Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697641725573.pdf (Australia)
SENATE REFERENCES COMMITTEE ON EDUCATION AND EMPLOYMENT INQUIRY INTO THE ROLE OF COMMONWEALTH, STATE AND TERRITORY GOVERNMENTS IN ADDRESSING THE HIGH RATES OF MENTAL HEALTH CONDITIONS EXPERIENCED BY FIRST RESPONDERS, EMERGENCY SERVICE WORKERS AND VOLUNTEERS SUBMISSION OF THE DEPARTMENT OF JOBS AND SMALL BUSINESS The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 Contents Introduction ............................................................................................................................................ 3 The role of the Commonwealth Government ........................................................................................ 4 Commonwealth work health and safety laws ........................................................................................ 4 Work health and safety duties ............................................................................................................ 5 Duty of persons conducting a business or undertaking.................................................................. 5 Duty of workers ............................................................................................................................... 6 Offences and penalties ....................................................................................................................... 6 Duty to consult .................................................................................................................................... 7 Anti-bullying provisions in the Fair Work Act ......................................................................................... 8 Scope of the provisions ....................................................................................................................... 8 Who is a worker?
............................................................................................................................ 8 What behaviour constitutes workplace bullying?

.......................................................................... 9 Which workplaces are constitutionally covered businesses?
......................................................... 9 Specific exclusions ......................................................................................................................... 10 Remedy ............................................................................................................................................. 10 Interaction with WHS laws and workers’ compensation .................................................................. 10 Commonwealth workers’ compensation scheme ................................................................................ 10 Conclusion ............................................................................................................................................. 13 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 Introduction 1.
The Commonwealth Department of Jobs and Small Business (the department) welcomes the opportunity to make a submission to the References Committee on Education and Employment Inquiry into the high rates of mental health conditions experienced by first responders, emergency service workers and volunteers (hereafter collectively referred to as ‘first responders’).

2.
First responders in the Commonwealth jurisdiction may include: fire fighters from Airservices Australia; crisis response workers from the Department of Foreign Affairs and Trade; • police officers of the Australian Federal Police; • • • Defence personnel when deployed for disaster relief; and • people involved in providing first response or emergency assistance that are ‘declared’ under the Safety, Rehabilitation and Compensation Act 1998 (Cth) to be employees of the Commonwealth for the purposes of workers’ compensation laws, some of which may be volunteers within the context of this inquiry.1 3.
The work of our first responders is invaluable and they carry out their roles with professionalism, courage and dedication to keep us safe.

In return, and in all cases, it is important that they are given the highest level of protection from harm.

4.

First responders are, however, in a unique situation where they could be exposed to challenging, distressing and even violent situations in their everday work.

This can have a profound effect on mental and physical health.
As the Committee has noted, first responders experience a high rate of mental health conditions.

The serious workers’ compensation claim rate for first responders is four times higher than for all other occupations.

A serious claim is defined by Safe Work Australia as an accepted workers’ compensation claim that involves one or more weeks away from work and excludes all fatalities, and all injuries and diseases experienced while travelling to or from work or while on a break away from the workplace.
The most common cause of serious workers’ compensation claims for first responders is mental stress.2 5.

While the trauma inherent in this work environment often cannot be completely eliminated, it would be wrong to accept pyschological harm as ‘part of the job’ for first responders.

Commonwealth work health and safety (WHS) laws require every effort to be made to manage the health and safety risks associated with this type of work.
No task is so important that it cannot be done safely and no other industry would accept a risk as ‘part of the job’ without first taking serious steps to eliminate or minimise the risk so far as reasonably practicable.

If an injury has occurred, it is important injured workers are supported and are given assistance to remain in or return to safe and sustainable work.

It is also widely accepted by industry that returning to work quickly and safely benefits both the employer and the employee.

6.
6.

1 See, for example, F2008L01552 that declares members of the urban search and rescue team sent in response to the May 2008 earthquake in Sichuan, China to be employees of the Commonwealth for the purposes of workers’ compensation laws.

2 First Responder Fatalities and Injuries, Safe Work Australia Infographic, 2017.

3 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 The role of the Commonwealth Government 7.
This submission addresses the role of the Commonwealth Government in ensuring effective and robust laws and policies are in place to manage WHS risks to first responders, specifically risks to their mental health, and also to rehabilitate and compensate employees who are harmed by their work.

8.
8.

This focus aligns with the department’s responsibility for administering the following portfolio legislation: • the Work Health and Safety Act 2011 (Cth) (the WHS Act), which is the principal Commonwealth Act for WHS; the anti-bullying provisions of the Fair Work Act 2009 (Cth) (the Fair Work Act); and the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act), which is the principal Commonwealth Act for workers’ compensation.

• • Commonwealth work health and safety laws 9.


In July 2008, the Commonwealth, state and territory governments of Australia committed, through the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety, to harmonise their WHS regulation through the adoption and implementation of model WHS laws by 1 January 2012.

10.
10.

The National Review into Model Occupational Health and Safety Laws (the National Review) was conducted in 2009 to make recommendations on the optimal structure and content of a model WHS Act that was capable of being adopted in all jurisdictions.

11.

Safe Work Australia developed a single set of model WHS laws to be implemented across Australia.
The model WHS laws are comprised of a model principal act, supported by model regulations and model codes of practice, and complemented by a nationally consistent approach to compliance and enforcement.

12.

For the model WHS laws to become legally binding, the Commonwealth, states and territories must separately implement them as their own laws.

All Australian jurisdictions except Victoria and Western Australia have implemented the model WHS laws.
Victoria has similar laws in place and Western Australia is consulting stakeholders with a view to aligning its laws with the model WHS laws.

13.

The model WHS laws, for the first time in occupational health and safety legislation, included an express reference to ‘psychological health’ under the definition of health.

This made it clear that mental health, just like physical health, is an important part of WHS.

14.

The Commonwealth implemented the model principal Act by the enacting the WHS Act.

15.
The department’s position is that, through the WHS Act, the Commonwealth government has established an appropriate legal framework to protect first responders from psychological harm by: • ensuring the management of work-related mental health risks is a key responsibility under the Act (see section on Work health and safety duties below for further details); 4 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 • promoting compliance with WHS duties by putting appropriately significant penalties in place for any breach of duty (see section on Offences and penalties below for futher details); and • providing for fair and effective workplace representation, consultation, cooperation and issue resolution in relation to health and safety (see section on Duty to consult below.)
Work health and safety duties Duty of persons conducting a business or undertaking 16.

Persons conducting a business or undertaking (PCBUs) have the primary duty of care for WHS under the WHS Act.

They must ensure the physical and mental health and safety of workers while they are at work, wherever they work and whatever work they do.

17.

This requires PCBUs to eliminate WHS risks so far as is reasonably practicable.
If this is not reasonably practicable, these risks must be minimised so far as is reasonably practicable.

18.

We note that while it is not possible to eliminate all possible risks to health and safety, particularly in hazardous work environments such as those experienced by first responders, there remains an obligation to minimise the risk as far as is reasonably practicable.

19.
Reasonably practicable can be measured objectively by giving consideration to: • The likelihood of the hazard or risk occurring; • The degree of harm that may result from the hazard or risk; • What the person concerned knows, or ought reasonably to know, about: o o the hazard or risk; and the ways to eliminate or minimise the risk; • The availability and suitability of ways to eliminate or minimise the risk; and • Lastly, the cost associated with the available ways to eliminate the rest, including whether the cost is grossly disproportionate to the risk.
20.

This risk management approach requires PCBUs to be actively involved in identifying, assessing and controlling work hazards that may affect the physical and/or psychological health and safety of workers.

Common psychological hazards include workplace bullying, work-related stress, work-related violence and work-related fatigue.

21.

This duty includes the provision of a safe and healthy work environment and safe systems of work.
In relation to mental health this may mean, for example: • setting realistic workloads and timeframes; • avoiding excessive or prolonged work pressures; • ensuring workers have some level of control over the way in which work is to be done; • providing workers with well-defined roles and clear expectations; • allocating sufficient resources and training to staff so they are able to perform their role confidently and competently; • actively monitoring workers for any signs of work-related stress; • having suitable planning, management and communication processes in place when undergoing organisational change; • providing systems for workers to raise concerns and report unreasonable behaviour; and 5 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 • developing a culture that supports workers to recognise mental health issues in themselves and others and seek help early.
22.
This duty works well in the context of addressing mental health issues for first responders for the following reasons: • it is qualified by what is reasonably practicable and recognises that it may not be possible for a PCBU to eliminate all of the risk factors first responders will be exposed to while at work (in particular, the unique challenge of regular exposure to trauma that goes with these roles); and it provides flexibility to PCBUs in terms of what controls are put in place to manage risks by not prescribing a particular course of action for addressing work-related mental health risks.
• 23.

As an employer, the Commonwealth is actively working to met its own duty to manage work- related mental health risks for its employees, including first responders, through measures such as: • Employee Assistance Programs; • agency specific mental health and wellbeing strategies; and • mental health training frameworks for employees.

Duty of workers 24.
Duty of workers 24.

Under the WHS Act, workers have a duty to take reasonable care for their own health and safety while at work and to take reasonable care so that their acts or omissions do not adversely affect the health and safety of other persons at the workplace.

25.
25.

Workers must also comply, so far as they are reasonably able to, with any reasonable instruction that is given by the PCBU to allow compliance with the Act and co-operate with any reasonable policy or procedure relating to WHS that has been notified to them.

26.

In relation to mental health this may mean, for example: • working to job descriptions to avoid role conflict; • • following workplace policies to prevent bullying and harassment; and complying with safe systems of work.

27.
27.

This duty works well in the context of addressing mental health issues for first responders for the following reasons • • it recognises that workers also need to take steps to protect their own mental health and wellbeing, including seeking help when required; and it places a reasonable limit on a PCBU’s duty to manage risks to a worker’s mental health, such as in situations where a worker has more control over or knowledge and understanding of the risks to their mental health.
o For example, this may be the case where a worker fails to notify a PCBU of an existing mental health condition and their inability to cope with their work.

Offences and penalties 28.

The relevant regulator for the WHS jurisdiction is responsible for ensuring compliance with the WHS law, through effective and appropriate compliance and enforcement measures.

Comcare is the WHS regulator in the Commonwealth jurisdiction.
6 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 29.

The WHS Act provides for the following three categories of criminal offences for breaches of health and safety duties.

Category 1 – a duty holder, without reasonable excuse, engages in conduct that recklessly exposes a person to a risk of death or serious injury or illness.
Category 2 – a duty holder fails to comply with a health and safety duty that exposes a person to risk of death or serious injury or illness.

Category 3 – a duty holder fails to comply with a health and safety duty.

30.

The penalties for these offences differ depending on the category of the offence and whether the offender is an individual (e.g.

a worker, or a PCBU), an officer (as defined) or a body corporate.

The most serious (Category 1) offence attracts the highest penalties.

31.
31.

The offence and penalty provisions work well in the context of addressing mental health issues for first responders because they are based on the degree of culpability, risk and harm associated with the breach and not on the actual consequence or outcome of the breach.

32.

The maximum penalties for each of these offences is set out in the table below.
Type Order Information Corporation Individual as PCBU or officer Individual as worker or other Category 1 $3 million $600 000, five years in jail or both $300 000, five years jail or both Category 2 $1.5 million $300 000 Category 3 $500 000 $100 000 $150 000 $50 000 33.
In addition to criminal prosecution for a breach of health and safety duties, regulators may use notices to ensure compliance with WHS laws: • Improvement notices can direct a person as to specific measures on how to remedy or prevent a contravention.

• Prohibition notices can direct a person not to carry on an activity, or not to carry on an • activity in a specified way, until an identified risk has been remedied.
Infringement notices can impose an immediate sanction for particular contraventions of the WHS Act or regulations.

Duty to consult 34.

The WHS Act requires multiple duty holders to consult, cooperate and coordinate activities to ensure workers and others directly affected by the conduct of work are given the highest level of protection from harm.
When implemented appropriately, the duty to consult with other PCBUs recognises the practical reality that duty holders’ work activities may overlap and interact at particular times.

7 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 35.

For first responders, the operation of this duty has a direct impact on their safety.
It promotes information sharing between duty holders, minimises duplication of effort, and assists in managing shared risks and hazards.

36.

The model WHS laws also include a requirement for duty holders to consult with workers.

This means that PCBUs cannot unilaterally decide how WHS matters will be managed at a workplace but must instead give workers a reasonable opportunity to express their views and contribute to decision-making.

37.
37.

This requirement recognises that those who carry out work will generally have the greatest understanding of the hazards and risks involved with the work and whether or not the control measures to be implemented are likely to be effective.

38.

The consultation requirement, combined with the ability for workers to cease unsafe work, enable workers to get involved in WHS issues in the workplace.

Anti-bullying provisions in the Fair Work Act 39.


Workplace bullying is a specific mental health risk to first responders, with Safe Work Australia reporting that many of these workers experience bullying as a routine part of their work.3 Common outcomes for bullied workers include depression, psychological distress and emotional exhaustion4.

40.
40.

On 1 January 2014, Part 6-4B was inserted into the Fair Work Act to establish a right of recourse for a worker to apply to the Fair Work Commission (FWC) for an order to stop workplace bullying.

41.

Through these anti-bullying provisions, the Commonwealth Government has afforded first responders with a mechanism to have their claims of workplace bullying heard and resolved by an external third party at a relatively low cost (and an order made where there is a risk of future workplace bullying).
The jurisdiction has also provided further protection from mental harm caused by workplace bullying by: • establishing a clear, consistent legal definition of workplace bullying for employers and • workers alike; and increasing awareness and understanding of what behaviour does and does not constitute workplace bullying.

Scope of the provisions 42.

Section 789FD defines when a worker is bullied at work for the purposes of Part 6-4B and sets out the scope of the right of recourse to the FWC.
Who is a worker?

43.
For the purposes of Part 6-4B, a ‘worker’ has the same meaning as in the WHS Act and is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a 3 https://www.safeworkaustralia.gov.au/doc/infographic-workplace-bullying-and-violence 4 https://www.safeworkaustralia.gov.au/bullying 8 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 volunteer.
Under section 789FC(2), members of the Australian Defence Force are specifically excluded from this definition.

What behaviour constitutes workplace bullying?

44.

Section 789FD provides that a worker is ‘bullied’ at work if an individual (or group of individuals) repeatedly behaves unreasonably towards them and that behaviour creates a risk to their health and safety.

Reasonable management action carried out in a reasonable manner does not constitute bullying.

45.
45.

The types of behaviour that the FWC has found to constitute workplace bullying within the meaning of section 789FD include belittling and humiliating conduct5, swearing, yelling and use of otherwise inappropriate language6, threats of violence7, engaging in criticism or defamatory gossip8, acting in a hostile and aggressive way9, and making inappropriate comments.10 Which workplaces are constitutionally covered businesses?

46.
46.

Section 789FD provides that a worker is bullied at work if bullying occurs while the worker is at work in a ‘constitutionally covered business’.
A ‘constitutionally-covered business’ is a person conducting a business or undertaking (PCBU) (within the meaning of the WHS Act) where either: • the PCBU is: the Commonwealth; o a constitutional corporation; o o a Commonwealth authority; o a body corporate incorporated in a Territory; or the business or undertaking is conducted principally in a Territory or Commonwealth place.

• 47.
• 47.

All workers can apply to the FWC for an order to stop bullying unless they are engaged by the following types of entities: • unincorporated businesses such as sole traders and partnerships (unless in a territory); • volunteer associations (whether incorporated or not) that do not employ anyone; • most State public service departments and agencies; and • most State government business enterprises and entities that are not characterised as constitutional corporations.
5 Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556; CF [2015] FWC 5272 6 CF [2015] FWC 5272 7 CF [2015] FWC 5272 8 Ms Nadia Page [2015] FWC 5955 9 Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556 10 Roberts v VIEW Launceston Pty Ltd as trustee for the VIEW Launceston Unit Trust T/A View Launceston; Ms Lisa Bird; Mr James Bird [2015] FWC 6556 9 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 Specific exclusions 48.
Consistent with the WHS Act, the right of recourse to the FWC for an order to stop workplace bullying is specifically limited to ensure it does not unreasonably interfere with Australia’s defence, national security or covert or international law enforcement action.11 Remedy 49.

Where the FWC is satisfied that a worker has been bullied at work and there is a risk that the worker will continue to be bullied at work, it may make any order it considers appropriate under section 789FF.
Any order made by the FWC must be directed towards preventing the worker from future workplace bullying.

50.

Orders may require, for example: the individual or group of individuals to stop the specified behaviour; regular monitoring of behaviours by an employer; compliance with an employer’s workplace bullying policy; the provision of information and additional support and training to workers; or • • • • • a review of the employer’s workplace bullying policy.

51.
51.

The only prohibition under section 789FF is on the FWC making orders for payment of a pecuniary amount.

That is, the FWC cannot order that monetary compensation be paid to a worker.

Interaction with WHS laws and workers’ compensation 52.
The FWC anti-bullying provisions can be utilised in parallel, prior or subsequent to remedies sought under WHS laws (see section 789FH) and workers’ compensation claims related to workplace bullying can be lodged, processed, accepted or dismissed without affecting any application made to the FWC for a stop bullying order.

Commonwealth workers’ compensation scheme 53.

The department also has policy responsibility for the SRC Act, which establishes the Commonwealth workers’ compensation scheme.

54.
54.

In addition to its role as the WHS regulator, Comcare’s responsiblilites under the SRC Act include: • administering and regulating the Commonwealth’s statutory framework for rehabilitation • and workers’ compensation; supporting workforce participation and productivity through healthy and safe workplaces; and • working with employers to minimise the impact of harm in workplaces, and to facilitate return to work and recovery at work.

55.
55.

The SRC Act also establishes the Safety, Rehabilitation and Compensation Commission (the Commission).

The Commission is the statutory body that carries out regulatory functions in 11 See sections 789FE(2) and 789FI-FL of the Fair Work Act 2009 10 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 relation to Comcare and other authorities that determine workers’ compensation claims under the SRC Act.

56.
56.

The SRC Act applies to employees of: • Commonwealth Government agencies and statutory authorities; • Australian Capital Territory (ACT) Government agencies and authorities; and • Corporations that hold a licence to self-insure and manage claims under the SRC Act.

57.

The Commonwealth’s workers’ compensation scheme covers first responders in the Commonwealth, including certain employees of the Australian Federal Police, Airservices Australia and the Department of Foreign Affairs and Trade.
Defence personnel are covered under military specific compensation schemes.

58.

In some circumstances, the Australian Government has extended coverage under the SRC Act to people belonging to a specific class declared by the Minister.

This has included persons providing first response or emergency assistance on behalf of the Commonwealth both domestically and internationally, for example, persons involved in the Indonesian tusnami response in 2004.

59.
59.

The SRC Act provides rehabilitation and compensation to employees who suffer a work-related injury or disease, including psychological injury.

60.

Compensation may include medical expenses, incapacity payments, household services and attendant care services.

Compensation for reasonable medical treatment is payable for as long as such treatment is reasonably required.
Incapacity payments can be paid until the Age Pension qualifying age or, in certain cases, for a period of up to two years afterwards.

61.

Rehabilitaiton under the SRC Act may include providing structured activities and services under a rehabilitaiton program to assist an injured employee to stay at, or return to, work and to maintain or improve their ability to undertake activities.
The SRC Act may also require that an injured employee is provided with suitable employment or help finding suitable employment.

62.

The Australian Government is committed to improving workers’ compensation arrangements to help injured workers recover and return to work.

The Government wants to ensure the Commonwealth’s workers’ compensation arrangements support evidence-based approaches to medical treatment and injury management.

63.
63.

Since the SRC Act commenced in 1988, the environment in which workers’ compensation is delivered has changed.

Medical and scientific advances and improvements in industry regulation mean that the SRC Act is out of step with best practice and current national health regulatory frameworks.

64.

Studies show that work is good for health and wellbeing, and recovery rates improve when an injury is treated early.
Research shows that an injured employee who is off work for 20 days has a 70 per cent chance of returning to work.

This reduces to 50 per cent after 45 days, and 35 per cent after 70 days.

For psychological injury, early intervention can reduce the impact of mental health problems and mental illness12.
12 National Mental Health Policy 2008; 2.4 Early Intervention, available at: http://www.health.gov.au/internet/publications/publishing.nsf/Content/mental-pubs-n-pol08-toc~mental- pubs-n-pol08-2~mental-pubs-n-pol08-2-4, accessed 8 December 2017.

11 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 65.
However, the SRC Act does not provide effective incentives for employers to facilitate early and effective return to work, and there are no early intervention measures.

This may delay access to medical treatment and rehabilitation for injured employees.

66.

In 2015, the Government introduced a Bill that included amendments to ensure a stronger focus in the SRC Act on early intervention, rehabilitation and return to work13.
This followed a review of the SRC Act undertaken in 2012 by Mr Peter Hanks, which made a series of recommendations to modernise and improve the operation of the Act14.

67.

The Senate Education and Employment Legislation Committee recommended that the Senate pass the Bill15.

The Bill did not receive adequate support and lapsed when Parliament prorogued on 15 April 2016.

68.
68.

The Government remains committed to ensuring the Commonwealth’s workers’ compensation arrangements support evidence-based approaches to medical treatment and injury management.

69.
69.

The department has been consulting extensively with stakeholders including unions, legal practitioners, health practitioners, self-insured licensees, Commonwealth agencies, Comcare and the ACT Government on proposed changes to workers’ compensation arrangements that would focus on early intervention and vocational rehabilitation.

70.
The proposed changes focus on early and effective rehabilitation and would ensure: • timely access to compensation, upfront assessment of compensation needs and timely decisions so that claims are processed faster and disputes resolved earlier; • workers are provided with early access to medical treatment before a claim is determined to ensure they get treatment at the critical stage of their injury; • medical treatment and support is provided by registered or accredited professionals to • • support return to work; the aim of rehabilitation to return or maintain a worker in suitable employment is clear; that no worker is left without support and employers are responsible for providing rehabilitation and suitable employment to their workers; and • development of workplace rehabilitation plans is simple and employers would be required to consult with all relevant parties.
71.

These changes would benefit all employees who suffer a workplace injury, whether it is a physical or mental injury, and ensure that no worker is left without appropriate support.

A timeframe for introduction of amendments to reform the Comcare scheme has not been announced at this stage.
13 Safety, Rehabilitation and Compensation Amendment (Improving the Comcare Scheme) Bill 2015 14 Safety, Rehabilitation and Compensation Act Review report, available at: http//docs.jobs.gov.au//system/files/doc/other/src_act_review_report.pdf 15https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/Improvi ng_Comcare_Scheme/Report 12 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82 Conclusion 72.
The department submits that the Commonwealth’s WHS laws provide an effective and appropriate framework to address the high rates of mental health conditions of first responders and is committed to workers’ compensation reform.

73.

The fact that the rates of mental health conditions are high for these workers does not mean that these laws, in and of themselves, are deficient.
Other key factors such as workplace cultures, how an organisation implements these laws through their own policies and practices, and the enforcement of these laws must be taken into account in any assessment of the reasons for these rates.

74.

Consideration could, however, be given to whether the existing definition of a serious illness or injury in section 36 of the WHS Act is sufficient for the purposes of ensuring serious psychological illnesses and injuries are reported to regulators.
The department raised this issue in its submission to the 2018 review of the model WHS laws16.

75.

Currently, psychological injury or illness, including incidents of workplace violence, would only constitute a serious injury or illness for the purposes of section 36, and therefore be a notifiable incident under section 35, if it required a person to have immediate treatment as an in-patient in a hospital or medical treatment within 48 hours of exposure to a substance.
In order to reduce compliance burdens on duty holders it could be useful to specify that only serious psychological injuries be notified as this would help to ensure an appropriate level of information capture, reporting and analysis.

76.
76.

The approach of defining illness and injury by setting a threshold level of medical intervention or incapacity before notification is required (for example, non-attendance at work for a period of days) may work better in this regard than specifying the types of illness or injuries that must be notified.

This approach had formed the basis of incident notification provisions in several jurisdictions prior to the introduction of the model WHS laws.
16 https://engage.swa.gov.au/32134/documents/78536 13 The high rates of mental health conditions experienced by first responders, emergency service workers and volunteersSubmission 82