Victorian employers get new requirements on psychosocial hazards

Victorian employers must ensure that their policies and procedures for managing psychosocial risks satisfy the requirements of the Regulations and we recommend a framework be put in place to assist in managing those risks, including preventing and addressing clear risks such as bullying, sexual harassment and occupational violence, but also when managing significant change management, performance and disciplinary processes.

Occupational Health and Safety in Victoria

As the only jurisdiction in Australia not to have adopted the model Work Health and Safety laws, the primary piece of legislation in Victoria governing an employer's health and safety obligations is the Occupational Health and Safety Act 2004 (OH&S Act). While the conventional perception of OH&S risks in the workplace brings to mind slippery floors, dangerous construction sites and other physical risks, "health" includes psychological health and OH&S obligations extend to eliminating and otherwise managing the presence of psychological risks in the workplace.

Psychosocial safety, from an OH&S perspective, involves consideration of how a particular workplace environment and activities in the workplace affect people's psychological wellbeing and requires employers to ask themselves: what does a workplace look like that ensures a person's safety from factors that pose a threat to psychological wellbeing, so far as is reasonably practicable? And how do I manage those risks?

These threats are called "psychosocial hazards" by the Regulation, which have as their objects to further the objectives of the OH&S Act by providing for:

1. the identification of psychosocial hazards; and

   • the control of risks associated with psychosocial hazards; and

   • the review of risk control measures associated with psychosocial hazards.

The Regulations do not introduce an entirely new framework for the way in which OH&S risks must be managed; rather they prescribe specific obligations for psychological health, consistent with an employer's existing obligation to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

Definition of psychosocial hazard

The Regulations will introduce a statutory definition of "psychosocial hazard":

"any factor or factors in—

        (a)        the work design; or

        (b)        the systems of work; or

        (c)        the management of work; or

        (d)        the carrying out of the work; or

        (e)        personal or work-related interactions

that may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety."

A "psychological response" is defined to include "cognitive, emotional and behavioural responses and the physiological processes associated with them".

These definitions are more comprehensive than the previous definitions used by WorkSafe Victoria and comparative definitions adopted in the model WHS law in other Australian jurisdictions.

The Regulations also include examples of behaviours or actions that are considered to be psychosocial hazards. Many employers will already be familiar with these hazards as they are consistent with the existing guidance from WorkSafe Victoria. They include:

Employer's obligations to control and review risks

Part 4 of the Regulations sets out an employer's obligations to identify and control psychosocial hazards, so far as is reasonably practicable, and to review control measures in specified circumstances.

1. Identification of psychosocial hazards

An employer must, so far as is reasonably practicable, identify psychosocial hazards. While the Regulations don't specify how any employer must go about this task, they refer to the existing duty for employers under the OHS& Act (see section 35) to consult with employees in identifying or assessing hazards or risks to health or safety at a workplace.

2. Control of risk

An employer will be required, so far as is reasonably practicable, to eliminate any risk associated with a psychosocial hazard. If a risk cannot be identified, it must be reduced by:

• Altering the management of work, plant, systems of work, the work design, or work environment; or

• By using information, instruction or training.

The use of information, instruction or training may only be relied upon as an exclusive control measure, where none of the control measures involving making alterations are reasonably practicable. If a combination of control measures is being used, information, instruction or training must not be the predominant control measure.

For many employers, who currently rely on dissemination of information, instruction or training to control the risk of psychosocial hazards, they will need to review their current process to determine whether it is reasonably practicable to otherwise alter their practices to reduce these risks.   

3. Review of control measures

An employer must review and, if necessary, revise any measures implemented to control risks associated with any psychosocial hazards in the following circumstances:

• before any alteration is made to any thing, process or system of work that is likely to result in changes to risks associated with psychosocial hazards; or

• if new or additional information about a psychosocial hazard becomes available to the employer; or

• if an employee, or a person on behalf of an employee, reports a psychological injury or a psychosocial hazard to the employer; or

• after any incident occurs to which Part 5 of the Act applies that involves one or more psychosocial hazards; or

• if, for any other reason, the risk control measures do not adequately control the risks associated with a psychosocial hazard; or

• after receiving a request from a health and safety representative.

Employers will need to implement clear policies and procedures for reviewing control measures that set out the process for reviewing, including key responsibilities, notification of appropriate persons when the prescribed circumstances occur to trigger a review and record keeping, to ensure any actions undertaken in reviewing and revising control measures are clearly documented. This includes any decisions not to revise a control measure following a review process.

Exclusions

Also notable is what has not been included in the Regulations. Several proposed provisions featured in the 2022 exposure draft of the Regulations have not been incorporated in the Regulations. These include:

• a requirement for larger employers to report any reportable "psychosocial complaint" they have received and to keep records of such reporting. The proposed definition of a reportable psychosocial complaint would have included "aggression or violence, bullying or sexual harassment".

• definitions of ”bullying” and ”high job demands”.

• a requirement for employers to use "prevention plans", which would have required employers to keep written records of identified risks, control measures and implementation plans for those control measures, as well as the details of their compliance with consultation obligations. While not in the Regulations, WorkSafe has published a template prevention plan to assist employers to comply with new risk management requirements in the Regulations process and to help control the risk of psychosocial hazards.

Most notably, the exposure draft proposed the introduction of penalties for non-compliance with several provisions. The Regulations have not introduced any new penalties under the OH&S framework.

Employer checklist

WorkSafe Victoria has also published a Compliance Code as a detailed resource for assisting employers in understanding their duties and meeting their obligations under the Act and Regulations.

In order for employers to ensure their organisation is compliance ready when the Regulations come into effect on 1 December 2025, they should start by undertaking the following key steps: 

1. Review your current policies and procedures. Ask:

• Do we have policies in place that expressly deal with psychosocial hazards, or do our OH&S policies only focus on physical hazards?

  • Do we have procedures which clearly set out the process we will follow to identify, assess, control and review psychological hazards in the workplace, including appropriate methods for consultation with our employees?

  • Do we need to update existing policies to align with the new definition of psychosocial hazards?

  • Do our policies and procedures reflect our current business practices and actual OH&S risks in our workplace?

2. Review your control measures for psychosocial hazards. Ask:

• What control measures do we currently have in place?

  • Do our control measures predominantly involve information, instruction and training? If so, how recently was information, instruction and training distributed or delivered.

  • What can we alter about the work, systems, design or work environment that can reduce risk and if not, have these assessments been appropriately documented?

3. Consider activities in the organisation that may present particular psychosocial risks, including major change, performance management and disciplinary processes.  Ask:

• Have we integrated OHS risk assessments and consideration into such processes; and

  • Are our managers and leaders aware of these obligations and do they know how they can fulfil them in implementing these processes?