Safe Work Australia developed model Work Health and Safety laws (model WHS laws) in 2011, which most states (except Victoria) have now implemented with minor variations. The laws comprise of the model WHS Act, model WHS Regulations and model Codes of Practice.
With managing psychosocial hazards in the workplace being an important responsibility for all employers, especially human resources managers, it is essential for businesses to understand Australia's existing health and safety law framework and key considerations when addressing these hazards at work.
In this three-part series, we look at various codes of practice in relation to psychosocial hazards in the workplace and how businesses can implement these into their operations. Our first instalment provides an overview of the relevant legislation and key considerations.
Refresher on Australia's health and safety law framework
A review of the model WHS laws conducted between 2017 and 2018 (the Boland Review) identified that psychological health was neglected in the model WHS Regulations and the model Codes of Practice. Recommendations included additional regulations to be developed regarding methods in identifying psychosocial risks in the workplace and the appropriate control measures to manage those risks.
In July 2022, Safe Work Australia updated the model WHS Regulations to incorporate those recommendations in relation to psychosocial risks in the workplace. At the same time, Safe Work Australia also published the final version of a new model "Code of Practice: Managing psychosocial hazards at work", providing practical guidance on how to identify, manage and control psychosocial hazards in the workplace.
Each Australian state has taken a different approach to the model Regulations and Code, requiring human resources managers to understand and apply different rules in each state a business operates in.
A code of practice
The model WHS Act defines "approved code of practice" as a code of practice approved under Part 14 of the model WHS Act. The relevant sections under Part 14 are sections 274 and 275. Section 274 of the model WHS Act confirms that a Minister may approve a code of practice for the purpose of the WHS Act and may vary or revoke an approved code of practice. Accordingly, when the model Code of Practice for psychosocial hazards was introduced, it was not automatically applicable to the states. The code of practice does not come into effect unless adopted and approved by the Minister in the relevant state. These definitions and concepts are reflected in the harmonised WHS Acts in the relevant states.
Section 276 of the Model WHS Act provides that the Governor in Council may make regulations under the WHS Act. A regulation may make provision for any of the matters listed in schedule 3 of the WHS Act (i.e. duties or hazards and risks) or otherwise related to work health and safety. Further, a regulation may:
- allow the regulator to provide exemptions from complying with any of the regulations on the terms and conditions prescribed (if any); or
- prescribe fees for doing any act or providing any service for the purposes of the WHS Act; or
- prescribe a penalty for any contravention of the regulations not exceeding 300 penalty units.
The WHS Regulations are essentially a supporting legislative instrument that provides for specific requirements or information in respect to various elements initially raised by the WHS Act. For example, the legislation imposes a duty for employers to report notifiable incidents, such as the death of a person, serious injury or illness, or a dangerous incident. Serious injury or illness includes any other injury or illness prescribed under a regulation. The WHS Regulation also provides a list of conditions which are classed as a serious illness including, for example, Q fever and Anthrax.
How codes of practice and regulations interact
Persons conducting a business or undertaking (PCBU) must ensure that they consult the WHS Regulations in order to ensure compliance with the WHS Act. If an approved code of practice exists, a PCBU must either comply with the code or manage hazards and risks arising from the work carried out as part of the conduct of the business or undertaking in a way that is different to the code, but provides a standard of health and safety that is equivalent to or higher than the standard required under the relevant code. The code of practice should be treated as the bare minimum requirements to comply with duties under the Act in respect to that specific issue covered by the code of practice.
There is interaction between the WHS Regulations and the code of practice for psychosocial hazards. As we know, the code requires PCBU's to identify risks, assess the hazards and implement control measures. The WHS Regulations and the requirements are largely the same but businesses should ensure that they have reviewed both to ensure continuing compliance with both. Importantly, businesses must also remember that they are required to consider all risks associated with work, and not just those covered by a regulation or code of practice.
A key difference between the WHS Regulations and the code of practice is that an approved code of practice is designed to be a practical guidance tool to help meet the requirements of the WHS Act and WHS Regulation. Codes of practice are admissible in court proceedings and may be used as evidence of what is known about a particular hazard, risk or control. Further, the code may be relied upon in determining what is reasonably practicable in the circumstances for which the code relates to. This means that in turn, the code of practice may be relied upon to demonstrate a PCBU's failure to meet and comply with their duties under the WHS Act.
Which states have adopted the Code of Practice for psychosocial hazards?
As illustrated below, several jurisdictions have updated their WHS laws to incorporate the "Code of Practice: Managing psychosocial hazards at work". Each state has started with the Safe Work Australia model Code of Practice and applied their own edits to the model Code. That means that while Safe Work Australia published a model Code of Practice to encourage consistency, human resources managers need to ensure they are accessing and applying the correct Code of Practice for their state, as the Codes implemented are not identical to one another and are not identical to the Safe Work Australia model Code of Practice.
Legislative updates between different states
Each of the states which have adopted the Code of Practice, have updated their version of the WHS Regulations to incorporate the new obligations. More specifically, the changes can be found in each of the following sections for each state:
- New South Wales: Work Health and Safety Regulation 2017 (NSW) - the Regulation has been amended to include a new Division 11 'Psychosocial Risks'. Sections 55A - 55D comprise Division 11 and requires PCBUs to manage psychosocial risks and implement control measures to eliminate or minimise the risk
- Western Australia: Work Health and Safety (General) Regulations 2022 (WA) - the Regulation has been amended and is the same as the NSW Regulations. Sections 55A - 55D and provides the same requirements as noted above for NSW
- Tasmania: Work Health and Safety Regulations 2022 (Tas) - again, the Regulation has been amended and reflects the same changes made in the NSW and WA Regulations
- Queensland: Work Health and Safety Regulation 2011 (Qld) - changes to the Regulation aligns with the changes made in NSW, WA and Tasmania.
The Codes of Practice are accessible from the links below:
- Safe Work Australia model Code
- all Codes of Practice are available on the Safe Work Australia website
- Model Code of Practice: Managing psychosocial hazards at work.
- New South Wales
- all codes of practice can be found on the SafeWork NSW website
- Code of Practice: Managing psychosocial hazards at work.
- Western Australia
- Codes of Practice are available on the Western Australia Department of Mines, Industry Regulation and Safety website
- Code of Practice - Psychosocial hazards in the workplace.
- Codes of Practice are available on the WorkSafe Tasmania website
- Managing psychosocial hazards at work - Code of Practice.
- Codes of Practice are available on the WorkSafe Queensland website
- Managing the risk of psychosocial hazards at work - Code of Practice.
Key considerations for human resources managers
Human resources managers should take into consideration several key factors in relation to psychosocial hazards in the workplace. These include:
- the legal obligations: Human resources managers should remind the business that employers have a legal obligation to provide a safe workplace for their employees. A failure to comply with the Code of Practice for managing psychosocial hazards may have no direct consequences, but it may nevertheless be used as evidence by the courts to consider what is known about a particular hazard, risk or control. Further, for jurisdictions that have not yet adopted the model Code, the courts may rely on the model Code in determining what is reasonably practicable in the circumstances to which the model Code relates
- location(s) of the business: Human resources managers working for businesses that operate nationally should to take into consideration of the locations in which the PCBU is conducting their business and whether any policies and procedures are implemented in accordance to the applicable legislation and model Code. It will also be important to check each state's code of practice for any minor differences. Where there are differences, the business may not be able to adopt one standard approach
- conducting risk assessments: Human resources managers should ensure that the employer conducts a thorough risk assessment to identify potential psychosocial hazards in the workplace. The risk assessment should take into account factors such as workloads, job demands, organisational culture and structure as well as social support. It is therefore important to consider who in the workplace is the most appropriate to conduct the risk assessment. It may require multiple people to be involved and it may even require multiple risk assessments to cover the entirety of your workforce
- control measures: A key element to risk assessments is identifying the hazards and control measures to either eliminate or minimise the hazard, so far as is reasonably practicable. It is important that in identifying control measures, that these are reasonable, practical and most importantly achievable. It will create more problems in the future if the business overcommits on control measures and in the event of an incident or complaint, cannot demonstrate compliance or achievement with those control measures
- prevention and intervention strategies: Where any potential psychosocial hazards are identified, it is important to develop strategies to prevent and intervene those hazards. These strategies can include implementing policy and procedures and increasing counselling and support services
- involvement of employees: Human resources managers should consider involving employees in identifying and managing psychosocial hazards. The level of employee involvement is dependent on the size and structure of the business
- ongoing evaluation: Human resources managers should regularly reassess the workplace to identify any potentially new psychosocial hazards and re-evaluate the effectiveness of the prevention and intervention strategies that are in place.
In our next instalment, we will take a closer look at the new Queensland Code of Practice for Managing Psychosocial Hazards in the Workplace and how implementing the code might look for your business.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.