Employers now have an explicit duty to eliminate or minimise (in so far as is reasonably practicable) psychosocial risks and hazards in the workplace following changes to the Work Health and Safety Regulation 2017 (NSW) (WHS Regulation). At a minimum, businesses must look to implement a systematic risk management framework to manage exposure to the risk to the health or safety of workers.
The changes and what they are mean for organisations are outlined below.
A shift in perception
Under the Work Health and Safety Act 2011 (NSW) (WHS Act), a “person conducting a business or undertaking” (PCBU), such as an employer, has a statutory duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the PCBU while the workers are at work in the business or undertaking.
This duty and the reference to the “health and safety” of a worker has always encompassed both the worker’s physical and mental health, however in recent times (including following the 2018/2019 review of the national model work, health and safety laws) there has been greater awareness and guidance provided in relation to managing and minimising psychological risks in the workplace.
This has resulted in:
the introduction of Codes of Practice specifically dealing with psychosocial risks and hazards, including Safe Work Australia’s “Managing psychosocial hazards at work” Code of Practice and SafeWork New South Wales’ “Managing psychosocial hazards at work” Code of Practice (the Code). Other states and territories are expected to follow suit;
amendments to work, health and safety regulations (including the WHS Regulation) which now expressly refer to psychosocial risks and hazards.
What has changed? Amendments to the WHS Regulation
On 1 October 2022, new provisions were introduced to the WHS Regulation regarding psychosocial hazards and risks in the workplace, including introducing an express requirement for PCBUs to manage psychosocial hazards and risks. The terms “psychosocial hazard” and “psychosocial risk” are also defined.
The WHS Regulation, which has legal force, operates alongside the WHS Act and sets out specific requirements for particular hazards and risks.
The WHS Regulation also sets out the matters an organisation must consider when determining the “control measures” to implement when seeking to eliminate or reduce a risk to health and safety.
What is a psychosocial hazard?
A psychosocial hazard is anything that could cause psychological harm.
Psychosocial hazards at work are aspects of work and situations that may cause a stress response which in turn can lead to psychological or physical harm (or both). It includes hazards which arise from or relate to the design or management of work, a work environment, plant at the workplace or workplace interactions or behaviours.
Examples of psychosocial hazards include role overload (e.g. high workloads or job demands), role underload (low workloads or job demands), low job control, poor support, lack of role clarity, bullying or sexual harassment, traumatic events, remote or isolated work, workplace conflict or poor workplace relationships.
What does this mean for employers?
The Code and the WHS Regulation focus on the early identification and prevention of psychosocial harm. This includes taking proactive steps to undertake a risk management assessment of psychosocial hazards and matters which may exist in the workplace. PCBUs (which include employers) must manage psychosocial risks in accordance with the WHS Regulation and the Code.
The steps in the risk management process
Broadly the risk management steps (as outlined in and recommended by the Code) are as follows:
Step 1: identifying the psychosocial hazards. The hazards will vary depending on the nature of the workplace and the work performed.
Step 2: assessing and prioritising the psychosocial hazards and risks.
Step 3: implementing control measures which either eliminate psychosocial risks and hazards, so far as is reasonably practicable, or if it is not reasonably practicable to eliminate the risks, minimise the risks so far as is reasonably practicable.
Step 4: proactively maintaining, monitoring and reviewing the effectiveness of the control measures. This also includes responding to reports of any risks/incidents, investigating any risks/incidents and maintaining appropriate records (such as an “organisational risk register” which records hazards and incidents).
By way of summary:
PCBUs have a statutory duty to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the PCBU. This includes both the workers’ physical and psychosocial health;
this is not a new duty, rather there has recently been an increased focus on workers’ psychosocial wellbeing, through the introduction of the Code and changes to the WHS Regulation;
the WHS Regulation now expressly refers to the control measures which may be appropriate when managing psychosocial hazards and risks and define the terms psychosocial hazards and psychosocial risks;
the Code has been introduced as a means to assist organisations to comply with the WHS Act and the WHS Regulation (specifically in relation to psychosocial health). The focus is on the prevention of harm and proactive risk management which takes a holistic approach;
PCBUs should take steps to identify, review and consider the hazards and risks which may exist in the workplace in respect of its workers’ psychosocial health and undertake a risk assessment and management process. Where appropriate and required, control measures should be implemented to eliminate or reduce these risks (so far as is reasonably practicable).