WorkSafe is currently reviewing feedback in response to draft psychosocial health regulations that will impose onerous obligations upon employers and we expect these to come into effect before the end of the calendar year.

Whilst the final details of the amendments to the OHSR have not been confirmed, we can be certain that they will impose new obligations upon employers to take proactive steps to address the very real risks to psychosocial wellbeing in all workplaces. This will address mental and physical risks and injuries arising from the way work is done and organised.

From the information released by WorkSafe to date and experience from other jurisdictions, it is likely that the OHSR amendments will require employers to take a far more active and positive role in preventing and identifying psychosocial hazards in the workplace, including:

• conducting risk assessments to identify psychological hazards, for example fatigue, bullying, sexual harassment, low job control, high job demands;
• so far as is reasonably practicable, eliminating (or reducing if elimination is not reasonably practicable) risks associated with the hazards;
• applying prescribed control measures set out in the OHSR if elimination of the health risks is not possible by altering:
  • the management of work
  • plant
  • systems of work
  • work design
  • the workplace environment.

• and only relying on information, training and instruction if the above measures are not available.
• reviewing and, if necessary, revising any control measures in certain situations (i.e. a fresh risk assessment), including:
  • before any alteration is made to any process or system of work that might alter psychological hazards
  • if new information about psychosocial hazards becomes available
  • if a psychological injury or psychosocial hazard is reported
  • after a psychological injury or psychosocial incident occurs
  • when control measures are no longer adequately controlling the risk
  • when a health and safety representative requests employers to do so.

There are also likely to be occasions where some employers will be required to have a psychosocial hazard prevention plan in place. We think this will be applied broadly and cover a significant proportion of employers given that one of the criteria for imposing this obligation is the presence of high job demands.

Although it is not yet clear exactly which employers will be required to do so, the regulations will require applicable employers to report to WorkSafe twice yearly in respect of any reportable psychosocial complaint received in the form specified by the regulations.

The Regulatory Impact Statement for the proposed draft regulations makes it clear that achieving compliance with the amended OHSR will impose significant time and financial strain on employers. This will be particularly so for the property development and construction sector who historically operate with very lean workforces and rely heavily on the use of contracted workers who bring additional compliance difficulties due to the transient nature of workforces.

Many employers may rightly ask whether the OHSR amendments are necessary, especially given that existing workplace safety laws are supposed to apply equally to the prevention of risks to both physical and psychological wellbeing. In the perfect world there would likely be general agreement with this view. However, a long history of public enquiries has consistently identified that psychological health risks and injuries are difficult to identify and continue to be underreported leaving them without control measures and robust processes to address what is a significant problem for all workplaces. Available data suggests that psychological health related injuries costs Australian employers 100’s of millions in lost working hours and compensation every year.

Courts are taking it seriously – a recent High Court decision: Kozarov v Victoria

In a sign that Courts are already taking the issues associated with psychological health risks seriously, the High Court of Australia recently overturned a Victorian Court of Appeal decision in favour of an employee who claimed to have been exposed to traumatic materials over an extended period (one of the specific factors listed in the draft OHSR amendments).

This is an important decision in the context of the looming changes to the OHSR. Ms Kozarov was a senior lawyer at the Office of Public Prosecutions (OPP) in Victoria and sought damages for psychiatric injuries she alleged were sustained while working in the Specialised Sexual Offences Unit (SSOU) at the OPP. She mostly worked on child sex abuse matters.

The claim of Ms Kozarov was at first upheld by a single judge of the Supreme Court before being partly overturned by the Victorian Court of Appeal.

Justice Dixon, in the Supreme Court at first instance held that the State breached its duty to Ms Kozarov by failing to take reasonable steps to prevent psychological injuries. Specifically, that:

a reasonable person would have assessed it as foreseeable that Ms Kozarov was at risk of psychological injury, based on the conclusion that “suffering symptoms of psychiatric injury from the cumulative effects of vicarious trauma was not far-fetched or fanciful” adding that:

• a reasonable employer would have enquired about Ms Kozarov's welfare and the impact of her work allocation;
• the workplace was lacking in preventative measures to safeguard staff wellbeing and should have had a system in place to monitor staff for signs that might indicate the need for intervention; and
• appropriate screening would have revealed that Ms Kozarov needed to be rotated out of the SSOU to continue working at the OPP without suffering a psychological injury and that she would have accepted this rotation.

In a unanimous decision (set out in 3 separate judgments), the High Court upheld Ms Kozarov’s claim to damages and found that the State failed to provide her with a safe system of work which exacerbated and prolonged her Post Traumatic Stress Disorder (PTSD) and subsequent development of Major Depressive Disorder (MDD).

Importantly and consistent with the stated purpose of the amendments to the OHSR, the High Court made some general observations on the duty of employers which bear repeating:

• the duty of care owed by an employer to employees includes 'active steps for the care of the psychiatric health'
• there may be features of a particular job which mean that the work is ‘inherently and obviously dangerous to the psychiatric health of the employee’ and in these circumstances, the employer has a duty to be ‘proactive’ and provide measures which enable the work to be performed safely by the employee.

In our view, the key findings in the High Court in Kozarov are consistent with the proposed changes and additional obligations to be imposed upon Victorian employers when the amendments to the OHSR become law.

How can you get ready?

There is currently no firm date for when the OHSR amendments will come into force, nor is it known exactly what they will include.

However, although it is difficult to start preparing to ensure compliance, we recommend that where possible, employers start consciously thinking about risks to psychological health when conducting workplace risk assessments, including consideration of reported psychological health concerns (i.e. incident reports, workers’ compensation claims) and how to address any risks associated with psychosocial hazards, which include:

• work design
• systems of work
• management of work
• carrying out of the work
• personal or work-related interactions.

You should also start thinking about whether your organisation needs a dedicated resource in the short to medium term to assess and enable compliance. We note there will be a 12 month 'grace period' between enactment of the amendments and the penalty regime that will apply for non-compliance. We strongly advise against any thought that this means employers have another 12 months to become compliant, because as stated earlier, existing provisions are already capable of leading to prosecution under workplace safety laws where employers have failed to discharge their primary duty to prove a workplace that is free from risks to health and safety, including psychological health risks.

Watch this space and keep in touch

Over the coming months, our Employment, Safety and People team at Maddocks will be pulling together guidance materials and other templates that will help employers to navigate their way through the OHSR amendments and ensure they are best placed to address psychological health risks in the workplace and ensure compliance with the OHSR amendments when they come into force in the most cost effective and timely manner possible.