Psychosocial risks to be covered by WHS Regulations

On 20 May 2021 the Federal, State and Territory Ministers who are responsible for work health and safety met and voted to amend the model Work Health and Safety Regulations (the Regulations). The amendments, once passed, will see the inclusion of specific provisions on psychosocial risks in the Regulations.

Background to the Amendments on psychosocial risks.

This move resulted from one of 34 recommendations contained in the Boland Report, released in 2018, following the first independent review of the model Work Health and Safety laws (model WHS laws), by Marie Boland, a former director of SafeWork SA.

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

The Boland Report found that despite ”health” being understood to include both psychosocial and physical health risks, the current legislative framework, including the Regulations and Codes of Practice, fails to provide PCBUs with sufficient guidance on how to address psychosocial hazards in and associated with the workplace.

Ms Boland noted:

” ...there is a widespread view that psychological health is neglected in the model WHS Regulations and Codes. Many PCBUs told me that they are uncertain about how to best address psychological health in the workplace, and the feedback from small businesses in particular was that they wanted more prescription and practical guidance to help them identify and manage psychosocial risks and hazards.”

The Amendments on Psychosocial risks

The amendments to the Regulations dealing with psychosocial risks will impose a positive obligation on PBCUs to manage and guard against the risk of psychosocial hazards in the workplace.

The amendments will be introduced to all jurisdictions with the model WHS laws including Western Australia (who has recently voted to introduce the model WHS laws).

Victoria who is not part of the harmonised scheme will also amend its Occupational Health and Safety Regulations 2017 to include amendments addressing psychosocial risks.

Looking Ahead

Awareness around the importance of managing mental health and psychosocial risks in the workplace has recently been growing, as is evidenced by the fact that:

• SafeWork NSW has released a draft Code of Practice on ‘Managing the risks to psychological health’,
• SafeWork Australia has issued a guide on ‘Work-related psychological health and safety: a systematic approach to meeting you duties’ and
• WorkSafe Victoria has issued a guide for ‘Preventing and managing work-related stress: A guide for employers’.

With the introduction of the amendments, we anticipate an increase in guidance material and commentary by WHS regulators, together with an increased regulator focus on how PCBUs are managing these risks in their workplace.

Other Boland Report recommendations the Ministers voted to amend include increased penalties and the expansion of category 1 offences to include ”gross negligence”, in addition to recklessness. By contrast, proposed industrial manslaughter laws were voted down.