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In an effort to better address workplace psychological hazards and injuries in Victoria, proposed amendments to Victoria’s Occupational Health and Safety Regulations 2017 (OHS Regulations) have been released for public consultation.

The proposed Occupational Health and Safety Amendment (Psychological Health) Regulations, follow a commitment by the Victorian Government in May 2021 to provide clearer guidance to employers and address a perceived lack of understanding of existing obligations relating to workplace psychological hazards and injuries.

Victoria’s existing OHS framework imposes duties on employers to take reasonably practicable steps to ensure employee health and safety. This framework specifically applies to risks to psychological health.[1] However, a number of recent reviews have emphasised the need for further education and reform to ensure duty holders properly understand their obligation to protect employee psychological health and to increase awareness of psychosocial hazard control measures.[2]

For example, the report from the first national review of the model Work Health and Safety laws (Model WHS Laws) conducted by Marie Boland in 2018, acknowledged a “widespread view that psychological health is neglected in the model WHS Regulations and Codes”. As one of 34 recommendations arising from that review, Ms Boland recommended that the model WHS Regulations be amended “to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks”.

Various reviews have generally pointed to a number of key psychosocial hazards in workplaces that may cause risks to employee psychological health, including:

  • work design, role clarity and job demands (high or low)
  • ineffective systems of work
  • management of work and poor change management
  • carrying out of the work (including for example, remote and isolated work), and
  • personal or work-related interactions (including bullying, harassment and sexual harassment).

Following the recommendations and observations from these various reviews, Ministers from each of the Model WHS Law jurisdictions have voted to make changes to the Model WHS Laws to better address psychosocial hazards. The proposed changes in Victoria seek to bring the State in line with other jurisdictions, given it continues to operate outside of the Model WHS Laws.

What are the proposed amendments to Victoria’s OHS Regulations?

The proposed amendments to the OHS Regulations seek to better address these issues by inserting new definitions to improve clarity of key terms, and by imposing a specific psychological hazard and risk assessment and control framework on Victorian employers, including a new requirement to prepare, consult with employees and implement a written ‘prevention plan’. The proposed changes would also see new reporting obligations relating to psychosocial complaints received by employers. 

The changes
  1. New definitions to support employers’ understanding of psychosocial hazards, including:
    • Bullying: repeated, unreasonable behaviour by a person, which is directed at another person or group of other persons that creates a risk to health and safety.
    • High job demands: sustained or repeated physical, mental or emotional effort, which is unreasonable or frequently exceeds the employee's skills or capacity.
    • Psychological response: cognitive, emotional and behavioural responses and the physiological processes associated with them.
    • Psychosocial hazard: any factor or factors in—the work design, the systems of work, the management of work, the carrying out of the 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.
    • Reportable psychosocial complaint: a complaint involving aggression or violence, bullying or sexual harassment.
    • Sexual harassment: has the same meaning as in the Equal Opportunity Act 2010 (Vic).
    • Work design: the equipment, content and organisation of an employee's work tasks, activities, relationships and responsibilities within a job or role.

  1. A new chapter 5A, imposes duties on employers relating to psychological health, including:

    Part 5A.1, requires employers to, so far as is reasonably practicable:

    •  identify psychosocial hazards
    • eliminate any risk associated with a psychosocial hazard (or, where not reasonably practicable, to reduce that risk by taking the steps outlined in the new duty)
    • review and, if necessary, revise any measures implemented to control risks associated with any psychosocial hazards when one or more of a number of key events occur, and
    • 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.

     Part 5A.2, requires employers to:

    • 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.

    Part 5A.3, introduces penalties for an employer’s failure to comply with duties under the regulations.

 

Public consultation on the proposed regulations closes on 31 March 2022. If adopted, the proposed commencement date is 1 July 2022.

What are the trends showing?

Data collated by SafeWork Australia and WorkSafe Victoria demonstrates compensation claims for work-related mental injuries are increasing as a proportion of total claims, and that the average duration and cost of mental injury claims are both greater than other claims. The data shows that:

  • between 2017 and 2019, claims for mental injuries in Victoria increased 20 per cent
  • during the pandemic, whilst claims for mental injuries in Victoria decreased slightly, the proportion of mental injury claims to total claims was the highest in recent history, reaching 14%
  • in 2020, in Victoria, the average duration of a claim for mental injury was 37.5 weeks. This is more than double the average duration for other injuries
  • in 2021, the average cost of a mental injury claim was approximately $220,000, a cost that has more than doubled over the past decade and is far in excess of double the average cost of non-psychological injury claims, and
  • the typical time off work for mental injury is approximately 15.3 weeks, compared to an average of 5.5 weeks for all other claims.

WorkSafe Victoria forecasts that claim numbers for mental injury will continue to grow over the next five years. Employers should therefore expect an increased focus by WorkSafe Victoria (and other WHS regulators) on the investigation and prosecution of psychosocial hazards and injuries. Employers are already feeling this increased focus from WorkSafe Victoria, and we only expect this trend to continue.

 

[1]     See the definition of ‘health’ in s 5 of the Occupational Health and Safety Act 2004 (Vic).

[2]     See the observations and recommendations arising from the Boland Review of the Model WHS Laws, the Respect@Work: Sexual Harassment National Inquiry Report, the Productivity Commission’s inquiry into mental health and the Royal Commission into Victoria’s mental health system.

We would like to acknowledge the contribution of Taylor Burt.
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