Legal Insights

Psychosocial Safety: What employers need to know

By Catherine Dunlop

• 06 December 2023 • 8 min read
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2023 has been the year that most of Australia adopted specific regulations requiring employers to address psychosocial hazards.

We have seen greater fluency amongst employers and workers about these hazards, with an increase in safety regulator activity and prosecutions. These developments have been mirrored in other related areas of employment law, with the focus on prevention to address sexual harassment implemented in the Sex Discrimination Act 1984 (Cth). With the pace of change in this space accelerating, and with increased focus on these issues, employers need to understand their obligations, invest in reviewing hazards and, where needed, implement new measures to address risk.

What are psychosocial hazards?

Psychosocial hazards are hazards that arise from workplace interactions, behaviours or culture, design or management of work, the work environment and/or plant at a workplace that cause a stress response. When the hazard is frequent, prolonged and/or severe this can result in psychological and/or physical harm.

These hazards include:

  • Bullying
  • Sexual Harassment
  • Exposure to trauma
  • Occupational violence and aggression
  • Remote and isolated work
  • Low job control
  • Low job demands
  • Fatigue
  • Poor role clarity
  • Poor organisational change management
  • Poor organisational justice
  • Poor organisational support
  • High job demands

The list of hazards is not settled and different lists appear in various Codes of Practice across Australia jurisdictions. In addition, there are arguments for inclusion of new hazards with various union groups arguing that intrusive workplace monitoring/surveillance is a psychosocial hazard.

Of note for many employers will be the hazard of ‘high job demands’, which may arise in the context of labour force shortages or by an aggrieved employee. The most comprehensive description of this hazard is found in draft Victorian regulations which defines the term to mean ‘sustained or repeated physical, mental or emotional effort which is unreasonable or frequently exceeds the employee’s skills or capacity’.

The term ‘psychosocial safety’ is often confused with ‘psychological safety’ with the latter referring to a culture where people can speak freely about issues and take risks without fear of negative consequences. It is important when addressing psychosocial hazards, risks and safety to ensure there is not confusion amongst those involved about the matters being addressed.

What are the regulations?

Employers already have existing duties to address hazards at work under relevant health and safety legislation by eliminating or reducing them so far as is reasonably practicable. Employers also have duties to consult with employees (often through Health and Safety Committees) about hazards. The psychosocial regulations provide further detail about these obligations in relation to psychosocial hazards.

The regulations differ in their approach to the application of a hierarchy of control in addressing the hazards and risks. The regulatory landscape across Australia can be divided into three broad categories:

Obligation to identify manage hazards and implement control measures, but without a legislative requirement or obligation to apply the hierarchy of control in the regulation 36 of the regulations

See Chapter 3, Division 11 of:

NSW: Work Health and Safety Regulations 2017 (NSW) from 1 October 2022 and accompanying Code of Practice

Western Australia: Work Health and Safety (General) Regulations 2022 (WA) from 24 December 2023 and accompanying Code of Practice

Tasmania: Work Health and Safety Regulations 2022 (Tas) from 12 December 2022 and accompanying Code of Practice

Northern Territory: Work Health and Safety (National Uniform Legislation) Regulations 2011 (NT) from 1 July 2023

Obligation to identify, manage hazards and implement control measures, including the requirement or obligation to apply the hierarchy of control in regulation 36 of the regulations

See Chapter 3, Division 11 of:

Commonwealth: Work Health and Safety Regulations 2011 (Cth) applies to relevant employers covered by Commonwealth safety legislation from 1 April 2023 with an accompanying Code of Practice

Queensland: Work Health and Safety Regulations 2011 (Qld) applies from 1 April 2023 with an accompanying Code of Practice

South Australia: Work Health and Safety Regulations 2011 (SA) will apply from 25 December 2023

ACT: Work Health and Safety Regulations 2011 (ACT) will apply from 27 December 2023 with accompanying Code of Practice effective from 27 November 2023’

Extended obligations to identify and manage hazards and a requirement to comply with a specific psychosocial hazard hierarchy of control, develop prevention plans for occupational violence bullying, sexual harassment, exposure to trauma and high work demands, and an obligation to report particular matters to WorkSafeThis is the model proposed in Victoria in draft regulations released in 2022. There has been no official announcement of the status of these regulations but it is thought they will be introduced in 2024

When considering control measures to address identified hazards, some employers will need to apply the hierarchy of control in relevant regulations. However even in jurisdictions where the regulations do not require this, the adoption of a hierarchy of controls is noted in relevant Codes of Practice. In practice this means that responsive measures to address risks, such as EAP or workplace dispute procedures and other, lower order controls such as education will not suffice to meet an employer’s duty unless the duty holder has properly considered higher order controls such as job design and determined that those controls are not reasonably practicable. Duty holders may be required to demonstrate to regulators how this was considered, and the consultation that occurred.

What does this mean for employers?

Safety regulators are increasing their focus on psychosocial hazards, including in jurisdictions where the regulations are not yet in place (noting the prosecution in Victoria of Court Services Victoria for failing to provide a safe workplace, noting employees were subject to risks from exposure to traumatic materials, role conflict, high workloads and work demands, poor workplace relationships and inappropriate workplace behaviours).

Employers should:

  • Ensure they have an up to date knowledge of their obligations, and including Boards and Executives in that education given their due diligence/officer obligations
  • Apply a safety lens to workplace disputes and complaints, and inappropriate behaviour, recognising that obligations to address risk will arise from relevant safety acts, as well as other legislation that HR professionals may be more familiar in dealing with
  • Consult and review records to understand the particular psychosocial hazards arising in workplaces under their control, and in relation to workers engaged by them (including contractors)
  • Consider evidence-based higher order control measures, by reference to the hierarchy of control in relevant regulations and/or the measures noted in relevant Codes of Practice, and regulator guidance material. This may require new consideration of job design and job crafting, rather than relying on policies and education
  • Support managers to address hazards. Not all psychosocial hazards result in harm to workers, and good leaders have a significant preventative role in ensuring an appropriate workplace culture, supporting workers during times of peak demand, and considering new ways of working or addressing hazards. An attitude that the responsibility for addressing psychosocial hazards sites with the health and safety team or can be entirely outsourced ton consultants to advised on has no place in workplaces in 2023
  • Review, on a regular basis, control measures including when complaints are made or worker feedback (exit interview and engagement surveys) indicates hazards are present
  • Understand that regulators may be increasing their investigation and enforcement/prosecution activity and ensure that there is an appropriate understanding of the powers of the regulators and how to engage with them;
  • Plan ahead for future risks, so that these can be addressed proactively.

This is a developing area, with increased debates about both the nature of the hazards and the best practice ways to address them. It requires an investment of time in keeping up to date and understanding the regulator perspectives. We will continue to provide update on key cases and developments in this area, but if you have any questions in the meantime please feel free to reach out.

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