NSW introduces positive duty to manage risks of psychosocial hazards at work

New South Wales is the first state or territory in Australia to make amendments to the Model Work Health and Safety Regulations by imposing a positive duty to manage psychosocial risks in the workplace and implement control measures to reduce these risks.

On 16 September 2022, the NSW Government introduced amendments to the Work Health and Safety Regulation 2017 by passing the Work Health and Safety Amendment Regulation 2022 (Regulation). This Regulation (which for the purposes of the matters discussed in this article comes into effect on 1 October 2022), requires a person conducting a business or undertaking (PCBU) to take proactive steps to manage psychosocial risks in the workplace.

Why have these amendments been made?

In 2017, SafeWork Australia engaged Marie Boland to conduct an independent expert review to consider how the model WHS laws (a version of which has now been adopted in each state and territory in Australia, except for Victoria) were operating.

The 2018 ‘Boland Report’ recommended that the Model WHS Act be amended to specifically include provisions about:

1. How to identify psychosocial risks associated with psychological injuries; and
2. The appropriate control measures that must be implemented to manage those risks.
   

NSW is the first state to make regulations implementing these recommendations. Other states, such as Victoria, have published proposed regulations dealing with psychosocial risks. However, those regulations have not, as yet, been made.

The Regulation builds on the introduction of the SafeWork NSW Code of Practice ‘Managing psychosocial hazards at work’ which was published in May 2021. The Code of Practice outlines best practice for managing psychosocial risks. While the Code of Practice is important as it provides guidance on how a PCBU can discharge its duties with respect to managing psychosocial risks, compliance with the Code of Practice is not required by law. The Regulation includes a positive duty for a PCBU to consider and take steps to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. A failure to address the new positive duty will result in a breach of a PCBU’s duty for which penalties can be imposed on both the PCBU and its officers (for breach of their due diligence duty).

What has changed?

The new amendments include:

1. A new definition of ‘psychosocial hazard’ and ‘psychosocial risk’: A ‘psychosocial hazard’ is defined as a hazard that arises from the design, management, environment, plant or interactions at work, which may cause psychological or physical harm. A ‘psychosocial risk’ is a risk to the health or safety of a person from a psychosocial hazard.
2. A new positive obligation for a PCBU to manage psychosocial risks: A PCBU now has an obligation to manage psychosocial risks in the same way it has had a duty to manage physical risks by applying the hierarchy of control measures set out in Part 3.1 of the Regulation.
3. A PCBU must now implement control measures to eliminate or minimise psychosocial risks: The new clause 55D(1) of the Regulation requires a PCBU to implement control measures to eliminate psychosocial risks or, if elimination is not reasonable or practicable, to minimise those risks as far as reasonably practicable.
4. A PCBU must now consider nine factors in determining the control measures it has to implement: The new clause 55D(2) of the Regulation sets out nine factors that a PCBU must consider when deciding which control measures to implement in its workplace to manage psychosocial risks. While the list is not exhaustive, the criteria contained in the new provision include identifying:
   
   • The systems of work that are used in a workplace. This includes how work is managed, organised and supported by workers, meaning that the risks of job overload, underload, and stress must be considered.
   • The design, layout and environment of a workplace. This extends to thinking about how workers can safely enter and exit a workplace and the facilities that are in place to ensure and promote the welfare of workers.
   • The interactions and behaviours that are present in the workplace, which may extend to the culture of a workplace.
   • The guidance and supervision provided to employees. This includes the information, training, instruction and supervision provided to workers.

How do these amendments compare to those proposed in Victoria?

The proposed regulations in Victoria seek to go further than the Regulation in NSW.

While both require organisations to identify psychosocial hazards and eliminate or minimise the associated risks, in their current form the proposed Victorian regulations also mandate, among other things:

• The drafting of prevention plans if psychological hazards such as bullying, sexual harassment or high job demands are identified by an employer;
• The reporting of psychosocial complaints related to violence, bullying or sexual harassment to WorkSafe Victoria every 6 months by employers with more than 50 employees; and
• The types of control measures that must be implemented to eliminate or minimise a risk. The management of work, plant, systems, work design or the environment must be altered to reduce a psychosocial risk in preference to using information, instructions or training. The latter controls are only sufficient on their own if all of the former controls are not reasonably practicable.