New psychological health regulations for Victorian employers

The Occupational Health and Safety Amendment (Psychological Health) Regulations (Vic) (proposed Regulations) are expected to commence in mid-2022, subject to approval by the Minister, which is anticipated to occur shortly.

Under Victorian OHS laws, an employer must, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to employees’ health.

The definition of employees’ health has always included psychological health. Despite this, the recent Royal Commission into Victoria’s Mental Health System, Review of Model Work Health and Safety Laws, Respect@Work: Sexual Harassment National Inquiry Report and the Productivity Commission’s Inquiry into Mental Health all indicate the need for improvement in how workplaces understand and address psychological health.

The proposed Regulations seek to address this by:

1. providing clearer guidance to employers on their obligations to protect workers from mental injury; and
2. recognising that psychosocial hazards are just as harmful to employee safety as physical hazards.

What are the new changes?

1. Requirement to identify psychological hazards

The proposed Regulations require employers, so far as is reasonably practicable, to identify psychosocial hazards.

Psychosocial hazards has been defined in the proposed Regulations to mean:

‘any factor or factors in the work design, systems of work, management of work, carrying out of work or 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.’

Examples include: bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, high job demands, low 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, poor workplace relationships.

2. Control risks to health and safety associated with psychological hazards

The proposed Regulations also require employers, so far as is reasonably practicable, to eliminate any risk associated with a psychosocial hazard.

Where it is not reasonably practicable to eliminate such a risk, the employer must reduce the risk by:

1. altering the management of work, the plant, the systems of work, the work design or the workplace environment; or
2. using information, instruction or training; or
3. a combination of a and b.

Importantly, the proposed Regulations go further to provide that an employer can only exclusively use the control measures in b) if none of the measures in a) are reasonably practicable. Further, if a combination of measures are used, the measures in b) must not be the predominant measure.

This goes to show that the proposed Regulations place a higher burden on employers to make systemic workplace changes to support psychological wellbeing.

3. Written prevention plans

If an employer identifies one or more of the below psychosocial hazards, an employer must implement a written prevention plan that identifies the risk, identifies measures to control the risk and includes an implementation plan for any identified measures:

1. aggression or violence;
2. bullying;
3. exposure to traumatic content or events;
4. high job demands; or
5. sexual harassment.

4. Additional reporting scheme for employers with more than 50 employees

The proposed Regulations set out two reporting periods, being:

• 1 January to 30 June (inclusive) of each calendar year; and
• 1 July to 31 December (inclusive) of each calendar year.

Within 30 days after the end of each reporting period, employers with more than 50 employees must submit a de-identified report to WorkSafe Victoria with information about each reportable psychosocial complaint the employer received during the reporting period.

Reportable psychosocial complaints mean complaints involving: aggression or violence, bullying or sexual harassment.

The report must include information about the gender of the persons involved and a description of the workplace relationship between the persons involved.

WorkSafe Victoria will use the information contained in the reports to detect risks to mental health and encourage employers to prioritise mental health needs in the workplace. At this stage, it does not seem like any information contained within these reports will be disclosed to the wider public.

Penalties for failure to comply with reporting scheme

From 1 September 2023, a failure to provide a report to WorkSafe Victoria within 30 days after the end of each reporting period will be punishable by a fine upwards of $10,904 for a natural person and upwards of $54,522 for a body corporate. In other words, if an employer fails to provide a report by 30 January 2024 for the period from July 2023 to December 2023, high penalties will apply.

Employers must also keep a copy of the report for five years, which must be produced for inspection on request. A failure to adhere to these requirements is also punishable by a fine upwards of $10,904 for a natural person and upwards of $54,522 for a body corporate.

What does this mean for employers?

With the commencement of the proposed Regulations being soon, we strongly advise employers to:

• start identifying all existing and potential psychosocial hazards within the workplace;
• review current measures in place to minimise risks to health and safety from psychosocial hazards;
• consider any reportable psychosocial complaints that have been made;
• consult employees as required under section 35 of the Occupational Health and Safety Act 2004 (Vic) in relation to the identification of hazards and control measures for such hazards;
• prepare written implementation plans for any identified control measures; and
• be prepared to regularly review and assess psychosocial hazards in the workplace and implement any control measures on a continual basis.

Please contact us should you require any advice or assistance.

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Authored by: 

Deivina Peethamparam, Partner
Diana Diaz, Special Counsel
Carlyna Yap, Lawyer
Nakita Rose, Lawyer