SafeWork NSW has approved Australia’s first Work Health and Safety (WHS) Code of Practice on managing psychosocial hazards at work (the Code). The Code took effect on 28 May 2021.
The WHS Act provides that an approved code of practice is admissible in Court proceedings as evidence of whether or not a duty or obligation under the WHS Act has been complied with. A Court may have regard to an approved code of practice as evidence of what is known about a hazard or risk, risk assessment or risk control, and rely on the code of practice in determining what is reasonably practicable in the circumstances. Therefore, compliance with the Code will be an essential part of organisations complying with their duties under the WHS Act in respect of psychosocial hazards and risks.
The Code offers practical guidance to persons conducting a business or undertaking (PCBU) and other duty holders under the Work Health and Safety Act 2011 (NSW) (WHS Act) on the process for identifying and managing psychosocial hazards and risks at work, to assist PCBUs and other duty holders in meeting their WHS responsibilities.
Relevantly, the Code reinforces that the WHS Act defines ‘health’ as including both physical and psychological health. In order to meet the primary duty of care under the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers and other persons, PCBUs must implement a systematic process for identifying and managing psychosocial hazards and risks.
The Code highlights some common failures in the risk management process, such as focusing too closely on individual workplace behaviours, rather than the psychosocial hazards that contribute or give rise to those behaviours, and relying too heavily on administrative controls.
The Code provides specific guidance on how to implement the four step risk management process for psychosocial hazards, as follows:
- Identifying psychosocial hazards – the Code provides guidance on common psychosocial hazards and the process that organisations should follow to identify them. The Code recommends a combination of collecting information (e.g. culture surveys, reviewing complaints and investigations), observing work activities and consulting with workers in order to identify relevant hazards. Organisations should look for both internal hazards (e.g. the nature of work carried out) and external hazards (e.g. economic pressures) and always consider the underlying sources of psychological hazards and risks.
- Assessing and prioritising psychosocial hazards and risks – a psychosocial risk assessment process will assist in this process, and the Code includes an example risk register to assist with this. The Code stresses that a risk assessment is not something that only happens once but should be part of a continuous improvement process.
- Controlling psychosocial hazards and risks – suggested controls include eliminating or minimising risk through good work design, safe systems of work, information and training, and making reasonable adjustments to accommodate the needs of individual workers. Importantly, the Code states that the best and most effective way to control different kinds of psychosocial hazards and risks is “at the source”, i.e. through good work design.
- Proactively implementing, maintaining, monitoring and reviewing the effectiveness of controls – in particular, organisations should have strategies to intervene early (e.g. to make changes to work design) if workers report stress psychological or physical problems.
The Code also provides guidance to organisations for responding to reports of psychological risks or incidents, including guidance on the investigation process that should be followed. The Code recommends the use of a competent person to carry out investigations (with an understanding of psychosocial hazards, appropriate controls, and both WHS and industrial relations legislation) and sets out considerations to ensure due process for both complainants and those who have allegations made against them (e.g. protecting confidentiality).
In addition to PCBUs, the Code provides guidance for other duty holders in managing psychosocial hazards, and in particular guidance for officers in meeting their obligations of ‘due diligence’ to ensure that the PCBU is complying with its duties. Examples of how officers can meet their duties include: understanding the common psychosocial hazards in their organisation, actively gathering their own information about psychosocial hazards, and checking that their organisation has in place processes to manage both new and emerging psychosocial hazards.