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.
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’.
Some States had already moved to regulate psychosocial hazards:
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.
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:
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.
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) 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 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 was already knew the risks to mental health in the SSOU as evidenced by the terms of the VT Policy.
  HCA 12
  HCA 15
Be the first to receive the latest articles, news and publications.
On 1 June 2022, the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2001 (NSW) (Act) came into effect, implementing changes to the Crimes Act 1900 (NSW) (Crimes Act) in relation to...
With the Australian Labor Party forming a majority government, it’s important for business to reflect on the ALP election commitments regarding diversity and workplace relations reform and consider...
With the 2022 federal election this week, we summarise key workplace relations policies put forward by the major parties and implications for employers.
The Liberal-National Coalition (Coalition)...