Last year, we wrote about WHS changes afoot as a result of a meeting of Commonwealth, State and Territory Ministers centred around the Boland review, including their agreement to amend the model WHS Regulations to deal with psychological injuries.
Flowing from this agreement, and a further commitment from the Victorian Government to develop regulations to provide “clearer guidance” to employers on their obligations relating to psychological risks and hazards, the Victorian Government has prepared a draft amendment to Victoria’s Occupational Health and Safety Regulations, which are expected to come into effect in July 2022 following consideration by the Victorian Government.
If enacted as currently proposed, the amendment will introduce:
New definitions relating to “psychosocial hazards”
These definitions are aimed at supporting employers’ understanding of “psychosocial hazards”, which will be defined to mean:
“any factor or factors… 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 amendment thereby formalises the requirement for employers to, so far as is reasonably practicable, protect workers from psychosocial hazards, such as:
The risk of exposure to traumatic events or content
This psychosocial hazard was discussed in the recent and widely-reported High Court appeal in Kozarov v State of Victoria, in which the Office of Public Prosecutions (OPP) was found to have failed to meet its obligation to take reasonable steps to safeguard the mental health of Ms Kozarov, a public prosecutor with the OPP whose work involved “cases of an abhorrent nature involving child rape and offences of gross depravity”.
If your employees are exposed to any such hazards, it would be wise to revisit any trauma policies and confirm that they are in fact being enforced as intended.
While employers are no doubt already alive to the potential psychosocial hazards of “high job demands”, which are to be formally defined to mean “sustained or repeated physical, mental or emotional effort which is unreasonable or frequently exceeds the employee’s skills or capacity.
Employers may be surprised to see that the amendment will introduce a further requirement to protect against the risk of “low job demands” – for instance, tasks that are highly repetitive, monotonous or where there is just too little work for an employee to do.
Other types of psychosocial hazards
Some other examples of psychosocial hazards include:
- aggression or violence;
- sexual harassment;
- poor support;
- low role clarity;
- low recognition and reward; and
- poor workplace relationships.
For employers, the first step to addressing these amendments will necessarily be a thorough review of your employee’s systems of work and the way in which they carry out their work, with a view to identifying and eliminating (where possible) any potential psychosocial hazards.
For employers that have identified any of the following psychosocial hazards:
- aggression or violence;
- exposure to traumatic content or events;
- high job demands; or
- sexual harassment
A written prevention plan must be created which identifies the hazard, addresses the measures implemented to control the hazard (including an implementation plan) and the consultation undertaken in line with section 35 of the WHS Act.
Employers must also be ready to produce any such prevention plan, upon request, to a WorkSafe inspector and, if applicable, an employee health and safety representative and/or member of the employer’s health and safety committee.
Reportable psychosocial complaints
For employers with more than 50 employees, any complaints received about aggression or violence, bullying or sexual harassment will now need to be set out in a biannual written report to WorkSafe.
In addition, a copy of the report must then be kept for 5 years from the date on which it was provided.
Further proposed changes in other jurisdictions
Other jurisdictions have also taken on board the recommendations of the Boland Review in relation to psychosocial risks. Both New South Wales and Western Australia have introduced Codes of Practice for Managing Psychosocial Hazards at Work which will be admissible in court proceedings.
Further changes are expected in Western Australia with the release in June 2022 of the Community Development and Justice Standing Committee Report on sexual harassment against women in the FIFO mining industry.
Canberra has taken its own steps to implement some of the recommendations from the Boland review, via an amendment to the Workplace Health and Safety Act (ACT)including the inclusion of a sexual assault incident into the definition of a “notifiable incident” that must be reported to WorkSafe ACT.
Employers and their Boards need to enquire into how their organisations are managing psychosocial risks, and how the changes in each jurisdiction will impact upon their reporting and governance processes. We are seeing increased regulator enquiries into the management of psychosocial risks in workplaces, and in particular evidence that those risks are being addressed through risk assessment, policies, training, instruction and supervision. We can assist with undertaking a review of your policies and systems and providing training in relation to the management of psychosocial hazards and the proper handling of complaints.
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