New positive duty to manage mental health and wellbeing
From 1 April 2023, persons conducting a business or undertaking (PCBU) in Queensland will have a positive duty under the Work Health and Safety Act 2011 (Qld) to manage psychosocial risks in the workplace.
Equivalent provisions are already in effect in New South Wales, with the new duties to manage psychosocial risks having commenced in the Work Health and Safety Regulation 2017 (NSW) on 1 October 2022.
Every organisation is capable of being subject to situations impacting their workers’ mental health which will require active intervention and oversight. Many supervisors and managers are not equipped to recognise such potential situations, or indeed to understand the appropriate response. Mismanagement of psychosocial risks can lead to inconsistency of performance and productivity, workforce supply issues, staff turnover, team dysfunction, grievances and litigation. The new statutory duties will require PCBUs to take a more active approach to addressing mental health and wellbeing in the workplace.
The Work Health and Safety Regulation 2011 (Qld) is being amended to incorporate an express duty that PCBUs properly manage psychosocial risks. Consistent with the existing duty to manage physical risks, the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (Qld) requires duty holders to identify psychosocial hazards and manage the risks not only to workers but to other persons (e.g. members of the public or visitors to the workplace) that may be affected by the activities of the business.
What are psychosocial hazards and risks? What do the changes mean for PCBUs?
Examples of psychological hazards may include, but are not limited to:
- Exposure to traumatic events, i.e. reading, hearing or seeing accounts of abuse or neglect;
- Violence and aggression, i.e. from other workers, customers, or members of the public;
- Bullying and harassment, i.e. repeated unreasonable behaviour, or behaviour due to personal characteristics such as age, race, religion and sexual harassment;
- Lack of role clarity i.e. conflicting or changing responsibilities and expectations;
- Job demands, i.e. sustained high or low levels of physical, mental or emotional effort, unreasonable or excessive time pressures;
- Work design, i.e. highly repetitive tasks;
- Poor organisational change management, i.e. insufficient information, consultation, training or support during times of change.
Psychosocial risks that arise from hazards must be assessed and controls assigned so as to eliminate or mitigate the risk, so far as is reasonably practicable. The new amendments to the Regulations list what matters a PCBU must have regard to when determining suitable controls for psychosocial risks, such as the design of work; the physical work environment; and interactions and behaviours in the workplace.
Importantly, Safe Work Australia recently published the Model Code of Practice: Managing psychosocial hazards at work. We anticipate that the Queensland Government will soon adopt the Code as an approved code of practice. The Code will therefore become the key resource for PCBUs to understand and demonstrate their compliance with the new Regulations. There may, of course, be changes made, and we will keep you informed – watch this space.
Why have the changes come about?
These changes are the Queensland Government’s response to amendments made to the Model WHS Laws published by Safe Work Australia earlier this year – a key amendment being the management of psychosocial risks (see Part 3.2, Division 11 of the Model Work Health and Safety Regulations). These model laws act as a framework for States and Territories to adopt, that provides consistency in Work Health and Safety laws across each jurisdiction in Australia.
How can we help?
We can assist you to understand what active steps your organisation will need to take in preparation for the 1 April 2023 deadline, we also offer tailored training to help your organisation manage mental health and wellbeing risks.
For more information about psychosocial risks, how they are best managed alongside the workers’ compensation framework, and the key role leaders play in minimising the increasing prevalence of stress claims by employees, please reach out to us.
Thank you to Karl Christensen for his assistance in preparing this article.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.