Compliance with Psychosocial Risk Obligations for Workplaces

Federal, state and territory governments are making changes to the regulation of employer obligations to ensure psychological health and safety in the workplace.

There is growing awareness of the significance of psychological hazards and injuries in the workplace. The latest Victorian Worksafe Annual Report (2022) shows that mental injury claims as a percentage of all new Workcover claims have increased to 15.1 per cent from 13.1 per cent in the previous year. The Report adds that by 2030 it is expected that a third of all injury claims will be mental injury claims.[1] Behind these statistics stand the potentially long term adverse impact of psychological harm on individuals and their families, causing significant economic and non-economic loss and damage.

Further, it has been recently reported that the Victorian government is concerned about the extent of claims for mental injury under the Workcover scheme and could be looking at ways to narrow the criteria for such claims.[2]

The list of workplace psychosocial hazards is endless, but the main hazards include bullying, harassment, violence, role overload, exposure to traumatic events, lack of role clarity, workplace  conflict, low job control, poor support from managers and supervisors, poor consultation, poor procedural fairness and inadequate reward and recognition.

As detailed below, most state and territory governments and the federal government have responded in similar ways to the challenge of psychological harm. Most have issued, or are considering, regulations that place specific obligations on a duty holder beyond the general health and safety obligations and, on breach, will expose the duty holder to criminal prosecution. Most governments have issued codes of practice which act as guidance to duty holders, and generally do not necessarily lead to prosecution if breached, but would inform a regulator or a court of relevant standards and may provide a defence to a defendant if the code is complied with.

Victorian response

The main health and safety obligations on Victorian employers in the workplace are set out in Division 2 of the Occupational Health and Safety Act 2004 (Vic) (OHS Act). In particular, sub-s21(1) requires that an employer “must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health”. Health is defined as including “psychological health” (s5). A breach of sub-s21(1) is an indictable offence, exposing a natural person to 1800 penalty units or a body corporate to 9000 penalty units.[3]
As such, under sub-s21(1), there is an existing obligation on employers to prevent psychological hazards and injuries. The imposition of regulations, which the Victorian government announced in May 2021 it would impose, would take that general obligation further and require Victorian employers to take specific action, or risk an enforcement response from Worksafe, including  prosecution.

In 2022 the Victorian government released the Occupational Health and Safety Amendment (Psychological Health) Regulations (Proposed Regulations) for consultation. The Proposed Regulations, if made, would amend the Occupational Health and Safety Regulations 2017 (Vic) “to strengthen the occupational health and safety (OHS) framework and provide clearer guidance to employers on their obligations to protect workers from mental injury”.[4]

Public consultation closed on 31 March 2022 with a proposed commencement date of 1 July 2022, but the Proposed Regulations have not been made by the Governor in Council as at the date
of writing. It is not clear whether they will be made in their current form, in some modified form or at all. The latest update states: “The Victorian government and WorkSafe are currently considering stakeholder feedback. Progress on the proposed regulations will continue in 2023”.[5]

The Proposed Regulations, if made in their current form, will impose the following key obligations on employers:

  • to identify psychosocial hazards so far as is reasonably practicable
  • to eliminate any risk associated with a psychosocial hazard so far as is reasonably practicable or, if not reasonably practicable, reduce the risk so far as is reasonably practicable
  • to review and if necessary revise any measures implemented to control risks associated with psychosocial hazards when triggered by specific circumstances
  • to put in place prevention plans (Prevention Plan) for identified psychosocial hazards involving aggression or violence, bullying, exposure to traumatic content or events, high job demands and sexual harassment. “High job demands” is defined as meaning sustained or repeated physical, mental or emotional effort which is unreasonable or frequently exceeds the employee’s skills or capacity
  • if the employer has 50 or more employees, periodically report to WorkSafe if they have received during the reporting period a complaint involving aggression or violence, bullying or sexual harassment.

Psychosocial hazard has a broad meaning and is defined as any factor or factors in:

  • the work design
  • the system of work
  • the carrying out of the work
  • personal or work-related interactions that may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety.

The Proposed Regulations provide examples – bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, high job demands, low job control, poor support, poor organisational justice, low role clarity, poor environmental conditions, remote or isolated work, poor organisational change management, low recognition and reward and poor workplace  relationships.

“Work design” is defined broadly as the equipment, content and organisation of an employee’s work tasks, activities, relationships and responsibilities within a job or role. The inclusion of  relationships” in that definition seems to cover not only hazards around structural hierarchy, but also hazards arising from particular persons working together – for example, a hazard could be two persons with incompatible personalities working together.

The Prevention Plan must:

  • be in writing
  • identify the risk associated with the psychosocial hazard
  • include measures to control the risk and how those measures will be implemented
  • detail the consultation undertaken by the employer

The specific duties under the Proposed Regulations would build significantly on the current general duties in Division 2 of the OHS Act and non-statutory guidance from WorkSafe.[6]This is likely to mean that a significant number of employers would need to be more actively engaged in the management of mental health risks in the workplace, which would include greater engagement and consultation with the workforce in managing those risks.

The Proposed Regulations also open the doorway to WorkSafe becoming more actively involved in its regulatory role of ensuring employers are meeting their duties to maintain mentally healthy and safe workplaces. If there are breaches of the Proposed Regulations, Worksafe would have the usual range of enforcement measures, including improvement and prohibition notices, requesting documents (including the Prevention Plan) and prosecution.

Different jobs encompass different psychosocial risk profiles, requiring different approaches and levels of support from employers. It is likely WorkSafe would produce guides to assist employers in meeting these new obligations, possibly on an industry or sector basis. Employers in the legal profession, as with other industries, would need to assess whether current approaches meet the requirements of the Proposed Regulations. There are known mental health hazards in the legal industry – extended hours, stressful work, bullying, sexual harassment, poor supervision, inadequate training and vicarious trauma[7] to name a few. In particular, an assessment would need to be undertaken to identify whether there are “high job demands” (as defined) or whether there is “exposure to traumatic content or events”, such as to require a Prevention Plan. It may well be that an employer in the legal profession assesses that their workplace does not have “sustained or repeated physical, mental or emotional effort which is unreasonable or frequently exceeds the employee’s skills or capacity” within the meaning of “high job demands” and therefore a Prevention Plan is not required on that basis. However, could that assessment be made universally across all work performed on all files on an ongoing basis? In any event, it is likely that in many legal workplaces there would be an “exposure to traumatic content or events” and therefore a Prevention Plan would be required. Regardless of that assessment, a Prevention Plan may well be a prudent measure, and with effective consultation, build knowledge and awareness of mental health hazards and their prevention among staff.

Rest of Australia response

Australian state and territory governments as well as the federal government, but not Victoria, have adopted the model Work Health and Safety Act to regulate health and safety in the workplace. Consistent with that uniform law, they have adopted a common approach to the management of psychosocial hazards with new Regulations (inserting a new Division 11 in Part 3.2 of their version of the model Regulations) and with the introduction of new codes of practice.

The changes made by the amendments to the model Regulations are similar to the Proposed Regulations. In effect, they adopt a similar risk management approach to managing psychosocial risks (apart from the application of the hierarchy of controls which is not required except in Queensland in the Commonwealth jurisdiction) but, as required by the Proposed Regulations, without the regulatory need for a Prevention Plan for certain high impact psychosocial risks and with no requirement to report.

The changes may be summarised as follows:

  • the federal government amended the Work Health and Safety Regulations 2011 (Cth) with effect from 1 April 2023 and issued a Code of Practice[8]
  • New South Wales amended the Work Health and Safety Regulation 2017 (NSW) with effect from 1 October 2022 and issued a Code of Practice[9]
  • Queensland amended the Work Health and Safety Regulation 2011 (Qld) with effect from 1 April 2023 and issued a Code of Practice[10]
  • Western Australia amended the Work Health and Safety (General) Regulations 2022 (WA) with effect from 24 December 2022 and issued a Code of Practice[11]
  • Tasmania amended the Work Health and Safety Regulations 2022 (Tas) with effect from 12 December 2022 and issued a Code of Practice[12]
  • Northern Territory amended the Work Health and Safety (National Uniform Legislation) Regulations 2011 with the amendments taking effect on 1 July 2023 and is understood to be finalising a Code of Practice based on the federal version
  • South Australia is reported to be “considering adopting the model code of practice and regulations for South Australian workplaces”[13]
  • the Australian Capital Territory has not amended its Regulations as yet or issued a Code of Practice but launched in October 2021 its Strategy for Managing Work-Related Psychosocial Hazards 2021-23.[14]

Conclusion

If they haven’t done so already, Australian businesses and employers need to familiarise themselves with the additional requirements added by changes to the Regulations in their jurisdiction in managing psychosocial hazards. In Victoria, it can be expected that formal changes will be announced soon, but the Proposed Regulations point to what the changes will be. Workplaces are likely to be initially challenged as they update training, systems and processes, all done in consultation with the workers. In the longer term, the changes will become embedded in health and safety  systems. Hopefully, it will lead to better workplaces and, most importantly, a decline in mental health injuries arising from the workplace.

This article was originally published in the Wellbeing Special Edition of the Law Institute Journal.

Our Let’s Talk program focuses on ensuring companies have prevention plans in place with solutions to reduce the impact of psychosocial hazards in all work environments and is relevant for all states and territories, regardless of differences in compliance requirements.

Become ISO 45003 Compliant

Let’s Talk prepares your organisation for ISO 45003 with the following components:

Psychosocial Risk Assessment: The Let’s Talk app is equipped with an adept feature that effortlessly identifies and scrutinises psychosocial hazards within a workplace. It’s an insightful tool, carefully crafted to gauge various aspects including workload management, harmonious work-life balance, and fostering positive interpersonal relationships at work.

Rich Educational Resources: A treasure trove of educational resources awaits users, offering a deep dive into the nuances of psychosocial hazards and strategies to mitigate them. Whether it be through enlightening webinars, podcasts or written materials, Let’s Talk is a reservoir of knowledge, with expertise steeped in the realms of organisational psychology and well-being science.

Encouraging Open Dialogue: Let’s Talk serves as a bridge fostering transparent communication channels within organisations. It crafts a nurturing space where employees and leaders can engage in fruitful dialogues regarding workplace well-being, fostering a community that prioritises inclusivity in decision-making.

Secure Incident Reporting and Insightful Analysis: At its core, Let’s Talk houses a secure platform where employees can report incidents relating to psychosocial hazards, guaranteeing anonymity. Moreover, it grants the leadership analytical tools to derive actionable insights from these reports, forming a robust feedback loop for continual improvement.

Holistic Well-being Initiatives: The app stands as a pillar supporting businesses in orchestrating well-being programmes that resonate with the essence of ISO 45003 standards. From mental health workshops to resilience training, it facilitates initiatives that foster both mental and physical well-being.

Action Plan and Follow-Up Module: Let’s Talk is your trusted partner in developing coherent action plans based on meticulous risk assessments and analyses. It facilitates a seamless follow-up mechanism, evaluating the potency of strategies implemented, ensuring a resilient and healthy workplace culture.

Efficient Record Keeping: A stronghold of documentation, Let’s Talk assists in maintaining detailed records of every stride taken towards fostering a healthier workplace, preparing businesses for a smooth certification journey.

Streamlined Certification Guidance: The app extends its support to organisations by offering consultancy or forming alliances with ISO 45003 certification bodies, guiding businesses smoothly through the certification pathway, right from preparation to final certification.

A Beacon of Continual Improvement: Let’s Talk embodies the spirit of perpetual growth, instilling tools that encourage organisations to consistently assess and refine their strategies, aligning with evolving standards and workplace dynamics.

With Let’s Talk at their helm, organisations are not merely aiming for compliance but fostering an environment that champions overall well-being and resilience, setting a golden standard in the industry.

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