NSW Government seeks input on proposed new Code dealing with psychological risks in the workplace

In a nation first, NSW is seeking to implement a Code of Practice (the Code) to assist employers to manage risks to workers’ psychological health.

In accordance with the Work Health and Safety Act 2011 (NSW) (WHS), the minister may only approve a code that has been developed in consultation with the Commonwealth, other states or territories, unions and employer organisations.

Accordingly, the NSW Government is seeking comments from businesses and other stakeholders to inform and shape the Code. Submissions will close on 31 October 2020 and lodged through this link.

Why develop a code of practice?

In the 2018-19 financial year, the total gross cost to the NSW workers’ compensation system for psychological injury exceeded $585 million. The total time lost, during the same period, exceeded 1,203,000 days according to the State Insurance Regulatory Authority.

A driving factor for drafting the Code was the realisation that businesses were unclear about their legal obligations.

Minister for Better Regulation, Kevin Anderson, noted that “mitigating and managing mental health risks at work can be complex” and for this reason the drafting of the Code is seen as a necessary step in helping employers to create a mentally healthy workplace.

Code versus guidance materials

Following a code of practice is not mandatory. Duty holders may adopt alternative approaches if those alternatives meet or exceed the standard of health and safety set by a code.

However, unlike guidance material, an approved code of practice may be relied on by courts when making determinations about the state of knowledge and what is reasonably practicable for a business to do when managing the health and safety of their workers.

Summary of the proposed Code

The draft Code defines psychosocial hazards as work factors that have the potential to cause psychological and/or physical harm. These factors arise from the design and management of work and from interactions between colleagues. As with any hazard, if they are not managed effectively, they can increase the chance of psychological injuries within the workforce.

Separate from codes addressing physical hazards and risks, the Code requires a Person Conducting a Business or Undertaking (PCBU) to have regard to potential sources of psychosocial hazards such as the operating environment and its pressures, the interactions and behaviours between people at work and the characteristics and attributes of officers and workers.

The Code recommends a four-stage management approach for a PCBU to address psychosocial health hazards based on the risk management approach utilised in previous codes, including:

Step 1—Identifying psychosocial hazards
Step 2—Assessing risks to psychological health
Step 3—Controlling risks to psychological health
Step 4—Monitoring and reviewing controls

The draft Code is intentionally broad in order to be applicable to most NSW workplaces. It is not designed to be a comprehensive list or approach to preventing psychological risks in the workplace, but instead aims to support businesses to manage their psychosocial obligations under WHS legislation.

As mentioned, if you would like to have input into the development of the Code, you may do so directly by written submission no later than 31 October 2020.

Further information

Please contact us from the Workplace Safety team if you wish to discuss further or have any questions about the draft Code and the potential implications for your business.