Queensland has become the latest jurisdiction to adopt Safe Work Australia’s model Code of Practice and Regulations on managing psychosocial hazards at work.

The Workplace Health and Safety Regulation 2011 (Qld) (‘WHS Regulation’) has been amended to define ‘psychosocial hazards’ and require PCBUs to eliminate or minimise psychosocial hazards at work. In addition, a new Code of Practice, ‘Managing the Risk of Psychosocial Hazards at Work’ (‘Code’), has come into effect in Queensland.  The Code applies to all employers, including small business employers. The Code provides practical guidance to employers on how they can comply with this new obligation (as a specific obligation) and mitigate psychosocial risks in the workplace.  The Code seeks to alleviate any uncertainty surrounding employer obligations relating to the management of workplace psychosocial hazards.

Whilst the Code itself is not law, it is admissible in court proceedings and may be relied on to demonstrate a PCBU’s failure to discharge their WHS obligations.

The Code is based on Safe Work Australia’s model code of practice, which was published in July 2022. As at the date of publishing this Update, only Queensland, New South Wales, Tasmania, and Western Australia have implemented versions of the code of practice. While each of these States have implemented similar versions from the same model code, they are not identical, and regard must be had to the code of practice published in each State or Territory.

This Update will explain what psychosocial hazards are, what obligations employers face in eliminating or minimising them, and how employers can implement the Code in their workplace.

If you wish to learn more about psychosocial hazards and mitigating risks in your workplace, register here for our webinar with Special Counsel Hamish Procter on Thursday 27 April 2023.

What are psychosocial hazards?

The WHS Regulation defines a psychosocial hazard as a “hazard that arises from, or relates to, the design or management of work, a work environment, plant at a workplace, or workplace interactions and behaviours and may cause psychological harm whether or not the hazard may also cause physical harm”.

These hazards include areas of work or incidents at work which cause a worker to experience frequent, prolonged, or severe stress responses and may arise from organisation-wide systems, work practices, and environments, or specific tasks or roles within the workplace.

The Code provides a non-exhaustive list of common psychosocial hazards that arise from, or are related to, work, including:

• high and/or low job demands;
• low job control;
• poor support;
• low role clarity;
• poor organisational change management;
• poor organisational justice;
• poor workplace relationships (including interpersonal conflict);
• remote or isolated work;
• poor environmental conditions;
• traumatic events;
• violence and aggression;
• bullying; and
• harassment (including sexual harassment).

Many workers will encounter a psychosocial hazard in their workplace, or experience a combination of hazards within the same role.  Some hazards may always be present in a workplace, whilst some may only arise occasionally. Employees may also be at risk of harm where they are subject to one or more minor psychosocial hazards, which they are exposed to over a long period of time.

Some workers will be at a higher risk of psychological injury arising from a psychosocial hazard than others, and so employers should identify more vulnerable workers, such as those with:

• limited experience (e.g. young workers or apprentices);
• barriers to understanding safety information (e.g. low literacy or language skills);
• certain attributes which make them more vulnerable, including sex, race, religious beliefs, pregnancy, gender identity, sexuality, age; or
• an injury or illness preventing them from performing full or normal duties.

How can employers comply with the Code?

Employers must adopt effective risk management processes to remain compliant with these obligations. The Code provides four basic steps that should be followed by employers to ensure they are discharging their duties:

Step One: Identify psychosocial hazards

PCBUs have a duty to identify psychosocial hazards. This duty may be discharged by understanding what a psychosocial hazard is, and then identifying their presence in the workplace through observation.

When observing the workplace for the purposes of identifying psychosocial hazards, an employer may ask questions such as:

• How often are workers being exposed to traumatic events?
• Is a proper work-life balance encouraged?
• Are the working hours reasonable?
• Are workers given conflicting information about work standards or priority of tasks from different managers?
• Are employees appropriately consulted about workplace changes?
• How do workers communicate with management about behavioural concerns or conflicts within the workplace?
• Are inappropriate behaviours ignored or tolerated?
• What are the working arrangements and do they pose psychosocial risks to workers?

In addition, PCBUs must actively consult with their employees (and health and safety representatives) regarding psychosocial hazards, and inspect the workplace for present and future risks.

Step Two: Assess the risk of each identified hazard

Employers must consider:

• the severity of harm a psychosocial hazard could cause;
• how likely that harm is to result from the psychosocial hazard;
• what mitigation mechanisms are in place and how effective they are; and
• how urgently additional controls need to be implemented.

The use of formal risk assessments is encouraged by the Code.

Step Three: Control the risks

Under the WHS Act, PCBUs must eliminate risks to health and safety, so far as reasonably practicable. Where the risk is unable to be eliminated, it must be minimised so far as reasonably practicable. When determining the appropriate control measures, in addition to obligations to consult with employees, employers must have regard to:

• the duration, frequency or severity of the exposure of workers and other persons to psychosocial hazards; and
• how the psychosocial hazards may interact or combine; and
• the design of work, including job demands and tasks; and
• the systems of work, including how work is managed, organised and supported; and
• the design and layout, and environmental conditions, of the workplace, including the provision of:
  • safe means of entering and exiting the workplace; and
  • facilities for the welfare of workers; and
• the design and layout, and environmental conditions, of workers’ accommodation; and
• the plant, substances and structures at the workplace; and
• workplace interactions or behaviours; and
• the information, training, instruction and supervision provided to workers

Once those control measures are determined, employers must then implement them in accordance with a hierarchy of controls which measures them based on their level of protection and reliability. To discharge the duty of care, PCBUs must ensure workers are provided with appropriate training, instruction and supervision, to protect them from risks to their health and safety, including risks to their psychological health.

Step Four: Maintain and review control measures

PCBUs must ensure any control measures implemented to control the risks arising from psychosocial hazards remain fit for purpose, suitable for the nature and duration of the work to be carried out, and that they are utilised correctly.

Aitken Legal recommends employers conduct a psychosocial risk assessment of their workplace.  They should then conduct formal risk assessment reviews and maintain risk management records to satisfy their obligations under the Code.  Such documentation will be important  evidence in demonstrating that the employer endeavoured to comply with the Code and its WHS obligations.

Summary

Employers must be aware of their changing obligations around managing psychosocial hazards in light of the new Code.

If you would like to know more about your obligations to eliminate or minimise psychosocial risks, you should attend the webinar with Special Counsel Hamish Procter on Thursday 27 April 2023 [Kim – insert link] or contact our specialist employment lawyers at Aitken Legal today.