulations containing specific requirements about how employers are required to control certain risks to the mental health of employees.

This change follows the issue by Worksafe Victoria, earlier this year, of a secondary consultation paper on this topic. WorkSafe sought stakeholder views about the following aspects of the proposed health regulations in respect of psychosocial hazards:

• the definition of psychosocial hazard
• how to control risks to psychological wellbeing in the workplace
• an obligation to maintain records.

The development of the proposed regulations follows several recent reviews which recommended strengthening workplace health and safety laws to better address workplace psychological health, including the:

• Review of Model Work Health and Safety Laws (the Boland Review)
• Respect@Work Report
• Productivity Commission’s Inquiry into mental health.

We expect that, consistent with the approach being adopted by other States and Territories, Psychosocial Regulations will be introduced during 2022.

What this means for the public sector

The changes are intended to ensure that psychological hazards are on the same footing as physical hazards in the workplace – recognising that they can be just as harmful to workers’ health and safety. WorkCover mental injury claims have grown in number significantly in recent years and are expected to account for one third of all workers’ compensation claims by 2030.

Once the Regulations are enacted, there will be a need for public sector employers to revise policies applicable to the control of psychosocial risks. Employers should also prepare for an increase in the number of workplace visits by WorkSafe inspectors in relation to mental health. This aligns with the strategy announced by WorkSafe for 2022.

A pillar of the WorkSafe strategy is to 'Deliver multifaceted prevention interventions, including compliance and enforcement activities to address underlying causes of mental injury…. This work will include a focus on addressing system-level psychosocial risks across government, healthcare, and social assistance industries. It will also involve working collaboratively with lead organisations to increase engagement and drive cultural change'.

Increasing enforcement focus on government sector

In 2021, there have been several well-publicised health and safety prosecutions of Victorian Public sector entities (including the Crown).

The scope for further scrutiny of the public sector is significant, especially in view of s 131 of the OHS Act. Many of the investigations and prosecutions in 2021 have arisen from requests made to WorkSafe under that provision, which provides for any person to request an investigation and prosecution by WorkSafe, in circumstances where the person considers that there has been an offence committed under the OHS Act and that a prosecution has not been commenced.

What this means for the public sector

We expect that the increase in enforcement action against public sector entities (including the Crown) will continue and WorkSafe will continue to treat public sector duty holders in the same way as it would treat duty holders who are underperforming in the private sector.

It is critical that Victorian Public Sector employers have effective systems in place to manage records because, in most investigations, WorkSafe compels the production of documents in order to assess the discharge of applicable duties. An effective records managements system will significantly reduce the administrative burden on organisations in the event that an investigation is commenced, and documents are called for. Particular pressure points that we have identified in our work in 2021 include:

• the ability of organisations to retrieve records of inspections, maintenance and repairs to plant and equipment
• effectively managing version control of documents, so as to ensure that applicable versions of policies and procedures are easily retrieved and provided to WorkSafe, if necessary.

This is significant because, if records are not able to be identified and produced, WorkSafe may infer that a policy or procedure was not in place or that a system was not maintained.

Contact our team

The VGSO's OHS Team is available to assist Victorian Public Sector organisations with any OHS related matters, including responding to OHS incidents, WorkSafe notices, investigations and prosecutions. The VGSO also conducts OHS training. For further information please contact:

Craig Newton
Managing Principal Solicitor
0429 223 635
craig.newton@vgso.vic.gov.au