There is an increasing focus on employers to manage psychosocial hazards associated with their workplace, following the Marie Boland 2018-2019 review of Australia’s model WHS laws and the impacts of the COVID-19 pandemic on mental wellbeing.
This week SafeWork Australia published its finalised national model WHS Code of Practice for managing psychosocial hazards at work.
The Code comes off the back of recent changes to the Model WHS Regulations, to impose a positive obligation on persons conducting a business or undertaking (PCBUs) to manage and guard against the risk of psychosocial hazards in the workplace. The Model WHS Regulations also introduced a definition of psychosocial hazards, outlined below, as well as controls to manage these risks. Victoria, who is not a harmonised State under the Model WHS laws, also amended its WHS laws to impose a positive duty to manage psychosocial hazards.
Under existing WHS laws PCBUs have a primary duty of care to ensure the health and safety of workers and others, which includes both physical and psychological health. The duty to manage psychosocial hazards at work is therefore not a new one. However, the Boland Review identified that many organisations were concerned due to the lack of Codes and or regulations in relation to psychosocial hazards, and how to control these risks.
The Code clarifies how PCBUs can meet this obligation.
The Code gives advice on identifying psychosocial hazards, assessing and controlling the risks, reviewing control measures, recording the risk management process, and conducting WHS investigations.
What are psychosocial hazards?
Psychosocial hazards are hazards that may cause psychological and physical harm and arise from or relate to, the design or management of work, the working environment, plant at a workplace or workplace interactions or behaviours. This covers a broad field and includes hazards such as:
- job demands;
- low job control;
- poor support;
- lack of role clarity;
- poor organisational change management;
- inadequate reward and recognition;
- poor organisational justice, being inconsistent, unfair, discriminatory or inequitable management of decisions and applications of policies, including poor procedural justice;
- traumatic events or material;
- remote or isolated work;
- poor physical environment;
- violence and aggression;
- harassment including sexual harassment; and
- conflict or poor workplace relationships or interactions.
How does the Code fit in with your WHS responsibilities?
The Code provides practical guidance on how to comply with the legal standards imposed by the model WHS Act and Regulations. Specifically, the Code encourages workplaces to adopt risk management processes that target the identification, management, and control of workplace psychosocial hazards.
To have legal effect in a jurisdiction, a model Code of Practice must be approved as a code of practice in the jurisdiction.
SafeWork NSW introduced a similar Code of Practice for managing psychosocial hazards at work, based on guidance previously released by Safe Work Australia. Western Australia followed suit with a Code of Practice adapted from the SafeWork NSW Code.
The Code is otherwise not yet approved by the harmonised States and Territories.
While an approved code of practice is not legally binding, Courts may regard an approved code of practice as evidence of what is known about a hazard, risk or control and may rely on the relevant code to determine what is reasonably practicable in the circumstances. Queensland WHS laws go one step further, by requiring PCBUs to comply with a Code of Practice approved by the State (or to manage hazards to a standard that is the equivalent to or higher than the standard under a code).
The recommendations contained in the Code do not represent the only acceptable way for PCBUs to discharge their obligations. Where alternative approaches achieve the same or better results, this will satisfy the legal standards.
Organisations will likely have risk management systems in place to manage their current hazards. Employers should however carefully review their current practices alongside the Code and the Model Regulations to ensure they have appropriately identified the psychosocial hazards in their organisation, and the control measures to manage these, to make sure they are meeting their legal requirements.
What should PCBUs do to comply with the Code and the Model Regulations?
The Code sets out guidance on identifying psychosocial hazards, assessing and controlling the risks, reviewing control measures, recording the risk management process, and conducting WHS investigations. While organisations would be familiar with this framework for assessing and managing risks the Code provides useful guidance on how to take these steps in relation to psychosocial hazards which can be a difficult area to manage. A summary of this process is set out below:
- Identify the psychosocial hazards
The Code recommends consulting with workers to identify what specific hazards are relevant, using surveys and reviewing previous records and information, including records of injuries and absenteeism and turnover data to look for trends.
- Assess the risks
Once the psychosocial risks have been identified, the next step outlined in the Code is to assess the severity of the risks. A risk register, outlining the hazards and the duration, frequency and severity of each risk, may be useful for this step. A PCBU should also assess the psychosocial hazards collectively, to identify the potential impact.
- Control the risks
As with other risks to health and safety, for psychosocial hazards, a PCBU must eliminate the risks if it is reasonably practicable to do so, or otherwise minimise the risks so far as reasonably practicable.
The Code provides information on the control measures that can be implemented for each common psychosocial hazard, for example:
- Review control measures
The final step outlined in the Code is to review the control measures regularly.
Recording the process
Given the requirements set out in the Model Regulations, and that the Code can be referred to in proceedings as a standard, PCBUs should ensure they record their risk management process regarding their ongoing assessment, management and review of psychosocial hazards and the outcomes. This should include records of consultations with workers.
PCBUs are on notice that psychosocial hazards in the workplace need to be appropriately managed. PBCUs can manage these risks by following the steps set out in the Code and applying them to the specific identified psychosocial risks of their workplace.
Importantly, the introduction of the Code signals that WHS Regulators will be paying close attention to the management of psychosocial hazards.
We recommend that PCBUs carefully consider the Code and the Model Regulations and assess how psychosocial risks can be managed within their organisation.