Recent statistics from WorkSafe Victoria indicate that nearly one in six Australian workers will experience a significant level of mental ill health within a four-week period. Each year, two in five Australians report leaving their jobs due to a poor mental health environment.
In May 2021, the Victorian Government proposed new regulations that set out employers and other duty holders' obligations to manage risks posed by psychosocial hazards in workplaces, but those regulations were delayed. A year later, Safe Work Australia issued its own regulations dealing with this subject matter. These have been adopted in four states. Victoria will not be adopting these because it is not part of the harmonised laws regarding occupational health and safety.
Meanwhile, WorkSafe Victoria has established a specialist Psychosocial Inspectorate to investigate psychosocial hazards and has released information on the risk categories that are more likely to lead to a WorkSafe investigation and potential prosecution.
The hazards more likely to attract attention are reports of aggression and violence, high job demands, bullying, exposure to trauma and/or sexual harassment/gendered violence. An inspector is likely to arrange an interview with the complainant to discuss the allegations and make enquiries at the workplace about their systems and processes to manage the risk in these cases. Depending on the outcome, the employer may receive an improvement notice and a follow-up onsite inspection. The case will then be closed or referred for comprehensive investigation and potential prosecution under the Occupational Health & Safety Act 2004 (OHSA).
An example of WorkSafe intervening in response to workplace bullying is its 2019 prosecution of a security company and its director for failing to provide a safe and healthy working environment. This followed a WorkSafe investigation that found the director led a culture of entrenched bullying. Improvement notices were issued but when WorkSafe inspectors returned, they found that the bullying behaviours continued. The company was fined $97,000 and the director $19,250 after guilty pleas.
Other lesser psychosocial hazards may attract a less interventionist approach from WorkSafe. These include reports of low job demands, low job control, poor support, poor organisational change, poor organisational justice, poor workplace relationships, low reward and recognition, remote and isolated work, poor environmental conditions, and/or low role clarity.
How can employers discharge their OHSA obligation regarding psychosocial hazards in the workplace?
A WorkSafe inspector called to a workplace following a complaint or report of a psychosocial safety issue will look to see if the employer has a system to identify, assess and control the risk posed by psychosocial hazards and then review the control measures put in place.
Employers that have followed these steps are less likely to have a WorkSafe inspection turn into an investigation.
Implementation of a system that identifies psychosocial hazards in the workplace
Employers can identify psychosocial hazards through human resources information, such as sick leave and absenteeism, exit interviews, staff turnover data, staff complaints and employee engagement surveys. Other useful information include OHS Committee meeting records, complaints and investigations reports, psychosocial risk assessments, records of past injuries and workers' compensation claims.
Implementation of a system to assess psychosocial hazards once identified
Once identified, the hazard is assessed in terms of its seriousness of the risk (i.e. frequency and duration of the hazard and the likelihood of potential harm), who is exposed and whether the risk is systemic or isolated to a specific task, work location or event. Often there are multiple risks, e.g. job demands and isolated work.
The employer then needs to assess the adequacy of existing controls and determine whether additional controls or modified controls are required.
Implementation of a system that develops measures to control identified risk in consultation with employees
Such measures can be categorised as follows:
- work design, i.e. work equipment and organisation of an employee's work tasks and responsibilities
- systems of work, i.e. the way in which work is done as dictated by policies, procedures, practices, equipment and materials
- management of work, i.e. structure, and governance, procurement, resourcing decisions affecting work demands
- environment, i.e. the physical workplace environment and environmental conditions
- plant, i.e. any machinery, equipment or IT infrastructure associated with the work is also important.
Effective control measures can be as simple as ensuring employees who are potentially at risk are adequately informed of hazards identified in the workplace.
In 2021, WorkSafe prosecuted a health service provider after a female nurse was exposed to inappropriate, sexualised behaviour while attending to a patient with impaired cognitive condition. The employer was fined $20,000 after a guilty plea to contraventions of the OHSA, which included a failure to inform staff about completing a document that records problematic patient behaviours identified during earlier shifts.
Implementation of a system that monitors and reviews the above steps on a continuous basis
Finally, regular meetings and discussions should be scheduled to monitor and review the control measures put in place. Corrective measures should be implemented as required, including:
- setting a standing agenda to review controls to ensure they are prioritised
- assessing controls against a criteria for risk reduction (e.g., are they having the anticipated impact/effect)
- routinely monitoring hazards at global, team or individual levels and adjusting controls as required.
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.