Does an employer have to proactively protect their employees’ mental health?

Previously, the Occupational Health and Safety Act 2004 (Vic) provided a general legal basis for the protection of an employee’s mental wellbeing.

Recently WorkSafe has introduced proposed amendments to the Occupational Health and Safety Regulations 2017 (Vic) (OHS Regulations) to ensure that employers place greater importance on protecting an employee’s mental health within the workplace. The proposed amendments have been created with the purpose of creating a safer work environment for all employees.

Recent research suggests that approximately one in three workplaces pose a high-risk of mental harm to their employees.[1] Mental harm can be inflicted in the form of psychosocial hazards such as bullying, harassment, onerous job demands, poor workplace relationships, and poor workplace support. This list is non-exhaustive, and employees may be able to rely on the proposed OHS Regulations if their circumstances fall within this definition.

How do the proposed changes protect an employees’ mental wellbeing in the workplace?

Specifically, employers are required to, so far as is reasonably practicable:

• identify psychosocial hazards;
• eliminate any risk associated with a psychosocial hazard;
• review and, if necessary, revise any measures implemented to control risks associated with any psychosocial hazards when one or more key events occur, and
• prepare a written prevention plan where a risk has been identified in relation to aggression or violence, bullying, exposure to traumatic content or events, high job demands and sexual harassment. Any prevention plan must include measures to control the identified risks and an implementation plan.

As a result, employees are protected by an employers’ positive obligation to proactively identify and eliminate psychosocial risks. A failure to do so may constitute a breach under the Occupational Health and Safety Regulations 2017 (Vic).

A ‘psychosocial hazard’ is defined under section 5 of the proposed OHS Regulationsto include: any factor or factors in the work design, the systems of work, the management of work, the carrying out of the 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. Importantly, a psychosocial hazard can create mental or physical harm, can occur during a specific instance or over time, and may compound to create harm.

A failure to act in accordance with proposed amendments to the OHS Regulations, will depend on what is considered reasonably practicableand will vary according to the circumstances of each individual case.

Additionally, employers with over 50 employees will be required to provide a written report to WorkSafe Victoria about psychosocial complaints the employer received during the reporting period and retain a copy of this report for a period of five years.

A failure to comply with these amendments may give rise to a civil penalty provision.

What are the best next steps for an employer?

While the introduction of these requirements may provide a substantial cost increase for employers, the benefits are anticipated to outweigh the costs. These benefits include improved productivity from lower absenteeism and presenteeism, lower compensation claims and reduced occurrence of employee mental illness.[2]

Though the amendments have not yet been legislated, employers should begin thinking about how they can identify and eliminate psychosocial hazards and risks within their workplace. This will involve the preparation of written prevention plans, with a key focus on bullying and harassment.

Further, WorkSafe has promised the release of a psychological health compliance code, which will help to assist identification and control of risks. Employers should rely on this code to ensure they are acting in accordance with their duties under the proposed amendments.

If you are an employer and you are concerned about your compliance with the Regulations, or alternatively, if you are an employee and believe your employer has failed to act in accordance with these amendments by failing to identify a hazard or eliminate a risk, call the employment lawyers at McDonald Murholme on (03) 9650 4555.

[1] Safe Work Australia, The Australian Workplace Barometer: Report on Psychosocial Safety Climate and Worker https://www.safeworkaustralia.gov.au/doc/australian-workplacebarometer-report-psychosocial-safety-climate-and-worker-health-australia

[2] Occupational Health and Safety (Psychological Health) Regulations Amendment 2022 Regulatory Impact Statement.