Are you meeting your psychosocial obligations?

On 1 April 2023, the Managing the risk of psychosocial hazards at work Code of Practice 2022 (Code), published by Safe Work Australia, was approved under the Work Health and Safety Act 2011 (Qld) (WHS Act) and became legally enforceable in all Queensland workplaces covered by the WHS Act. The Code comprehensively addresses the process required to manage psychosocial hazards in the workplace. The Code does this by providing guidance on how to identify, assess and control risks of psychosocial hazards at work. Adherence to the Code will assist employers to discharge their duties regarding psychosocial hazards under the WHS Act.

In this article, we discuss the changes introduced by the Code. We also comment on the potential flow on effects for workers’ compensation claims in Queensland arising from increased awareness about psychosocial hazards.

Role of the PCBU

A person conducting a business or undertaking (PCBU) has a primary duty of care to ensure, so far as reasonably practicable, the health and safety of workers it engages and workers whose activities are influenced or directed by the PCBU, while they are at work.[1] A PCBU also has a duty of care to ensure, so far as reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of its business or undertaking.[2]

In the context of the WHS Act, ‘health’ includes both physical and psychological health.[3] Although, the requirement to take care for a worker’s mental health is not new, the introduction of the Code brings the mental health in the workplace sharply into focus for Queensland businesses.

Psychosocial Hazards

Psychosocial hazards are hazards that arise from the design or management of work, the working environment, or from workplace interactions or behaviours. A psychosocial hazard also extends to anything that could cause psychological harm (e.g. harm to someone’s mental health). A psychosocial risk, on the other hand, is a risk that arises from a psychosocial hazard.

Common psychosocial hazards include:

• unreasonable or excessive time pressures or role overload;
• intense or sustained high mental, physical or emotional effort required to do the job;
• excluding a worker from work-related activities;
• exposure to an unpleasant or hazardous working environment (including bullying and harassment); and
• poor workplace relationships.

Managing psychosocial risks in the workplace

PCBUs must ensure that they both assess and control psychosocial risks in the workplace. This can be achieved by conducting a risk assessment in consultation with employees, for any psychosocial hazards that have been identified. In assessing the risk of harm, PCBUs will need to identify the employees that will be affected and to consider the duration, frequency, and severity of their exposure to the hazard.

Controlling the risks

Once psychosocial hazards have been identified and the risks have been assessed, PCBU’s should eliminate risks to the health and safety of employees to the extent it is reasonably practicable to do so. If it is not reasonably practicable to eliminate a risk, then the risk must be minimised so far as reasonably practicable. In determining what is reasonably practicable in managing psychosocial risks, it will be essential to:

• identify as many possible reasonable control measures as you can;
• consider which of these control measures are most effective; and
• consider which controls are reasonably practicable in the circumstances.

Continuous monitoring of control measures

Implementing control measures is not where a PCBUs obligations end. Reviewing the control measures that have been implemented ensures that the control measure is still effective. As a PCBU, you may want to consider:

• Is the control measure effectively eliminating or minimising the risk?
• Have workers been trained to work with/alongside the control measure?
• Is there a new control measure that might better control the risk than what has already been implemented?
• Have the risks changed to what was previously assessed?

If the control measure is not effective at eliminating or minimising the risk, either a modification to or replacing of the existing control measure may be required, or completely replacing the existing control measure may be required.

Reporting and recording

It is important that employers record the entire risk management process including any report or complaints that workers have made identifying psychosocial hazards. A work health and safety inspector may ask to view records regarding the psychosocial hazards at any given time, therefore PCBUs should retain internal copies of the entire process.

Recording may include:

• the worker complaint / report of the psychosocial hazard identified;
• consultation with the worker(s);
• how the risk was assessed;
• if the risk could be eliminated, what the solution was;
• if the risk could not be eliminated, what control measure was implemented;
• any training for the new control measure (if necessary); and
• when reviews have been conducted or will be conducted to monitor the effectiveness of the control measure.

Legislative changes and the adoption of guidance materials

Safety legislation has recently been amended at both a national and state level to capture the new requirements surrounding psychosocial hazards in the workplace. These changes have included the adoption of new guidance materials and legislative instruments, as well as updating existing legislative requirements.  In addition to Queensland, other Australian states have also adopted similar codes of practice to cover psychosocial hazards.

Below is a snapshot of developments in other jurisdictions:

• New South Wales was the first state in Australia to adopt the proposed federal amendments to the Model WHS Regulations and as of 1 October 2022. A PCBU operating in New South Wales were required to adopt psychosocial risks in the workplace and to implement control measures to eliminate these risks. Western Australia has updated its Work Health and Safety Act 2020 (WA) to expand the definition of health to now include psychological wellbeing.
• The Northern Territory has announced that new legislation which directs businesses to effectively manage psychosocial hazards in the workplace will come into effect on 1 July 2023.
• Tasmania has updated its Work Health and Safety Regulations 2022 (Tas) to now includes provisions that address psychological health.
• South Australia is yet to officially adopt any instrument to address psychosocial hazards in the workplace
• Rather than adopting the Code, Victoria has introduced the Occupational Health and Safety Amendment (Psychological Health) Regulations 2021 (Vic) to address psychological health in the workplace. The introductions of these regulations make it a compulsory requirement for employers to both identify and manage psychological risk in the workplace.
• At a Commonwealth level, the Work Health and Safety Regulations 2011 (Cth) have been amended to emphasise psychological health in all Australian workplaces and to provide a consistent framework across all jurisdictions to effectively manage psychosocial hazards and risks in the workplace.

Changes to Workers’ Compensation Claims

Queensland workers that have experienced psychiatric and psychological injuries arising out of, or in the course of their employment are able to submit a claim against their employer under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCR Act).

Under section 32(5) of the WCR Act, psychiatric and psychological injuries that have arisen out of reasonable management action are not considered an ‘injury’ for the purposes of the WCR Act. A worker also cannot make a claim if the psychiatric or psychological injury arose from the worker’s expectation or perception of reasonable management action being taken against the worker. These exceptions have resulted in many workers with psychological injuries experiencing difficulties in being successful in a workers’ compensation claim, as many psychological injuries have been linked to reasonable management action.

Due to the specified duties imposed upon PCBUs to manage psychosocial hazards and the increased awareness in this area, employers could see an increase in the number of workers’ compensation claims for psychiatric and psychological injuries, and in turn, an increase in successful workers’ compensation claims for psychiatric injuries.

Employers should consider the following to safeguard against workers’ compensation claims in this developing environment:

• encourage workers to report any psychosocial hazards that they identify;
• respond to complaints and consult workers;
• monitor their control measures regularly to ensure continued effectiveness; and
• maintain an internal record of the entire risk management process including the solution.

Conclusion

As an employer, it is essential that you are aware of these recent changes and the obligations that apply to you depending on which state or territory your business operates. PCBUs must ensure that they are aware of the recent changes in legislation and the incorporation of the Code and take proactive steps to uphold compliance with psychosocial hazards in the workplace. This can be achieved by reviewing and updating current workplace policies and procedures to incorporate a risk management process for psychosocial hazards.

Gadens has extensive experience in drafting workplace health and safety policies and procedures to ensure compliance with legislative requirements, and assisting businesses to address and respond to WHS issues.

To enquire as to how Gadens may be able to assist, please contact Jonathon Hadley in Brisbane by email jonathon.hadley@gadens.com or phone +61 7 3231 1653.

If you found this insight article useful and you would like to subscribe to Gadens’ updates, click here.

Authored by:
Jonathon Hadley, Partner
Blade Atton, Associate
Braden Wong, Paralegal

[1] Work Health and Safety Act 2011 (Cth) s 19(1).

[2] Ibid s 19(2).

[3] Work Health and Safety Regulations (2011) (Cth) s 55B.