Significant changes in WHS and mental health law: what you need to know and the 4 things you need to do.

Safe Work Australia recently announced a range of amendments to the model work health and safety (WHS) laws. These amendments continue the evolution of workplace safety laws in Australia and contain important changes that will have day-to-day consequences for employers in jurisdictions that adopt the changes - particularly when it comes to the management of psychosocial risks.

While it is up to each state and territory to adopt the amendments, the adaptation and adoption of industrial manslaughter laws across the country combined with some jurisdictions getting ahead of the curve by enacting codes of practice and legislative amendments indicates that there is an appetite to do more about psychosocial risks in the workplace.

What are the amendments?

The key amendments include:

• psychosocial hazard and psychosocial risk definitions.?
• an explicit obligation on a Person Conducting a Business or Undertaking (PCBU) to manage psychosocial risks in accordance with the risk management process (pictured) so far as is reasonably practicable.
• making specific regulations that deal with psychological health (Victoria are already ahead of the curve with this one).
• a prohibition on insurance and other indemnity arrangements covering liability for WHS penalties.
• the addition of gross negligence?as an alternative fault element to recklessness in Category 1 offences.
• the empowerment of any inspector to issue a notice to produce documents or information within 30 days of an inspection (even if they did not attend the workplace) and provide people required to attend an interview with an inspector with the ability to request this occurs by audio or video conferencing.
• the enablement of regulators to share confidential information or documents obtained in the course of exercising WHS functions with another WHS regulator. This is intended to be used in cases where the regulator reasonably believes it is necessary for the administration or enforcement of the act or a corresponding WHS law, or to lessen or prevent a serious risk to public health or safety.

Other notable amendments to the model WHS laws include allowing Health and Safety Representatives to choose which training courses they attend (without consulting the PCBU), removal of the 24-hour notice period for entry permit holders and clarifying that work groups are to be negotiated and agreed with the workers who are proposed to form the work group.

Click here to read the summary of recommendations, agreed outcomes and amendments.

Managing psychosocial risks

The new model WHS Regulations about psychosocial hazard and risk provide useful guidance about the steps PCBUs need to take in considering this risk, and considerations that are relevant when determining appropriate control measures.

The new model WHS Regulations define psychosocial hazard broadly to include any hazard that:

• arises from, or relates to the design or management of work, a work environment, plant at a workplace or workplace interactions or behaviours.
• may cause psychological harm (whether or not it may also cause physical harm).

Psychosocial risk is defined as any risk to the health or safety of a worker or other person arising from a psychosocial hazard.

Notably, the model provisions cast a broad net and will require consideration of not only the physical work environment but also:

• how and when work is undertaken?– this could impact job design, workloads, modes in which teams interact.
• workplace behaviours?– some behaviour giving rise to particular hazards and risks will be readily apparent, but there will be some individuals or parts of the business where a deeper analysis will be required to identify behaviours (and practices) presenting psychosocial risk.
• instruction, training and supervision?– ensuring workers are provided with the necessary information and skills to address issues or raise concerns, and ensuring managers can appropriately monitor their teams for psychosocial hazards and risks and respond to issues raised.

As with the application of the risk management process for any other hazard, control measures are to be determined by reference to all relevant matters, including:

• the duration, frequency and severity of the exposure.
• how the psychosocial hazards may interact or combine.
• work designs and systems, including job demands and tasks and how work is managed, organised and supported.
• design and layout, and environmental conditions, of the workplace and any accommodation provided by the PCBU.
• plant, substances and structures at the workplace.
• workplace interactions or behaviours.
• information, training, instruction and supervision provided to workers.

Status of laws and guidance in each jurisdiction

Some of the key changes to the model WHS laws are in the process of being adopted or have been considered within guidance materials. A summary of the status of each State / Territory on the key amendments is summarised in the table below.

Given the ever-changing landscape, it is critical that you keep an eye out for more changes as the amendment of the model WHS laws are considered by jurisdictions in over the next 12-18 months.

What do you need to do?

In preparation for the introduction of amended WHS laws, you need to:

• ensure you have a process for monitoring changes to WHS laws in the states and territories where your organisation operates as well as a formal process to ensure that officers are kept up to date about the changes.
• review your approach to managing psychosocial risks in the workplace, in line with the current guidance material and anticipated regulations (some useful information is available in the material issued by State and Territory regulators, the?information?and?fact sheet?published by Safe Work Australia and?ISO 45003: Occupational health and safety management – Psychological health and safety at work – Guidelines for managing psychosocial risks).
• ensure workers, peer support persons and managers are given sufficient instruction, training and supervision?on the management of psychosocial risk, and systems are established them report and respond to risks identified in the workplace.
• ensure that WHS systems enable compliance?with relevant regulator's current enforcement powers, and accommodate any changes implemented.