Managing workplace psychosocial hazards

Recent legislative developments and a High Court decision confirm that workplace behaviours are now squarely a work health and safety issue and that employers have ongoing obligations to identify and manage psychosocial hazards in their workplace. Employers should be vigilant and take immediate steps to proactively identify and manage these workplace hazards, including by using the multiple sources of guidance material now available.

New National Codes and Regulations dealing with Psychosocial Hazards

One of the key recommendations of the review of the harmonised WHS laws (the Boland Review) was to include model WHS regulations dealing with the identification of psychosocial risk associated with psychological injury and the appropriate control measures to manage those risks.  Importantly, this recommendation was supported by Sex Discrimination Commissioner Kate Jenkins in the Respect@Work report.

The model WHS Regulations have now been amended to define psychosocial hazards and risks and require a person conducting a business or undertaking to manage psychosocial risks in accordance with the management of all risks to health and safety.  Importantly, new regulation 55A defines psychosocial hazard to include a hazard that arises from, or relates to, a work environment or workplace interactions or behaviours where that hazard may cause psychological harm.

The Regulations also specify what matters a person must have regard to in determining appropriate control measures to implement in the workplace to eliminate or these reduce risks, so far as is reasonably practicable, including among other matters, how the psychosocial hazards may interact or combine, the design and systems of work and workplace interactions or behaviours.

These amendments follow the development of the model code of practice by Safe Work Australia in January 2021 ‘Preventing workplace sexual harassment’.

Other jurisdictional responses to managing psychosocial hazards and health

Some States had already moved to regulate psychosocial hazards:

• Victoria – In Victoria submissions on the Occupational Health and Safety Amendment (Psychological Health) Regulations closed on 31 March 2022 and are currently under review. The regulations are proposed to come into effect from 1 July 2022 (with the penalty provisions commencing from 1 September 2023) and at this stage, will require employers to:
  • identify psychosocial hazards in the workplace (psychosocial hazards are presently defined to include any factor in the work design, systems of work, management of work, the carrying out of work or personal or work-related interactions that may arise in the working environment that may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety);
  • control the risk of hazards and review control measures implemented to control risks associated with psychosocial hazards;
  • develop prevention plans where one of the following hazards have been identified in the workplace – aggression or violence, bullying, exposure to traumatic content or events, high job demands, sexual harassment. This duty imposed on an employer extends to an independent contractor engaged by the employer and any employees of the independent contractor;
  • submit reports (which is proposed to be every six months) to Worksafe regarding any psychosocial complaints relating to hazards including bullying, sexual harassment or aggression/violence received during the reporting period. These reports are still required to be prepared even if no complaint was made and extend to independent contractors engaged by the employer and their employees. This obligation applies only to applicable employers who have 50 employees or more at any point in time during the reporting period.

As the regulations are still under review it remains to be seen whether there will be changes from what has been proposed. It is expected that guidance material will be developed by Worksafe following the implementation of the regulations.

• New South Wales - introduced the Code of Practice: Managing Psychosocial Hazards at Work. The Code identifies common psychosocial and mental health hazards, steps for prevention, and investigation procedures.
• Western Australia - The following codes were introduced in Western Australia on 15 February 2022:
  • Code of Practice on Workplace Behaviour;
  • Code of Practice on Psychosocial Hazards in the Workplace; and
  • Code of Practice on Violence and Aggression at Work.

Model WHS Laws amended

The national model Work Health and Safety (WHS) laws have also been amended to reflect other recommendations from the Boland Review.  Although these changes have been made to the model WHS laws, they do not automatically apply in harmonised jurisdictions (being all jurisdictions except Victoria) and must be adopted by each government before the changes take effect.

Other amendments include:

• adding gross negligence as a fault element to the category 1, reckless conduct offence, allowing prosecutors to prove either the fault element of gross negligence or of recklessness;
• prohibiting insurance against WHS penalties;
• clarifying that a work group is negotiated with workers who are proposed to form the group;
• allowing health and safety representatives or deputy HSRs to attend HSR courses of their choice.

While the Boland Review’s recommendation to add the offence of industrial manslaughter to the model Act was not actioned, relevant WHS legislation in the ACT, NT, Qld, WA and Victoria already contain industrial manslaughter provisions.

Recent High Court case: Kozarov v State of Victoria

The High Court recently considered an employer’s duty to provide a safe system of work to its employees in the case of Kozarov v State of Victoria (Respondent)[1] where the employee had suffered a psychiatric injury arising from trauma associated with her role. Ms Kozarov was employed by the Respondent as a solicitor in the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecutions. The primary question in the appeal was whether the Respondent's failure to take reasonable measures in response to "evident signs" of the appellant's psychiatric injury from vicarious trauma suffered in that role caused the exacerbation and prolongation of the appellant's psychiatric injury.

The Respondent had a duty to take all reasonable steps to provide Ms Kozarov with a safe system of work and to establish, maintain and enforce that system. It found in Ms Kozarov’s case the Respondent had breached that duty in respect of her employment by failing to implement steps required to prevent injury to its employees, including Ms Kozarov. This included failing to implement its own Vicarious Trauma Policy (VT Policy) which required management to encourage staff to rotate to minimise exposure to traumatic work to protect employees’ mental health. In respect of causation, the High Court confirmed the Respondent had been on notice by late August 2011 that Ms Kozarov was at risk of harm from her work and that the Victorian Court of Appeal erred in rejecting the trial judge's finding that Ms Kozarov would have co-operated with steps to rotate her out of the SSOU, had those steps been taken subsequent to occupational screening at the end of August 2011. The High Court found that the Court of Appeal erred in finding a lack of causation between the breach of duty and Ms Kozarov’s injury.

Relevantly, Kiefel CJ and Keane J confirmed that the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee. In this case, the employer is duty-bound to be proactive in the provision of measures to enable the work to be performed safely from the commencement of employment. Their Honours commented that although this case concerned evident “signs” that obliged the Respondent to take steps to obviate the risk of Ms Kozarov’s psychiatric injury (on the basis of the High Court’s decision in Koehler v Cerebos (Australia) Ltd[2] which examined the reasonably foreseeability of psychiatric harm developed in the course of employment), it was not necessary for Ms Kozarov to have exhibited such signs in circumstances where the Respondent already knew the risks to mental health in the SSOU as evidenced by the terms of the VT Policy.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).