New guidance in New South Wales on creating psychologically healthy workplaces

Workplace Directions

SafeWork NSW has released for public comment a new draft Code of Practice (Code) dealing with managing risks to psychological health. This makes New South Wales the first State to seek to manage this complex workplace issue in this manner.

Enacted as part of the move towards nationally ‘harmonised’ WHS laws nearly a decade ago, the Work Health and Safety Act 2011 (NSW) (WHS Act) already accepts that the ‘health’ of workers (and others at workplaces) encompasses concepts of both physical and psychological health. Persons conducting businesses or undertakings (PCBUs), therefore, have an existing statutory obligation to ensure, so far as is reasonably practicable, that the psychological health and safety of workers and other persons is not put at risk by work performed in the business or undertaking. Officers, workers and others in the workplace also have existing obligations under the WHS Act with respect to psychological health risks.

The Code is therefore designed to supplement this existing legislative framework, and operate as a practical guide for duty holders with respect to establishing psychologically healthy and safe workplaces, and compliance with their obligations under the WHS Act. It has been drafted broadly with the intent that it will be appropriate for all workplaces and will apply to all work covered by the WHS Act.

The Code contemplates a four-step psychological risk management process:

  • Step 1 – Identify psychosocial hazards: Determine which work factors have the potential to cause psychological harm. Potential sources could include the nature and type of work undertaken; the operating environment and work pressures; design and management of the organisation, work tasks and jobs; interpersonal interactions and behaviours; personal characteristics and attributes; and significant workplace changes.
  • Step 2 – Assess risks to psychological health: Perform a risk assessment to determine risk factors; identify workers at highest risk of harm; gauge the severity of psychological risk; decide if existing control measures are effective; choose additional control measures; and decide how urgently action needs to be taken
  • Step 3 – Control risks to psychological health: Implement control measures for risks to psychological health, initially with regard to eliminating the risk, if this is achievable, but if not, by way of second level risk minimisation controls (for example, designing or redesigning the work and working environment, and substituting less hazardous alternatives where practicable), along with administrative controls and/or personal protective equipment
  • Step 4 – Monitor and review controls: Maintain, monitor and review control measures, and revise them as necessary to ensure they remain effective and meet the highest level of control, so far as is reasonably practicable.

The Code also deals with consultation, information and training, and responding to hazard reports in respect of psychological risks.

Compliance with the Code, once implemented, will not be strictly mandatory, and duty holders may choose to address workplace psychological risks in another way – so long as the alternative method adopted meets or exceeds the standards contemplated by the Code. However, as with other codes of practice, the Code can be used as evidence in Court as to what is known about psychological hazards or risks at work, and what reasonably practicable means are available to manage psychological health at the workplace. The Code will therefore provide guidance about the standards expected by the regulator in New South Wales.

The Explanatory Paper released by SafeWork together with the Code highlights its significance with reference to the current state of psychological health in
New South Wales workplaces. It reports that:

  • Less than 9% of New South Wales workplaces have a systematic approach to managing psychological health issues
  • More than 26,600 New South Wales workers have needed time off due to psychological injuries in the last five years
  • 1.2 million work days were lost in 2018/2019 alone due to psychological injury (at an average of 175 days off work per claim, as compared with 44 days off work per claim in cases of physical injury)
  • The cost of psychological claims was $585 million in 2018/2019 alone (at an average of over $85,000 per claim, as compared with $21,000 per claim in cases of physical injury).

The Code is intended to operate in addition to other voluntary guidance materials that are already available in respect of workplace mental health awareness, education and support programs. Consistent with workplace and workers compensation laws, the Code also makes clear that it remains open for employers to engage in reasonable management action carried out in a reasonable way, even where this may be potentially stressful for a worker.

The Code of Practice is initially open for public comment until 31 October 2020, after which revisions may be made and a final version is expected to be issued. The electronic submission page is available at https://www.haveyoursay.nsw.gov.au/draft-code-psychological-health.

Further information / assistance regarding the issues raised in this article is available from the authors, Elizabeth Radley, Partner, and Richelle Farrar, Senior Associate, or your usual contact at Moray & Agnew.


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