Queensland’s statutory requirements about managing psychosocial hazards are changing in April 2023, when amendments to the Work Health and Safety Regulation 2011 (Qld) (WHS Regs)(see our earlier article here) and the new Code of Practice: Managing the Risk of Psychosocial Hazards at Work (Code) commence.

Is it a big change?

Yes. It’s actually pretty huge. Regulation of psychosocial risks under the Work Health and Safety Law is not new. Since its inception, ‘health’ has been defined in the WHS Act as physical and psychological health. Despite this, enforcement action and prosecution of Persons Conducting a Business or Undertaking (PCBU), officers and workers is exceedingly rare.

The changes to the WHS Regs, and the introduction of the Code, fundamentally change the law about managing this unique risk. For the first time, PCBUs and their officers must take prescribed steps when applying a risk management approach to psychosocial hazards.

Isn’t it just guidance material?

No. In Queensland, the Code will not be a guide or a ‘nice to refer to’ document. Every PCBU and officer must comply with the Code, or achieve the difficult task of proving they manage the risk in a different way which is equivalent to, or higher than, the standards in the Code. Failure to do so is an actionable breach of statutory obligations.

How could the Code play out at our workplace?

The Code is a useful tool to assist PCBUs and their officers to manage psychosocial risk. It contains useful material, such as links to a psychosocial survey which can be used, template psychosocial risk assessments and numerous practical case studies. However, as a legally binding document, it can also be used in enforcement. For example, here are some hypothetical scenarios:

Worker requests specific psychosocial risk assessment

Health and Safety Representatives (HSR) can receive information about safety. Because the WHS Regs will require a risk management approach, a request could be made of an employer for their documented, and consulted on, psychosocial risk assessment (this is all but required by the new WHS Regs).
 
If the employer doesn’t have one, an HSR could issue a Provisional Improvement Notice (PIN) requiring it. A response of ‘Oh, we just do it informally here’ is unlikely to persuade an inspector not to uphold the PIN (if reviewed).
Inspectors compel production of documents following a complaint

A hazard described in the Code is ‘high job demands’, with the following examples given: ‘time pressure, role overload, unachievable deadlines, high vigilance, challenging work hours or shift work, unrealistic expectations to be responsive outside work hours.’

Workers can make online and anonymous complaints to Workplace Health and Safety Queensland (WHSQ), and WHSQ and its inspectors can compel the production of an employer’s documents.
 
If a worker tells WHSQ they are being overworked, Inspectors could request:
– swipe card access (to see how long someone spent in the office);
– times the workers sent emails in the last month (to gauge hours worked); and
– text messages with the supervisor (to see what support was provided).

These documents must be produced, or the employer is exposed to a penalty. If they show long working hours (which is not prohibited by the WHS Regs or Code), the employer may be asked how it manages that hazard.
Major incident (e.g. mental health hospitalisation and incidents of self harm)

Admission to a mental health facility or hospital for self harm arising from work-related issues, or a work-related a suicide, are notifiable incidents.  Importantly, these events do not need to occur in the workplace to be notifiable.  A notification of this type is highly likely to trigger a large-scale investigation by WHSQ. 
 
That investigation could examine whether controls (which are set out in the Code) have been implemented, such as:
– setting achievable performance standards and workloads for the number of workers, work hours and their skill sets;
– allowing more time for difficult tasks to be completed safely, especially by inexperienced workers;
– designing work rosters to facilitate better work/life balance for workers required to work away from home; and
consulting workers about how major organisational changes may affect them and listening to their views.

What do businesses need to do?

Don’t panic. Most employers genuinely care for their workers, and have existing formal and informal systems in place to ensure the workplace is a safe and happy environment. But now is the time to ensure systems are up to date, and officers and managers are fully informed of their roles.

Before April 2023, PCBUs and officers could consider:

  • formalising existing systems for managing workloads and responding to psychosocial issues in the workplace;
  • training frontline managers about their vital role in identifying psychosocial risks in their teams, and how to respond; and
  • ensuring executives, boards and senior public servants are across these legal developments (as the WHS Regs and Code are soon to be in force, officers should be across what these changes mean and how their PCBU will ensure compliance).

How can we help?

We are already delivering tailored training in this space to clients in a range of industries. For more information about managing psychosocial risks, please reach out to Tom Reaburn or Cameron Dean.