Q/A - The proposed Psychological Health Regulations

We hosted a webinar 'Unpacking the proposed Victorian Psychological Health Regulations' on 17 August 2023. Draft Regulations have been proposed under the Occupational Health and Safety Act 2004 (OHS Act) which bring into sharp focus the increasing emphasis on the management of workplace psychological health hazards. Following this presentation we had a number of questions that we have consolidated and answered below.

Prevention Plans

Under the draft Regulations, employers will be required to develop and implement a Prevention Plan in relation to five specific psychosocial hazards, if any of these hazards are identified in the workplace. These psychosocial hazards are:

• bullying
• sexual harassment
• occupational violence and aggression
• high job demands
• exposure to traumatic content/events

Does an individual prevention plan need to be created for each employee?

No. The anticipated Prevention Plan requirement is that an employer will be required to develop a Prevention Plan in relation to whichever of the nominated hazards are relevant to the particular workplace and not a specific plan in respect of every employee.

Will there be templates for developing Prevention Plans and the required reporting if or when the Regulations come in to place?

We anticipate that WorkSafe will develop forms and guidance material in relation to Prevention Plans and the proposed 'duty to report'.

Will the requirement for Prevention Plans include racism and discrimination complaints?

The anticipated Prevention Plan requirements and duty to report will not apply in relation to racism and discrimination as such. However, if these are identified as issues in a workplace, and there is a risk of psychosocial harm associated with these issues, an employer will have OHS obligations under their existing duties to address that risk so far as is reasonably practicable.

Example - a dementia patient in an aged care facility routinely exhibits aggressive behaviour towards staff, but staff are aware of the behaviour and manage it. Will a Prevention Plan be required in relation to this even though staff are already managing this behaviour?

Occupational violence and aggression has been included in the proposed Regulations because of the psychological impact that such incidents can have on employees, as well as the physical impacts.

If occupational violence and aggression is identified as a hazard within your workplace, then it is anticipated that there will be a requirement to have a written Prevention Plan in place and to report individual complaints in accordance with the proposed 'duty to report'. If the current way(s) that staff are managing this behaviour are viewed as appropriate management strategies, then those controls can inform or be incorporated into the Prevention Plan, but remember that an employer must take all (and not just some) reasonably practicable measures to address OHS risk.

Proposed 'Duty to Report'

Under the draft Regulations, employers who have at least 50 employees will be required to provide information to WorkSafe about a 'reportable psychosocial complaint', which is defined to include complaints relating to:

• bullying
• sexual harassment
• occupational violence and aggression

An employer will also be required to notify WorkSafe if no reportable psychosocial complaint was made during the reporting period.

What is meant by 'complaint' in relation to violence, bullying or sexual harassment?

The term 'complaint' is not defined in either the OHS Act or the draft Regulations, and so there is no clear guidance as to whether this will relate to 'formal' complaints only. However, whether a complaint is 'formal' or 'informal', an employer who is placed on notice about an OHS issue is obliged to address it, so far as is reasonably practicable, under existing duties.

Will there be an online platform or report template for employers to use in compliance with the proposed 'duty to report'?

We anticipate that WorkSafe will develop forms and guidance material in relation to the proposed 'duty to report'.

Given the potential for sensitive or confidential information in these reports, how is privacy maintained when they must be made available to Health and Safety Representatives upon request?

WorkSafe is likely to provide guidance material in relation to the anticipated 'duty to report', but the relevant draft regulations require only the following information to be included in the report:

• the type of psychosocial hazard involved in the complaint
• the gender of the persons involved in the complaint
• a description of the workplace relationship between the persons involved in the complaint

It is likely therefore that other personal or identifying information will be able to be omitted or redacted from the report.

Note that under s 69 of the OHS Act, employers must allow Health and Safety Representatives to have access to information in relation to actual or potential hazards in the workplace, and in relation to the health and safety of the members of the relevant designated workgroup. However, an employer must not provide access to medical information that identifies an employee without that employee's consent.

Employers will also be bound by the Privacy and Data Protection Act 2014 and the Health Records Act 2001 in this context.

Draft Regulations - General

Under the draft Regulations, is the extension of duties to independent contractors and their employees a new concept or does this already apply under the OHS Act?

The extension of duties to independent contractors and their employees under the draft Regulations is not a new concept. The 'primary duty' under s 21 of the OHS Act already extends to independent contractors and the employees of independent contractors - see s 21(3)(a) of the OHS Act.

The definition of 'employee' is set out in s 5 of the OHS Act and means a person employed under a contract of employment or a contract of training. This would include long term casual workers, for example.

A worker will also be taken to be an employee if a provider of labour hire services supplies, recruits or places the person with the employer to perform work - see s 5A(1) of the OHS Act.

Will an OHS duty arise when a hazard is identified, or will it arise when there is a deemed risk?

If a particular hazard is a 'deemed risk' then an employer will have a duty to eliminate or reduce the risk so far as is reasonably practicable. In a negligence context, the High Court recently referred to risks that were 'inherent' or 'obviously dangerous' in the decision of Kozarov v State of Victoria [2022] HCA 12, and that kind of analysis is apposite here too. A risk that is inherent or obviously dangerous will have to be managed in accordance with an employer's OHS obligations, even if that risk has not eventuated, been reported or has been the subject of a formal or informal complaint.

What are the obligations on small business and community organisations?

All employers, including small businesses and community organisations, will have OHS obligations under the OHS Act and will be required to comply with the anticipated Prevention Plan requirements. However, if the employer has fewer than 50 employees, they will be exempt from the anticipated 'duty to report'. The duty to report will only apply to an 'applicable employer' and this is defined in the draft Regulations as 'an employer that has 50 employees or more at any point in time during the reporting period'.

How does workplace manslaughter fit in, where there is poor management of hazards and risks associated with psychological health in the workplace?

Workplace manslaughter is still a relatively new offence that was introduced into the OHS Act from 1 July 2020 and only applies to fatalities which occurred on or after this date. It requires proof, to the criminal standard of beyond reasonable doubt, of every element of the offence, particularly that there was conduct that was negligent (according to the criminal law definition of 'negligence') and caused the death of a person who was owed a duty ('causation'). It seems to us that there will be a high bar to establishing criminal negligence and causation beyond reasonable doubt in a workplace setting when the underlying risk relates to psychological injury.

Have there been any prosecuted cases relating to vicarious trauma?

As far as we are aware, there have been no prosecuted cases relating to vicarious trauma, or, using the language of the draft Regulations, 'exposure to traumatic content or events'.

Do you have any suggestions for the composition of an implementation team to address the requirements in the draft Regulations?

The composition of a compliance and implementation team to address OHS risk under the OHS Act and associated Regulations will depend on the nature of the organisation and the roles or positions which exist in the organisation. For instance, if an organisation has a Health and Safety Manager or Health and Safety Advisor, it seems logical that such a person would form part of this team, together with a Human Resources (People & Culture) representative and/or a Workplace Relations (Industrial Relations) representative. It may also include a member of the Executive Leadership Team, for practical reasons or to signpost the organisation's commitment to safety leadership and safety culture. There is no 'one size fits all' solution.

Why is Victoria separate from the 'harmonised' Australian jurisdictions in relation to occupational health and safety issues and compliance?

The Victorian government has elected to pursue a different path from the other harmonised Australian jurisdictions. The OHS text book 'Health and Safety Law in Victoria' by Breen Creighton and Peter Rozen devotes several chapters to the historical development of health and safety law across Australia and how, against this backdrop, Victoria elected to stand separately from other States and the Commonwealth. For anyone interested in understanding this history in more detail, this text book is recommended reading.

How do you think the psychosocial inspectors will change the existing landscape of OHS?

It is likely that the appointment of WorkSafe Psychosocial Inspectors will have an impact on the existing OHS landscape, because they will focus on psychosocial hazards and are likely to engage proactively with Victorian employers in relation to these issues.

How does 'reasonable management action' fit into this discussion?

The term 'reasonable management action' is not defined in the OHS Act or the draft Regulations, however this still has implications in relation to workers compensation claims and bullying.

In relation to workers compensation, there is no entitlement to compensation in respect of a workplace injury if that injury is a mental injury, and it was caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner.

In relation to bullying, the Fair Work Act 2009 (Cth) provides that ‘reasonable management action’ carried out in a reasonable way, is not bullying. For example, an employer who informs an employee that their behaviour at work is not appropriate will not have engaged in 'bullying' if this was a reasonable management action.

Where can we seek guidance when complying with OHS obligations, given the complex interplay with industrial relations obligations?

The VGSO Workplace Relations and Occupational Safety team can assist Victorian public sector organisations in relation to the interplay between an employer's industrial obligations and their OHS obligations. Please feel free to contact Frances, Kerry or Veronica directly as below for any further information.

WorkSafe also provide guidance on a range of topics on their website.

Contact our team

Frances Anderson Assistant Victorian Government Solicitor
M 0475 834 049 E frances.anderson@vgso.vic.gov.au

Veronica Belot Managing Principal Solicitor
M 0429 810 754 E veronica.belot@vgso.vic.gov.au

Kerry Maikousis Managing Principal Solicitor
M 0438 722 619 E kerry.maikousis@vgso.vic.gov.au

Viewing 'Unpacking the proposed Victorian Psychological Health Regulations'

If you would like to view this webinar, please go to the Innovation Network - VGSO Community of Legal Education. On the resources section of this site details and links to recordings of all VGSO webinars can be found. This is a great place to catch up and obtain CPD points. Note the Innovation Network is for the VPS employees only and you will need to create a log in and password.