New psychological health regulations for Victorian employers are expected to commence this year

Significant changes to Occupational Health and Safety (OHS) legislation are expected to commence later in 2022, which will affect all Victorian Public Sector employers.

The changes will be introduced by the Occupational Health and Safety Amendment (Psychological Health) Regulations (proposed Regulations). The development of the proposed Regulations follows several recent reviews which have recommended strengthening workplace health and safety laws, to better address risks to workplace psychological health.

The reviews have included the Review of Model Work Health and Safety Laws (known as the Boland Review), the Respect@Work Report and the Productivity Commission’s Inquiry into Mental Health.  The Royal Commission into Victoria’s Mental Health System’s Final Report also highlighted the need to improve education and awareness  concerning psychological health, to build safe and healthy workplaces and to prevent mental injury.

Public consultation in relation to the proposed Regulations closed on 31 March 2022. It is understood that the Victorian Government and WorkSafe are currently reviewing the 79 submissions received in response to the consultation.

Why now?

Victorian public sector employers, as duty holders under the Occupational Health and Safety Act 2004 (OHS Act), have long been required to, so far as is reasonably practicable, provide and maintain for employees a working environment that is safe and without risks to employees’ health.

What is now proposed is a set of regulations that set out how that obligation is to be discharged. 

The definition of 'health' in the OHS Act includes psychological health. The proposed Regulations seek to:

• provide clearer guidance to employers on how to identify and control risks to protect workers from mental injury
• recognise that psychosocial hazards are just as harmful to employee health and safety as physical hazards.

What can public sector duty holders be doing to prepare?

Here are the top three things that public sector duty holders should be considering now, in anticipation of the new requirements being finalised and commencing:

• Assemble a compliance and implementation team: It is clear that implementation of the new requirements will require organisation-wide engagement. For most Victorian Government Departments and agencies, it will not be a task that can be carried out by OHS and People & Culture teams alone. Public sector employers should therefore embark now on identifying the leaders best placed in the organisation to lead a process of identifying psychological risks and providing feedback on the efficacy of existing and proposed control measures.

• Become familiar with existing WorkSafe guidance on the five psychological health risks that are likely to be the subject of prevention plan requirements (see further below): One of the expected changes is that employers will be required to develop prevention plans to address risks posed by workplace aggression or violence, bullying, exposure to traumatic content or events, high job demands, and sexual harassment. To frame the thinking of leaders on how to identify and control these risks, embarking on a process of familiarising leaders with WorkSafe's existing guidance will stand them in good stead to lead the development of prevention plans. 

• Put structures in place to review policies and procedures: One of the expected changes is that risk control measures for psychological hazards will need to be reviewed at identified junctures, such as when an injury occurs. Having a process in place to facilitate timely reviews and consultation will ensure that organisations are in a strong position to comply with the proposed Regulations.

What are the expected changes?

Requirement to identify psychological hazards

The proposed Regulations require employers, so far as is reasonably practicable, to identify psychosocial hazards.

Psychosocial hazards are defined in the proposed Regulations to mean:

‘any factor or factors in the work design, systems of work, management of work, carrying out of work or personal or work-related interactions that may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety.’

Examples include: bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, high job demands, low job demands, low job control, poor support, poor organisational justice, low role clarity, poor environmental conditions, remote or isolated work, poor organisational change management, low recognition and reward, poor workplace relationships.

Control risks to health and safety associated with psychological hazards

The proposed Regulations also require employers, so far as is reasonably practicable, to eliminate any risk associated with a psychosocial hazard.

Where it is not reasonably practicable to eliminate such a risk, the employer must reduce the risk by (in this order):

1. altering the management of work, the plant, the systems of work, the work design or the workplace environment; or
2. using information, instruction or training; or
3. a combination of (1) and (2).

The proposed Regulations provide that an employer can only exclusively use the control measures in (2) if none of the measures in (1) are reasonably practicable.  If a combination of measures are used, the measures in (2) must not be the predominant measure.

Written prevention plans

If an employer identifies one or more of the following psychosocial hazards, an employer must implement a written prevention plan that identifies the risk, identifies measures to control the risk and includes an implementation plan for any identified measures:

• aggression or violence
• bullying
• exposure to traumatic content or events
• high job demands
• sexual harassment

Additional reporting scheme for employers with more than 50 employees

The proposed Regulations set out two reporting periods, being:

• 1 January to 30 June (inclusive) of each calendar year
• 1 July to 31 December (inclusive) of each calendar year

Within 30 days after the end of each reporting period, it is proposed that employers with more than 50 employees submit a de-identified report to WorkSafe Victoria with information about each reportable psychosocial complaint the employer received during the reporting period.

Reportable psychosocial complaints is intended to be defined as complaints involving aggression or violence, bullying or sexual harassment.

The report must include information about the gender of the persons involved and a description of the workplace relationship between the persons involved.

WorkSafe Victoria will use the information contained in the reports to detect risks to mental health and encourage employers to prioritise mental health needs in the workplace.

Current status

The Victorian Government is currently considering options for the development of Psychological Health Regulations, a compliance code and supporting guidance. WorkSafe will inform stakeholders as soon as an update on this work is available.

Click here for further information about the proposed regulations.

Important - current employer obligations

Under the OHS Act, employers must provide and maintain a working environment for their employees, including contractors, that is safe and without risks to health, so far as reasonably practicable. In Section 5 of the OHS Act, health is defined as including psychological health.

WorkSafe’s website has online resources to support employers with their obligations.

WorkWell is available to support employers to prevent mental injury and to promote healthy workplaces.

How the VGSO can help

Our dedicated OHS team has long experience in advising Victorian public sector employers on managing psychosocial risks and in acting for employers in investigations, internal and external reviews and in prosecutions.  We can:

• undertake a review and/or gap analysis of existing policies and procedures to identify areas which may be improved in order to align with WorkSafe guidance
• provide training to Boards and leadership teams on the OHS framework applicable to psychosocial risks, including by reference to recent cases
• support employers with responding to compliance and enforcement action in connection with alleged psychosocial hazards, including providing advice in relation to the review of improvement notices
• undertake privileged investigations into OHS issues for the purpose of employers receiving legal advice in relation to their obligations under the OHS Act and regulations.

Please contact us should you require any advice or assistance.