November 30, 2022
Psychological risks: Employers now have a duty to act
NSW-based employers now have a positive obligation to manage, respond to, and prevent psychological risks in the workplace. The new laws, which amend the Work Health and Safety Regulation 2017, became effective on 1 October 2022.
Although employers were already responsible for their employees’ psychological health, the new regulation makes their duty more specific. In doing so, it provides that they must manage psychological risks the same way they currently manage physical risks in the workplace.
‘Psychosocial risks and hazards’
The changes require employers to implement control measures to eliminate ‘psychosocial risks’ as far as is reasonably practicable. And, if they can’t eliminate these risks altogether, they must attempt to minimise them as far as is reasonably practicable.
A psychosocial risk is then defined as one that arises from a ‘psychological hazard’, namely:
- the design or management of work, or
- a work environment, or
- plant at a workplace, or
- workplace interactions or behaviours.
The new regulation also lists different examples of psychological hazards, including:
- Role overload or underload, i.e. giving someone too much or too little work than is reasonable
- Supervisors, managers and co-workers failing to give proper support
- Failing to provide proper reward and recognition
- Being exposed to traumatic events
- Conflict about roles, lack of role clarity or low job control
- Conflict or poor workplace relationships between workers
- Bullying, harassment – including sexual harassment – and workplace violence
- Poor procedural justice, i.e. the processes your organisation uses for making decisions
- Hazardous physical working environments, and
- Remote or isolated work – this can be a result of the location, time or nature of the job.
What you need to do to meet these obligations
The new regulation says that you must identify any reasonably foreseeable psychological hazards that give rise to health and safety risks. Once you’ve done this, you must introduce, maintain and review control measures to eliminate or reduce them. The regulation doesn’t detail exactly what you should do. Instead, this will depend on the nature of the risk and the workplace. However, you must consider all relevant matters when determining what control measure you’ll implement.
This includes taking into account:
- How often a worker is exposed to the psychological hazard, as well as for how long and severe that exposure is
- Any interaction between different psychosocial hazards
- How you design work, including any job demands and tasks you assign
- Your systems of work, including how you manage, organise and support work
- The design, layout and environmental conditions of the workplace, as well as any substances and structures at the workplace
- How people behave or interact at the workplace, and
- Any information, training, instruction and supervision you provide to workers.
What the changes mean for you as an employer
To meet your new positive obligations as an employer, you should, as a minimum:
- Have proper training and induction programs in place, as well as thorough policies and procedures. You should also ensure your employees and managers understand these and apply them impartially.
- Ensure you provide enough training and support to workers, especially for complex tasks.
- Ensure you provide enough training and support to managers and supervisors on what’s expected of them and how to recognise the warning signs.
- Make sure staff understand the requirements of their role and carry out work commensurate with their skill and experience.
- Review the amount of work you’ve given employees to make sure you’re not overworking (or underworking) them.
- Have support systems for employees who experience traumatic or emotionally-intense situations or are regularly interacting with aggressive third parties, such as customers
- Focus on your culture and the wellbeing of staff, including having regular staff satisfaction surveys. This is particularly important when staff are working from home.
One final thing…
The new laws bolster existing WHS laws to explicitly call out psychological risks – something that hasn’t been done in the past. This means that workers subjected to behaviour once mainly regulated by other Acts – such as workplace bullying and sexual harassment – may now be more likely to bring a WHS claim.
To protect against this as an employer, you should use the same process you do when taking all steps to eliminate physical risks, i.e. Identify (the hazards), Assess (the risk), Control (the hazard), and Review (control measures).
You can read more about how to do this on the SafeWork Australia website.
If you’d like to know more about how these changes specifically impact your workplace, get in touch.