Regulatory duties for employers regarding psychosocial risks across Australia

Original article by Nicki Milionis, HCAMag

Following amendments made by Safe Work Australia (SWA) to the model Work Health and Safety Act and the model Work Health and Safety Regulations (model WHS Regulations) in June 2022, the Commonwealth, States and Territories are at varying stages of introducing specific regulatory duties requiring persons conducting a business or undertaking (PCBU) to manage psychosocial risks.

The SWA amended the model WHS Regulations to include specific duties for PCBUs to:

• Manage psychosocial risks in accordance with Part 3.1 (including to identify reasonably foreseeable hazards that could give rise to risks; to eliminate risks so far as is reasonably practicable and if not reasonably practicable, to minimise those risks so far as is reasonably practicable; maintain and review control measures implemented) other than regulation 36 (regarding the hierarchy of controls)
• implement control measures to eliminate psychosocial risks so far as reasonably practicable, or, if not reasonably practicable, to minimise the risks so far as is reasonably practicable.

In determining the control measures to implement, regard must be had to ‘all relevant matters’ including:

• the duration, frequency and severity of the exposure of workers and other persons to the psychosocial hazards
• how the psychosocial hazards may interact or combine
• the design of work, including job demands and tasks
• the systems of work, including how work is managed, organised and supported
• the design and layout, and environmental conditions, of the workplace, including the provision of:
• safe means of entering and exiting the workplace
• facilities for the welfare of workers
• the design and layout, and environmental conditions, of workers’ accommodation
• the plant, substances and structures at the workplace
• workplace interactions or behaviours
• the information, training, instruction and supervision provided to workers.

Amendments to the Australian Work Health and Safety Act make it easier to penalize negligent employers who put staff in health risks.

Jurisdictions in which specific regulations concerning psychosocial risks are in place

Western Australia, Tasmania and New South Wales – All three states have introduced the amendments made by SWA to the model WHS Regulations in respect of managing psychosocial risks.

Western Australia’s Work Health and Safety (General) Regulations 2022, which includes provisions relating to psychosocial risks commenced on 24 December 2022.

Tasmania’s new Work Health and Safety Regulations 2022 implemented all the amendments made by the SWA to the model WHS Regulations concerning psychosocial risks and commenced on 12 December 2022.

New South Wales amended its Work Health and Safety Regulation 2017 and the provisions pertaining to psychosocial risks commenced on 1 October 2022.

Commonwealth – The Work Health and Safety Amendment (Managing Psychosocial Risk and Other Measures) Regulations 2022 amends the Work Health and Safety Regulations 2011 by inserting the amendments made by SWA to the model WHS Regulations, with one exception. Unlike the model WHS Regulations, the Commonwealth regulations require PCBUs to use the hierarchy of controls contained in regulation 36 for managing psychosocial risks, which mirrors the approach in Queensland. The amendments relating to psychosocial risks commenced on 1 April 2023.

Queensland – The Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 amends Queensland’s Work Health and Safety Regulation 2011 to reflect the model WHS Regulations although regulation 36 is not excluded. Therefore PCBUs in Queensland are required to use the hierarchy of controls prescribed in regulation 36 when considering the implementation of control measures to manage psychosocial risks. These amendments commenced on 1 April 2023.

Western Australia introduced groundbreaking developments to its health and safety laws in 2022 after 30 years.

Jurisdictions with specific regulations

Northern Territory – The Work Health and Safety (National Uniform Legislation) Amendment Regulations 2023 amends Northern Territory’s Work Health and Safety (National Uniform Legislation) Regulations 2011 to reflect the model WHS Regulations. PCBUs will be required to manage psychosocial risks in accordance with Part 3.1 other than regulation 36 (the hierarchy of controls). The amendments commence on 1 July 2023.

Other jurisdictions

Victoria – Victoria has yet to introduce regulations relating to management of psychosocial risks and hazards following the closure of the public submissions period on 31 March 2022 in respect of the proposed draft Occupational Health and Safety Amendment (Psychological Health) Regulations. It is expected that regulations will likely emerge this year.

South Australia and Australian Capital Territory

South Australia’s Work Health and Safety Regulations 2012 and the Australian Capital Territory’s Work Health and Safety Regulation 2011 have not been amended to reflect the changes made by SWA to the model WHS Regulations.

Nicki Milionis is a workplace health and safety lawyer and a partner at Norton Rose Fulbright in Melbourne. This article originally appeared on the Norton Rose Fulbright website on 7 March 2023, with thanks to Artemis Sfendourakis for her contribution.

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