Why Regulate Psychological Health in the Workplace?

As an employer it can be overwhelming to navigate the pure volume of information that exists relating to workplace psychological health and safety let alone meeting your legal obligations, having a strategic plan of action, and of course creating a workplace where everyone can be themselves, thrive and stay well. With psychological health well and truly in the spotlight across Australia, it comes as no surprise that the upcoming amendments to the OHS requirements for Victorian workplaces has employers asking, ‘where do we even start?’. Well let’s start from the beginning, why now?

Mental injury-related incidents continue to rise

In recent times the nature, severity, and frequency of mental injury-related incidence and claims in Victoria have been steadily rising. According to Deloitte’s recent regulatory impact statement claims for mental injuries in Victoria increased 20 percent between 2017 and 2019, and although they decreased slightly during the coronavirus pandemic, the proportion of mental injury claims to total claims was the highest in recent history, reaching 14%. WorkSafe Victoria predicts that claim numbers for mental injury will continue to grow over the next five years.

Now importantly, it’s not all about claims, however, this kind of tangible data has certainly been a catalyst in recent inquiries into psychological health and workplace safety such as the Boland Review, the Productivity Commission’s inquiry into mental health, and the Royal Commission into Victoria’s mental health system. These inquiries have been pivotal in bringing workplace psychological health to the forefront of health and safety as well as identifying the fact that mental injury is a serious problem and a high priority for Victorian workplaces.

In 2021 the Victorian Government committed to introducing new regulations to strengthen the occupational health and safety framework, inclusive of preventing harm and recognising that psychosocial hazards can be just as harmful as physical hazards. This was based on the Royal Commissions’ recommendations related to the creation of mentally healthy workplaces. Today employers have a ‘general duty’ to provide a workplace that is safe and without risk to health, including psychological health, however, the current standards fall short with psychosocial risks present and causing harm in workplaces across the state at alarming rates. So, here we are today, on the cusp of change in the regulations – but what does this look like practically within the workplace? In this article, we’ll touch on the why, what and the how when it comes to tackling psychological health in your workplace and prompted by the upcoming changes in Victoria we’ll take a look at what this means from a national perspective across the different states.

Why regulate workplace psychological health?

Although the current OHS regulations in Victoria recognise psychological hazards and advise employers of their ‘general duty’ to provide a workplace that is safe and without risk to health, there is no guidance or firm standards around how this ‘can be’ or ‘should be’ done. From a national perspective, no state or territory in Australia has included specific measures to protect psychological health in the workplace into their legislation or regulations. This in itself leaves far too much room for interpretation, and with room for interpretation comes varying standards, practices and policies with a lackluster level of real accountability.

There are many benefits to regulating to improve psychological health in the workplace such as reduced illness and injury, better community psychological health, reduced cost and strain on the healthcare system and improved workplace productivity, it also is just the right thing to do. We know from the growing trend in incidents and harm related to workplace psychological health that the ‘general duty’ currently in place for employers is not enough. There remains a lack of understanding by some employers about psychological health in the workplace as well as lack of knowledge of how to identify and control psychosocial hazards, while some employers do not actively prioritise psychological health or only see the costs of doing so, without the benefits. Therefore, while the current health and safety laws have no specific provisions relating to the management of psychological health, nothing will change.

Having regulations in place creates clarity for employers as well as a consistent framework and processes for managing risks specific to psychological health. This therefore sets employers up to succeed in creating psychologically health workplaces and ensures there is no confusion around what is expected on them.

Crash course on the upcoming OHS amendments

In response to the Victorian Governments commitment to introduce regulations to address psychological health, Worksafe Victoria has prepared the Occupational Health and Safety Amendment (Psychological Health) Regulations. These proposed regulations aim to provide clear guidance to employers of their obligations to protect workers from mental injury while also emphasising the importance of controlling psychosocial hazards and levelling the playing field between psychological and physical workplace health.

The proposed regulations were released for public comment which closed in March 2022, responses are in the process of being reviewed by Worksafe prior to releasing the final regulations, expected in mid 2022.

The regulations have an overarching aim to increase the knowledge of employers around psychological health while ensuring they identify psychosocial hazards, reduce or control them and overall prevent psychological harm. Sounds simple right? However, this is an extremely complex task to undertake and employers will need help in not just meeting their basic obligations but in creating psychologically healthy workplaces more broadly.

In simple terms the OHS regulations objectives are to;

1. Promote the importance of psychological health and safety in the workplace

2. Require employers to identify and control risks associated with psychosocial hazards

3. Require employers to review, and if necessary, revise measures implemented to control risks associated with psychosocial hazards

4. Require employers to have in place a written prevention plan for certain psychosocial hazards

5. Require employers to periodically report to the Authority certain data on complaints of bullying, sexual harassment and aggression or violence.

The regulations place a huge emphasis on the need for prevention-based actions by workplaces, which for some employers may be a significant shift in mindset from the classic injury management models that have been around for a long time which gears employers towards managing illness, not preventing it. This of course has the opportunity to have a huge positive impact on workplaces and individuals, however, it will not happen overnight.

In 2011, Safe Work Australia developed the model work health and safety (WHS) laws to be implemented across Australia. To become legally binding the Commonwealth, states and territories must separately implement them as their own laws. The model laws have been implemented in all jurisdictions except Victoria. Some jurisdictions have made minor variations to make sure the legislation is consistent with their relevant drafting protocols and other laws and processes. The model WHS includes the model WHS Act, the model WHS Regulations, and the model Codes of Practice. Based on this approach, all states except Victoria have very similar approaches to how they address psychological health through legislation and regulations.

SafeWork NSW has taken the approach of developing a Code of Practice for Managing psychosocial hazards at work. Referred to as ‘the Code’, it is an approved Code of Practice under section 274 of the Work Health and Safety Act 2011 (WHS Act). The Code provides practical guidance on the process an employer could use to identify and manage psychosocial hazards at work. The Code alone however is not a formal regulation or legislation related to psychological health and may not be enough to ensure employers meet their WHS obligations. Employers in NSW still just have a ‘general duty’ to protect the physical and psychological safety of their workforce, with no regulations on what this practically looks like or what actions must be taken.

WA has taken a similar approach to NSW in which the Work Health and Safety Commission has developed codes of practice that focus on different areas where psychosocial, as well as physical harm, may be experienced in a workplace. They have developed codes related to violence and aggression in the workplace, workplace behaviour and psychosocial hazards. The psychosocial hazards in the workplace code of practice focus on the general principles applied to the prevention and management of psychosocial hazards in the workplace. The intent of the code is to provide practical guidance for workplaces where workers may be exposed to psychological and social hazards such as inappropriate behaviours, violence and aggression, fatigue, stress, and trauma, which can be harmful to their health. Again, a firm regulation or legislation does not exist.

Worksafe QLD follows suit, the Work Health and Safety Act 2011 imposes a legal duty on business operators to do what is reasonably practicable to eliminate psychological risks in the same way as physical risks. In 2021 the ‘how to manage work health and safety risks code of practice’ was released and sets the standard for managing psychosocial risks in the workplace. This guides employers, but again there are yet to be clear accountabilities legislated or regulated outside of ‘a general duty’, leaving much room for interpretation. According to the Work Health and Safety Regulations (2012) in South Australia employers must manage, identify and communicate psychosocial hazards that could result in psychological injury, again taking the code of practice approach, with the same being said for TAS, NT, and the ACT.

The varying approaches and standards across the country, as pointed out by the Boland Review are currently not hitting the mark with clear gaps in educating employers on ‘how’ they meet their obligations and achieve the goal of creating a mentally healthy workplace. The proposed amendments for Victoria are a step in the right direction, however, change takes time, but action is required now.

A psychologically healthy workplace goes beyond obligations

Creating a psychologically healthy workplace is everyone’s business even though the upcoming changes to the OHS regulations are shining the spotlight on employers. A whole of workplace approach to psychological health that goes beyond meeting the bare minimum obligations will set the standard for what it means to create safe, healthy, and thriving workplaces that leave employees better off for having been at work, not worse – plus creating psychologically healthy workplaces is just the right thing to do!

To learn more about psychological risk in the workplace read part 2 in this series – Understanding workplace risks to psychological health.