In our last blog post on Victoria’s proposed Occupational Health and Safety Amendment (Psychological Health) Regulations (Proposed Regulations) we set out the proposed changes and our recommendations for employers to address the anticipated obligations under the Proposed Regulations.
The feedback period in relation to the Proposed Regulations has now closed and 79 submissions were received and published. The feedback is still being considered and, at the date of writing, there is no update as to whether the Proposed Regulations have obtained Ministerial approval. We’ve taken this opportunity to summarise some of the key themes across a select number of the submissions which appears in the table below.
Interestingly a few of the respondents who provided submissions urged consistency with the upcoming amendments to the model Work Health and Safety Act and Regulations (model WHS Act and model WHS Regulations respectively). As mentioned in a previous blog post, Australian WHS Ministers agreed (in 2021) that the model WHS Regulations should be amended to specifically address risks to psychological health.
This week the amended model WHS Regulations were published by Safe Work Australia and included, amongst other things, a duty imposed on a PCBU to “manage psychosocial risks” where that term is defined as “a risk to the health or safety of a worker or other person arising from a psychosocial hazard”. ‘Psychosocial hazard’ is defined as a hazard that arises from or relates to the design or management of work, work environment, plant, or workplace interactions or behaviours and may cause psychological harm (whether or not it may also cause physical harm).
Under the model WHS Regulations, a person conducting a business or undertaking (PCBU) must implement control measures to eliminate the psychosocial risks so far as is reasonably practicable and if not reasonably practicable, to minimise psychosocial risks so far as is reasonably practicable.
In determining the control measures to implement, the model WHS Regulations states that a person must have regard to all relevant matters including (amongst other things) “the duration, frequency and severity of the exposure of workers and other persons to the psychosocial hazards” and “how the psychosocial hazards may interact or combine”.
By contrast, the proposed Victorian Regulations provide, with respect to control measures, that if it is not reasonably practicable to eliminate a risk associated with a psychosocial hazard, the employer must reduce the risk so far as is reasonably practicable by altering the management of work, plant, systems of work, work design, workplace environment, information instruction or training or a combination of those without exclusively relying on information, instruction or training unless the other measures are not reasonably practicable.
Summary of select submissions concerning the Proposed Regulations in Victoria:
|Body||Summary of selected elements of submissions:|
|Australian Association of Psychologists Inc||• Definitions in the Proposed Regulations should be aligned with definitions accepted by the Human Rights Commission and industry bodies.
• Concern for privacy of complainants in relation to reporting requirements.
• Concern that responsibility is placed on employers to know how to identify and effectively risk manage a psychosocial hazard.
• Highlight the role of psychologists and other professionals with appropriate experience (such as Diversity and Inclusion practitioners) being essential to the development and implementation of prevention plans.
• Employers and managers should be extended support and education in order to have the knowledge and awareness of psychological hazards required to develop and implement prevention plans.
|Australian Psychological Society||• “The regulations would benefit from non-technical examples to assist all stakeholders to best-understand them. For example… “Psychological response: including examples of what is meant by “cognitive, emotional and behavioural responses and the psychological processes associated with them”. It is further suggested that the psychological responses associated with different types of psychosocial hazard be clearly defined in the proposed compliance codes to assist employers to easily recognise the signs and symptoms of a psychological response within the context of the hazard.
– Psychosocial hazard: further describing what is meant by work design and systems of work will be important. As a starting point, examples of psychosocial hazards could be categorised under each factor.
– Work design: while technically accurate, the definition provided is not layperson-friendly. The APS suggests using accessible language such as; job rotations, pace of work, work breaks, working hours, etc”
|Australian Nursing & Midwifery Foundation||• ‘Complaint’ should be changed to ‘report’. ‘Reportable psychosocial complaint’ should be ‘specified psychosocial report’.
• ‘Work-related fatigue’ should be included in the definition of ‘psychosocial hazard’.
• ‘High job demand’ should be defined as ‘means sustained or repeated physical, mental or emotional effort which is unreasonable.’
|Australian Services Union||• ‘Insecure work’ should be added to the definition of psychosocial hazards.
• The ‘consequences of downsizing through restructures’ should be expressly included as an example of high job demands.
|The Australian Institute of Health and Safety||• Lack of clarity about the term ‘psychosocial complaint’
• Assessment of ‘high job demands’ is problematic;
• Longitudinal studies conducted by research experts would yield more reliable data and better intelligence compared to mandatory reporting;
• Risk that the reporting requirements will deter the reporting of psychosocial incidents or risks.
• “Psychosocial risks and impacts are complex and multifactorial. They may be present and causing harm one day, benign and invisible the next. Job demands may increase and become (or no longer be) ‘psychologically hazardous’ from hour to hour, day to day, week to week. These factors can make reporting psychosocial ‘complaints’ or incidents in our existing paradigms impractical. There is a risk here that a health issue is being forced to fit into a regulatory and management ecosystem designed based on discrete, safety events (e.g. incidents or physical injuries”
• There is a risk that as HSRs are authorised to access reports they may be able to identify individuals involved in incidents. Recommend that HSR training is updated to reflect details of this authorisation, and that additional privacy and identification protective measures are considered.
|Australian Chamber of Commerce and Industry||• Definition for ‘psychosocial hazard’ should be consistent with the draft model regulations. This would assist employers working in different jurisdictions.
• The Regulatory Impact Statement underestimates the expense to business for training for staff.
|Australian Industry Group||• Ai Group does not see the need for specific Regulations to address psychosocial hazards, that are already covered by the general duty in section 21(1) of the Act;’
• Recommends removal of the requirement in the proposed Regulations that information, instruction or training not be a predominant control measure used.
• Does not support the regulations including any requirement for specific documentation of how risks are to be controlled (i.e. prevention plans) including because of the lack of clarity about the content of those plans.
|Business Council of Australia||• The definitions of “psychosocial hazard” and “psychological response” should be modified to make them more workable and distinguish between serious and less serious matters.
• “Psychological response” definition “…could cover any conceivable form of psychological response, including a range of responses that are not the result of sexual harassment, bullying, aggression or violence, or exposure to other traumatic content or events. Such responses could be the result of existing conditions that are not a result of experiences in the workplace and which may not be known to an employer. There will invariably be individual differences in how people perceive and respond to the same factor or factors in work design, systems of work, management of work, or carrying out work. In many cases they will be unique to a single employee (for example, a worker’s personal circumstances or mental health status) and may not be able to be identified proactively or managed through a control in the workplace”.
• “The treatment of some of these concepts in the Regulations is also inconsistent with their treatment elsewhere. For example, WorkSafe’s own guidance states that some periods of high job demands are not a risk to health and safety: “short term or infrequent exposure to psychosocial hazards is not likely to cause harm if employers manage it well. Some challenging with demands with extra support and resources might even improve performance.” It will be impossible for employers to have clarity about their own obligations when the Regulations and the regulator have two contradictory positions”.
• Reporting obligations are onerous and do not distinguish between substantiated and unsubstantiated complaints.
• There is insufficient time in which to implement the Regulations.
|The Master Builders Association of Victoria||• “MBV submits that publication of consolidated guidance materials would be more consistent with the functions … [of WorkSafe] …than the approach outlined in the Proposed Regulations. The preferred approach would be to implement consolidated guidance materials and for WorkSafe to then assess, after a reasonable period of time, the impact that has had on the level compliance by employers and whether proscriptive regulations are in fact warranted”.
• The purpose of the reporting requirement, and what steps (if any) WorkSafe Victoria may take in respect of reported complaints, is unclear and may deter some employees from making complaints at all. MBV submits that the reporting obligation should be omitted.
• If maintained, WorkSafe should publicly articulate the rationale for the obligation and what it proposes to do (a) with the information contained in the mandatory reports and (b) the potential steps that it could take in respect of any of the complaints reported to it
|Maurice Blackburn||• Definition of ‘bullying’ should be changed to demonstrate that bullying can be engaged in by individuals and groups of people, with the latter covering situations where an individual’s actions are not repeated but can be aggregated with the actions of multiple people who have engaged in bullying.
• Definition of ‘psychosocial hazard’ should include insecure work, fatigue and workplace surveillance.
• All employers should have reporting requirements (noting there are around 600,000 Victorian small businesses with less than 20 employees).
|Victorian Healthcare Association||• Concern regarding the phrase so far as is reasonably practicable in relation to employers’ duty as psychosocial hazards ‘are an inherent part of delivering public and community healthcare’ (noting services ‘make every effort to protect staff’) and services should not be penalised for issues beyond their control.
• Concern about the administrative burden on public and community health services in implementing duties (eg. reviewing control measures). May be reduced by annual (rather than twice a year) reporting requirements.
• Concern about the definition of high job demand as some of the examples are things that are inherent to some patient-facing roles.
|Victorian Trades Hall Council||• Use of the term ‘complaint’ in a duty of an applicable employer to report ‘any reportable psychosocial complaint’ received excludes psychosocial incidents where a complaint was not made.
• The threshold of 50 or more employees in respect of reporting duties is too high and excludes too many employers. This impacts the information captured about psychosocial incidents in Victoria.
• ‘The work environment’ should be added to the definition of psychological hazard.
• ‘Insecure work’, ‘fatigue’ and ‘intrusive workplace surveillance’ should be added to the express examples of psychosocial hazard and ‘sexual harassment’ should be replaced with ‘gendered violence, including sexual harassment’.
• The definition of ‘high job demands’ should not include ‘which is unreasonable or frequently exceeds the employee’s skills or capacity’ as it is a subjective element.
|Victorian Forest Products Association||• Definitions, including that of ‘high job demand’, are vague and subjective and should include the terms ‘sustained, repeated and unreasonable’;
• Notifiable incidents should be amended to include psychological risks rather than have the reporting requirement imposed on employers with over 50 employees;
• It is unclear how the ‘prevention plan’ differs from a traditional risk assessment