Recent development in psychosocial risk regulation

Over the last three years, there has been a spotlight on ‘psychosocial risks’. As a result, we have seen a gradual but positive move towards ensuring that workplaces are improving psychosocial health and safety practices by proactively identifying and managing psychosocial hazards and risks in the workplace.  The key catalysts for this shift have been several high-profile reports, including the ‘Review of the Model Work Health and Safety Laws’ by Marie Boland in 2018/2019 (the Boland Review) and the Respect@Work: Sexual Harassment National Inquiry Report in 2020.

All states and territories in Australia, with the exception of Victoria, have adopted the model Work Health and Safety Act (the model WHS Act) and the Work Health and Safety Regulation (model WHS Regulation) (together, the model WHS laws).

Under the model WHS laws, a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers and other persons in the workplace.

The Boland Review found that despite the term ”health” including both psychosocial and physical health risks, the previous legislative framework, including the Regulations and Codes of Practice, failed to provide PCBUs with sufficient guidance on how to address psychosocial hazards in and associated with the workplace. To address this, the Boland Review recommended the development of additional regulations on how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks.

In June 2022, the model WHS Regulation was amended to reflect the Boland Review’s recommendation.

A key change introduced a definition of psychosocial hazards and psychosocial risks into the model WHS Regulation.

A psychosocial hazard is defined as:

1. a hazard that:
   1. arises from, or relates to the design or management of work,
   2. a work environment,
   3. plant at a workplace, or
   4. workplace interactions or behaviours, and
2. may cause psychological harm, whether or not it may also cause physical harm.

A psychosocial risk is defined as:

a risk to the health or safety of a worker or other person arising from a psychosocial hazard.

The amendment to the model WHS Regulation also confirmed a PCBU’s duty to manage psychosocial risks and requires PCBUs to consider all relevant matters when determining the control measures to implement to manage psychosocial hazards. Relevant matters include:

1. the duration, frequency and severity of the exposure of workers and other persons to the psychosocial hazards,
2. how the psychosocial hazards may interact or combine,
3. the design of work, including job demands and tasks,
4. the systems of work, including how work is managed, organised and supported,
5. the design and layout, and environmental conditions, of the workplace, including the provision of—
   1. safe means of entering and exiting the workplace, and
   2. facilities for the welfare of workers,
6. the design and layout, and environmental conditions, of workers ‘accommodation,
7. the plant, substances and structures at the workplace,
8. workplace interactions or behaviours, and
9. the information, training, instruction and supervision provided to workers.

While the model WHS laws form the basis of each WHS Act and WHS Regulation implemented in each Australian state and territory, with the exception of Victoria, amendments to the model WHS laws are not automatically introduced into the WHS Laws in each jurisdiction; the states and territories must each separately adopt the amendments, which may include some refinement.

To date, NSW is the only jurisdiction to have adopted the proposed amendments. The amendment to the Work Health and Safety Regulation 2017 (NSW Regulation) involves the insertion of Part 3.2, Division 11 in Chapter 3 (General Risk and Workplace Management) and takes effect from 1 October 2022.

The practical implementation of the amendments to the NSW Regulation are supported by the pre-existing Code of Practice: Managing psychosocial hazards at work – another first for NSW, which introduced the Code of Practice in 2021. This year, Western Australia and the Northern Territory have also adopted the Code of Practice.  

The amendments to the model WHS Regulation also follow publication in June 2021 of the international standard ISO 45003:2021Occupational health and safety management — Psychological health and safety at work — Guidelines for managing psychosocial risks.

Although it has not adopted the model WHS laws, Victoria has recently proposed new Occupational Health and Safety Amendment (Psychological Health) Regulations (Victorian Amendments). Similar to the model WHS laws, the Victorian Amendments propose to introduce a requirement to introduce psychological hazards and a requirement to control WHS risks associated with psychological hazards. The Victorian Amendments propose additional requirements to:

• Prepare a written prevention plan for aggression or violence, bullying, exposure to traumatic content or events, high job demands and sexual harassment, where that risk has been identified by the employer. Any prevention plan must include (amongst other things) measures to control the identified risks and an implementation plan.
• For employers with more than 50 employees, provide a written report to WorkSafe Victoria about psychosocial complaints the employer has received during the reporting period and keep a copy of the report for five years.

What does this mean for PCBUs and employers?

It will only be a matter of time before all states and territories implement WHS Act changes relating to psychosocial hazards. PCBUs and employers should adopt a proactive approach to—

• identify existing psychosocial hazards within the workplace
• review control measures in place to minimise risks to health and safety from psychosocial hazards
• consult workers regarding the above
• implement new control measures (as required), and
• regularly review and assess psychosocial hazards and the efficacy of any control measures on a regular basis or in the event of an incident.

Addendum

Since our article was published, Queensland has passed the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (QLD) (the Qld Psychosocial Amendments), which, for the most part, mirror the psychosocial risk clauses contained in the model WHS Regulation and the NSW Regulation.  

A distinguishing feature, however, is that the Qld Psychosocial Amendments apply the hierarchy of controls to psychosocial hazard risk management. This requires duty holders to ensure higher order control measures (substitution, isolation or engineering controls) take precedence where reasonably practicable (and where it is not possible to first eliminate the risk).

Notably, the NSW Regulation expressly excludes the requirement for duty holders to manage psychosocial risks in accordance with the hierarchy of controls.

The Qld Psychosocial Amendments will come into force on 1 April 2023.