In December 2018, Marie Boland released a report (Boland Report) that recommended the development of additional regulations on how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks. This fact sheet explains the changes and what employers should do to ensure they are compliant.
Regulations
On 20 May 2021, the Australian WHS Ministers of each jurisdiction met to discuss the Boland Report. The Ministers agreed that the WHS Regulations should be amended to deal with psychological injury. In June 2022, SafeWork Australia (a national policy body) released amended Model WHS Regulations that require businesses to manage psychosocial hazards. The Model WHS Regulations do not apply in a particular state or territory until that jurisdiction's regulations are amended. Regulations are law and must be complied with. Not all jurisdictions have implemented the Model WHS Regulations in the same way and there is no requirement that they do so.
Codes of Practice
In August 2022, SafeWork Australia released a Model Code of Practice that provides practical guidance to businesses on managing psychosocial hazards at work. For the Model Code of Practice to apply in a particular state or territory, it must first be approved as a Code of Practice in that jurisdiction. Not all jurisdictions have implemented the Model Code of Practice in the same way and there is no requirement that they do so. Whilst approved codes of practice are not law, courts may consider an approved code of practice as evidence of what is understood about a hazard and may rely on the code to determine what is practicable to mitigate the hazard in the relevant circumstances.
Current guidance in each Australian jurisdiction
Victoria
On 17 May 2021, the Victorian Government committed to introducing regulations to better prevent workplace psychological hazards and injuries. The proposed regulations, Occupational Health and Safety Amendment (Psychological Health) Regulations will amend the Occupational Health and Safety Regulations 2017 to recognise that hazards to psychological health are as harmful to employee safety and wellbeing as physical hazards.
The Regulations were initially expected to come into effect in July 2022 but have been delayed. The Victorian Government and WorkSafe Victoria are currently considering stakeholder feedback and progress is continuing in 2023.
In addition to defining psychosocial hazards and requiring employers to eliminate or reduce risks, Victoria will also necessitate a written prevention plan to be written if an employer identifies one or more psychosocial workplace hazard, and is expected to implement a requirement for employers with more than 50 employees to submit a de-identified report to WorkSafe Victoria twice a year with information about each reportable psychosocial complaint the employer received during the six month reporting period.
New South Wales
On 16 September 2022, the NSW Government implemented the Work Health and Safety Amendment Regulation which took effect on 1 October 2022.
The Work Health and Safety Amendment Regulation introduces "Psychosocial risks" to the Work Health and Safety Regulation 2017 (NSW) and provides definitions of psychosocial hazards and risks to the Regulations and introduces "55D - Control measures" requiring employers to implement control measures to eliminate or minimise psychosocial risks as far as reasonably practicable.
NSW also has also implemented the WHS Code of Practice which provides guidance on minimising and/or eliminating psychosocial workplace hazards.
The WHS Code of Practice reflects guidelines similar to those provided by the Model Code of Practice and also includes 10 scenarios for managing psychosocial risks and hazards in the workplace. The NSW WHS Code of Practice reiterates the necessity for employers to notify the regulator immediately after becoming aware of notifiable incidents.
As of 29/3/23 it is anticipated that the NSW Labor will agree to incorporate industrial manslaughter provisions in the national model OHS laws.
Queensland
The Queensland Government has introduced the Work Health and Safety (Psychological Risks) Amendment Regulation 2022 which also reflects the standards provided by the SafeWork Australia national model.
The Queensland Government has also approved the Managing the risk of psychosocial hazards at work Code of Practice which closely reflects the Model Code of Practice. The code encourages employees to report psychosocial hazards and reiterates that Part 6 of the WHS Act 2011 (QLD) provides protection for workers being victimised or discriminated against for raising psychological or physical workplace health issues. The regulations and code of practice will commence on 1 April 2023.
Tasmania
On 12 December 2022, Tasmania's Work Health and Safety Regulations were amended to include regulation on psychological risks.
On 4 January 2023, Tasmania's Code of Practice for managing psychosocial hazards in the workplace came into effect, following the Model Code of Practice. It outlines legal requirements for workplaces to prevent psychosocial hazards from occurring, and to effectively manage them when they do occur.
South Australia
South Australia has not yet implemented the Model WHS Regulations or the Model Code of Practice. It does have a general code for managing work health and safety risks which states that it should be applied to both physical and psychological risks: How to manage work health and safety risks - Code of Practice.
Western Australia
On 24 December 2022, Western Australia's Work Health and Safety (General) Regulations were amended to include regulation on psychological risks.
Western Australia has also implemented a WHS Code of Practice which it adapted from NSW's WHS Code of Practice.
Australian Capital Territory
The ACT has not yet implemented the Model WHS Regulations or the Model Code of Practice. It does have a general code for managing work health and safety risks which states that it should be applied to both physical and psychological risks: Work Health and Safety (How to Manage Work Health and Safety Risks Code of Practice).
Northern Territory
On 2 March 2023, the Northern Territory made new amendment regulations to to address psychosocial hazards in the workplace. They will come into effect on 1 July 2023.
The Northern Territory is also adopting the Model Code of Practice this will be approved for commencement by 1 July 2023. Further information can be found here.
What should employers do to comply with the Model Code?
The Model Code of Practice defines and describes psychosocial workplace hazards including guidance as to how to identify and manage them. The process provided is:
Identify risks: Identify the psychosocial workplace risks and understand the environment and conditions that could cause harm and consider how they might apply to the relevant workplace.
Assess risks: Understand the nature of the harm that a particular hazard may cause and assess how it may occur in the relevant workplace and the likelihood of it occurring.
Control risks: Implement reasonably practicable control measures to counter and/or prevent the hazard from occurring. Employers should eliminate risks if practicable to do so or implement effective measures to minimise the risk so far is reasonably practicable.
Review control measures: Review the implemented measures to ensure they are functioning as predicted, including over time. If a control measure is not working effectively, it should be reviewed and modified or replaced.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
