The Psychosocial Code of Practice – what’s happening with enforcement?
The changes to psychosocial health regulation in Queensland (see our earlier article) have been in play for just four months, and already regulators, unions and workers are regularly referring to the Code of Practice: Managing the Risk of Psychosocial Hazards at Work (Code).
So, what are we seeing in the field?
Regulators and their inspectors are already responding to psychosocial complaints made by workers and conducting investigations and inspections. Practically, we have seen:
- Workplace Health and Safety Queensland (WHSQ), which has established specialist teams to enforce the Code, responding to complaints and requiring duty holders to demonstrate steps taken to comply with the Code;
- WHSQ issuing communication kits which, when discussing hazards, states:
‘… poor organisational justice refers to processes or decisions that are perceived as unfair. Examples include inconsistent application of policies and procedures, unfairness or bias in decisions about the allocation of resources and work, or poor management of underperformance.’
- Comcare (the Commonwealth WHS regulator) issuing an improvement notice following multiple inspections of a government agency about the reported hazard of ‘managerial administrative action for performance management, code of conduct action, a review of flexible working hours and a restructure’;
- Resources Safety and Health Queensland consulting with Queensland resources participants about implementing these laws across the Queensland resources industry.
Unions and workers
We are seeing the Code regularly referenced and used by workers and unions, including:
- The Code referenced at various points throughout disciplinary processes and throughout performance management, noting the Code does contain guidance about these processes, including example controls such as:
- ‘provide psychosocial advice to supervisors conducting disciplinary processes’; and
- ‘making it clear that reporting concerns about psychosocial hazards is encouraged and that disciplinary action will not be taken against workers who make a report (noting response procedures may include a process for addressing vexatious claims).’
- Various unions issuing guidance material to members about the Code, including statements that:
‘Australia has come a long way in recognising the importance of addressing workplace mental health, but there’s still a long way to go.
The best way to protect your mental health at work? Joining your union.’
What is needed to comply with the Code?
Complying with the Code requires front line leaders to be empowered, usually through training, on how to identify psychosocial hazards and what to do when these arise. Unlike due diligence training for officers, the training sessions our WHS team are delivering are pitched at front-line people leaders. These people leaders are, in a practical sense, the key to compliance and promoting a psychosocially safe workplace.
Government agencies and businesses can expect that, at some time in the near future, a regulator, union or worker is likely to ask:
- for the production of formal risk assessments that have been completed about psychosocial hazards;
- how consultation with workers, including Health and Safety Representatives, has been carried out when managing psychosocial hazards; and
- what processes and procedures exist for supervisors and workers who encounter psychosocial hazards in the workplace.
If these things are not in place, it is highly likely breaches of the Code (and therefore the WHS laws) may be alleged. The time to act is now!
How can we help?
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.