By Ed Austin-Woods, Associate Director, Australian Business Lawyers & Advisors

An employer’s primary duty of care

Under work health and safety (WHS) laws, employers have a primary duty to ensure, so far as is reasonably practicable, the health and safety of workers and also to ensure that other persons are not put at risk from work carried out arising from the business or undertaking.

This includes risks arising from psychosocial hazards.

What is a psychosocial hazard?

A psychosocial hazard is anything that could cause psychological harm and negatively affect a person’s mental health and wellbeing (noting that this can also lead to physical conditions and injuries).

Examples of some common psychosocial hazards in the workplace include:

  • high workloads or excessive job demands;

  • exposure to traumatic events;

  • insufficient support from managers and inadequate training;

  • working in remote or isolated locations;

  • exposure to behaviours such as violence, aggression, bullying and harassment (including sexual and gender-based harassment);

  • inadequate training and resources;

  • conflict and tension in the workplace with colleagues;

  • disparaging or rude comments from clients and customers;

  • lack of role clarity and unclear expectations;

  • unreasonable and unconstructive negative feedback from managers;

  • poor organisational change management; and

  • exposure to unpleasant or hazardous working environments.

Management of psychosocial hazards

Requirement to consult with workers

Under WHS laws, employers are required to consult, so far as is reasonably practicable, with workers who are (or are likely to be) directly affected by a work health and safety matter.

A such, this requirement to consult also includes when an employer is assessing risks or making decisions about the psychosocial risks to health and safety including what control measures should be implemented. 

If an employer and its workers have agreed procedures for consultation, such consultation must be conducted in accordance with these procedures.

Risk management process

For an employer to meet its duty to ensure health and safety, and to eliminate or minimise psychosocial risks so far as is reasonably practicable, the following risk management process can be followed (and supported by consultation with workers):

1. Identify psychosocial hazards:

Employers should identify all reasonably foreseeable psychosocial hazards that could potentially harm workers and others in the workplace.

This can be achieved, by way of example, through measures such as: consultation with workers and health and safety representatives (HSRs); surveys; observing the workplace and the associated behaviours in it; and reviewing reports and records of previous complaints and incidents to identify trends or patterns of behaviour.

2. Assess risks:

The next step is to assess the risks created by the psychosocial hazards that have been identified which will assist in determining how severe these risks are and what may be reasonably practicable to manage them.

A risk assessment should be conducted, in consultation with workers and HSRs, in relation to any hazards that have been identified as part of this process.

3. Control risks:

If it is not reasonably practicable to eliminate the risks that have been identified, these risks must be minimised so far as is reasonably practicable.

In order to determine what is reasonably practicable in the circumstances, an employer should: identify all of the control measures that may be possible to minimise the risk; give consideration to which of these control measures would be most effective; and then determine which of the control are reasonably practicable to implement in the particular situation.

Common controls that are used to minimise risks to psychological hazards include:

  • Policies on workplace behaviour and management of performance.

  • Training in such policies.

  • Circulation of communications throughout the workplace and in public facing areas remaining individuals of the need to behave respectfully in the workplace.

  • Promotion of incident reporting – so issues can be identified.

  • Use of engagement surveys to identify any areas which might be susceptible to persons being subject to psychological harm.

  • Holding of meetings or use of software to monitor and manage workloads.

4.  Review control measures:

The control measures that have been implemented should then be reviewed to ensure that they are effective in minimising the risk and are operating as intended.

If a particular control measure is identified as not working as planned, it should be modified or replaced.

Recent experience

WHS regulators in each state and territory are now taking a much more active approach to managing psychological hazards in the workplace. In NSW, a specialist psychosocial inspectorate has been established to investigate risks to mental health and enforce employers’ statutory obligations.

When employees make complaints about working conditions (whether they be bullying complaints, sexual harassment complaints or workload complaints), more commonly these complaints are being accompanied by the filing of claims with the WHS regulators which in turn can result in employers being faced with the dual obligation to firstly investigate into an employee’s claims but at the same time respond to enquiries and notices to produce information from regulators.

To help minimise the prospect of enforcement action being taken by regulators, employers should ensure they have the following documented:

  1. A risk assessment for psychological risks.

  2. Records of consultation with the workforce regarding risks and controls put in place.

  3. A record of the controls presently in place to manage these risks.

Concluding comments

Employers need to be aware of psychosocial hazards in the workplace and their obligations to eliminate or minimise these risks so far as is reasonably practicable.

If you need assistance in identifying psychosocial hazards, Australian Business Lawyers & Advisors have developed a toolkit that has simple documents you can use in your business. As a member of Business NSW use your Workplace Advice Line calls if you have any questions specific to managing your workforce and looking after the wellbeing of employees.