Summary and Comment – Occupational Health and Safety Amendment (Psychological Health) Regulations Draft

WorkSafe has just released this draft for public comment which is planned to come into operation 1 July 2022. The purpose of this article is to summarise the key requirements in the draft and comment on my opinion of the draft. Here is the link to the draft and related information https://engage.vic.gov.au/proposed-psychological-health-regulations

The objectives of the Regulation

  • to promote the importance of psychological health
  • to require employers to identify and control psychosocial hazards
  • to require employers to review/ revise measures implemented to control associated risks
  • to require employers to have in place a written prevention plan for certain psychosocial hazards
  • to require employers to periodically report to WorkSafe certain data on complaints of bullying, sexual harassment and aggression or violence.

Some key definitions

  • applicable employer – means an employer that has 50 employees or more at any point in time during the reporting period
  • high job demands – means sustained or repeated physical, mental or emotional effort which is unreasonable or frequently exceeds the employee’s skills or capacity
  • psychological response – includes cognitive, emotional and behavioural responses and the physiological processes associated with them;
  • psychosocial hazard – means any factor or factors in—
    • the work design – the equipment, content and organisation of an employee’s work tasks, activities, relationships and responsibilities within a job or role; or
    • the systems of work; or
    • the management of work; or
    • the carrying out of the 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 – Bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, 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, poor workplace relationships.

  • reportable psychosocial complaint means a complaint involving any of the following psychosocial hazards—
    • aggression or violence
    • bullying
    • sexual harassment
  • reporting period – Jan to June & July to Dec each year

Duties of Employers

  • Identify psychosocial hazards
  • control psychosocial hazards
    • Hierarchy of control:
      • Eliminate
      • Reduce risk altering:
        • Management of work or
        • plant or
        • systems of work or
        • work design or
        • work environment
      • Using information, instruction or training (only exclusively used if reduction methods are not reasonably practicable)
  • Review and revise measures taken

Note:  all these duties include consultation with employees/HSRs

Prevention Plans

If any of the following are identified, a written prevention plan must be developed:

  • aggression or violence
  • bullying
  • exposure to traumatic content or events
  • high job demands
  • sexual harassment

The prevention plan must

  • identify the risks
  • include control measures
  • detail consultation measures
  • include details of any revisions

Prevention plans must be made available for

  • inspectors
  • HSRs (if any)
  • OHS Committees (if any)

Reporting

All applicable employers (50 employees or more) must submit 6-monthly written psychosocial complaints reports to WorkSafe regardless of whether or not there are

complaints made. Reports must be kept by the employer for 5 years and be made available to a WorkSafe inspector, an HSR or an OHS Committee on request.

Reports must include:

  • The hazards involved with any complaints
  • The gender of the persons involved in any complaints
  • Description of workplace relationships between persons involved in the complaint

Note: Prevention Plans and Reporting Requirement duties extend to an independent contractor engaged by the employer and any employees of the independent contractor.

Penalties

Penalties will be enforced as at September 2023 and will include 60 penalty points or $10,904.40 for the natural person and 300 penalty points or $ 54,522 for a body corporate.

My comments and thoughts

Firstly I think it is great that there are some regulations coming with relation to Psychosocial Hazards. Psychological health has been included in the OHS legislation in Victoria ever since the 2004 OHS Act came into play.  The words were there, but until now it was up to OHS consultants and managers to work out what that meant.  Once we have the regulations finalised, I am sure there will be a Compliance Code so that we can get some practical guidance as to how to comply with the regulations. Given the steep rise in mental health issues with COVID, it is very timely for this to become a legislative focus.

The issues I have with the draft are:

  1. I don’t understand why sexual harassment is included as a reportable psychosocial complaint, but not discriminatory harassment.  Both behaviours have been traditionally covered by Equal Opportunity legislation. I don’t have a problem with OHS legislation including this, but why not all of it, ie include discriminatory harassment as well. I also think complaints about stress and fatigue should be included.
  2. The fact the HSRs and OHS committees can have access to the 6-monthly reports means that confidentiality of reporting may be compromised. Even if names are not included in the reporting, in a smaller organisation or deportment, it will often be obvious who the people involved were based on the items required in the report.

With regards to the prevention plan, I wonder if this will need to be a plan on its own, or could it be action items included in a general OHS action plan? I also wonder what are the common action plan items that we might see? Perhaps a Compliance Code could list key ideas for hazard identification and controls with suggested actions for employers to choose from, for example see table below. Hopefully there will be reporting and planning templates that make the process easy for employers to implement.

With regards to the requirement for a Mental Health Plan, here is a great way to get started https://www.headsup.org.au/healthy-workplaces/strategies-for-healthy-workplaces/action-plan

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s