Proposed Psychological Health Regulations for Victorian employers are under consideration

Psychological safety in the workplace

All Victorian public sector employers have a duty under the Occupational Health and Safety Act 2004 (OHS Act) to provide and maintain a working environment for their employees that is safe and without risks to health, so far as is reasonably practicable.

The concept of health includes psychological health.

Given the increased public interest in workplace psychological safety and the increasing focus by WorkSafe in this area, the proposed Occupational Health and Safety Amendment (Psychological Health) Regulations (proposed Regulations) are much anticipated.

The proposed Regulations

The proposed Regulations are expected to clarify the existing employer duty set out in section 21 of the OHS Act concerning the management of workplace psychosocial hazards. If passed in the form in which they are currently drafted they will introduce two new employer duties.

The development of the proposed Regulations follows several reviews which recommended strengthening workplace health and safety laws, to better address risks to workplace psychological health.

The reviews have included the Review of Model Work Health and Safety Laws (known as the Boland Review), the Respect@Work Report and the Productivity Commission’s Inquiry into Mental Health. The Royal Commission into Victoria’s Mental Health System’s Final Report also highlighted the need to improve education and awareness concerning psychological health, to build safe and healthy workplaces and to prevent mental injury.

Public consultation in relation to the proposed Regulations closed on 31 March 2022, with 79 submissions having been received over the consultation period.

To date, the proposed Regulations have not been passed. It is understood that the Victorian Government is currently considering options for the development of the proposed Regulations, a Compliance Code and supporting guidance material.

Click here for further information about the proposed Regulations.

What is the purpose of the proposed Regulations?

The proposed Regulations will set out how duty holders can discharge their obligations under the OHS Act and will:

• provide clearer guidance to employers on how to identify and control risks to protect workers from psychological injury; and
• recognise that psychosocial hazards are just as harmful to employee health and safety as physical hazards.

What should public sector duty holders be doing now?

Here are the top three things that public sector duty holders should be doing now to discharge their current duty under the OHS Act, and in anticipation of the new requirements commencing:

1. Become familiar with existing WorkSafe guidance on managing workplace psychosocial hazards:
   WorkSafe has published information and guidance on its website, which can assist employers to understand what psychosocial hazards are and how they can be identified, assessed and managed.
2. Put structures in place to review policies and procedures:
   One of the expected changes is that risk control measures for psychosocial hazards will need to be reviewed at identified junctures, such as when a new hazard is identified or when an injury occurs. Having a process in place to facilitate timely reviews and consultation will ensure that organisations are in a strong position to comply with this requirement.
3. Assemble a compliance and implementation team:
   It is clear that implementation of the new requirements will necessitate organisation-wide engagement. For most Victorian Government Departments and agencies, it will not be a task that can be carried out by OHS and People & Culture teams alone. Public sector employers should therefore embark now on identifying the leaders best placed in the organisation to lead a process of identifying psychological risks and providing feedback on the efficacy of existing and proposed control measures.

What are the expected changes?

Requirement to identify psychosocial hazards

Employers should, so far as is reasonably practicable, identify psychosocial hazards.

Psychosocial hazards are defined in the proposed Regulations to mean:

‘any factor or factors in the work design, systems of work, management of work, carrying out of work or 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.’

Examples include bullying, sexual harassment, occupational violence or aggression (the psychological impact of this), exposure to traumatic content or events, high job demands, low job demands, low job control, poor support, poor organisational justice, low role clarity, poor environmental conditions, remote or isolated work, poor organisational change management, low recognition and reward and poor workplace relationships.

Control risks to health and safety associated with psychological hazards

Employers should, so far as is reasonably practicable, eliminate any risk associated with a psychosocial hazard.

Where it is not reasonably practicable to eliminate such a risk, the employer should reduce the risk by (in this order):

1. altering the management of work, the plant/equipment used, the systems of work, work design or the workplace environment; or
2. providing information, instruction or training; or
3. a combination of (1) and (2).

The proposed Regulations provide that an employer can only exclusively use the control measures in (2) if none of the measures in (1) are reasonably practicable. If a combination of measures are used, the measures in (2) must not be the predominant measure.

Written Prevention Plans

Under the proposed Regulations, if an employer identifies any one of five key psychosocial hazards in their workplace(s), an employer must develop and implement a written Prevention Plan that identifies the risk, identifies measures to control the risk and includes a plan for the implementation of any identified measures.

The five key psychosocial hazards are:

1. Bullying
2. Sexual Harassment
3. Occupational Violence or Aggression (the psychological impact of this)
4. Exposure to Traumatic Content or Events
5. High Job Demands

While it's not a current requirement for duty holders, the development of written Prevention Plans is one tool that duty holders can use in discharging their obligations under the OHS Act right now.

Duty to Report

The proposed Regulations also contemplate that employers (who have a threshold number of employees) will be required to report to WorkSafe periodically about the number of complaints received in relation to the following psychosocial hazards:

1. Bullying
2. Sexual Harassment
3. Occupational Violence and Aggression

The required information will include the type of psychosocial hazard, the gender of the persons involved in the complaint and a description of the workplace relationship between the persons involved in the complaint.

In anticipation of this new duty commencing, Victorian public sector employers should be reviewing their workplace systems for capturing this data.

Consequences of not complying with OHS duties

A breach of the employer duty under the OHS Act is a criminal offence that can be prosecuted, and over the past few years there have been several examples where WorkSafe has done so.

Since November 2023, WorkSafe has prosecuted multiple employers for breaching their duty to provide and maintain a working environment for their employees that is safe and without risks to health relating to psychosocial hazards (including sexual harassment, bullying, and other types of workplace harassment). Other Australian regulators have also been increasingly active in this area.

How the VGSO can help

Our dedicated OHS team has significant experience in advising Victorian public sector employers on managing psychosocial risks and in acting for employers in relation to WorkSafe investigations, challenging Improvement Notices through internal and external review and in acting for public sector employers when criminal charges are filed.

We can:

• undertake a review and/or gap analysis of existing policies and procedures to identify areas which may be improved in order to align with WorkSafe guidance;
• provide training to Boards and leadership teams on the OHS framework applicable to psychosocial risks, including by reference to recent cases;
• support employers with responding to compliance and enforcement action in connection with alleged breaches concerning the management of psychosocial hazards; and
• undertake privileged investigations into OHS issues for the purpose of employers receiving legal advice in relation to their obligations under the OHS Act and regulations.

Please contact us should you require any advice or assistance.