New OHS regulations dealing with psychosocial hazards
The Victorian government is on the way to making employers more accountable for the mental health of their employees. Important amendments relating to psychosocial hazards have been proposed to the Occupational Health and Safety Regulations 2017 (Vic). The proposed changes are to commence on 1 July 2022. We expect the proposed changes will largely be made in their current form.
Under the new regulations, employers will need to identify psychosocial hazards, properly manage psychosocial hazards and actively report complaints of psychosocial hazards to WorkSafe. Failing to do so will expose an employer to prosecution and penalties.
The proposed regulations would require employers to identify psychosocial hazards in their workplace, so far as is reasonably practicable. ‘Psychosocial hazards’ means any factor in the design, systems, management, or carrying out of work which may cause an employee to experience a negative psychological response that creates a risk to health and safety. The definition also extends to personal or work-related interactions.
The new regulations will give examples of a ‘psychosocial hazard’, including bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, low or high job demands, lack of support or organisational justice, role clarity, poor environmental conditions including remote or isolated work, poor organisation and change management, low recognition and reward, and poor workplace relationships.
An employer must eliminate such hazards; or, if it is not possible to eliminate the hazard, the employer must reduce the risk, so far as is reasonably practicable. Under the proposed regulations, an employer’s first step must be an attempt to alter the role itself to eliminate or reduce the hazard, for example, by changing the management, plant, systems of work, work design, or environment. If this is not possible, other control measures may be used to reduce the hazard, such as changing systems of work and/or providing information, instruction or training.
The new regulations would specify various occasions at which an employer must review (and if necessary) revise the risk control measures for psychosocial hazards. For example, before alterations are made that will change risks, if new information becomes available about a hazard, or when an employee reports a psychosocial hazard.
Employers would also be required to maintain and update written prevention plans for certain types of psychosocial hazards. The regulations specify what the plan must contain. Employers must produce the prevention plan for inspection on request by a WorkSafe Victoria inspector or an employee health and safety representative.
Importantly, under the proposed changes, an employer with over 50 employees at any time during a reporting period would have to report any reportable psychosocial complaints to WorkSafe, at the end of a reporting period. Reportable complaints are defined as those complaints involving aggression or violence, bullying, or sexual harassment. Reporting periods are from 1 January to 30 June, and from 1 July to 31 December. There are a number of prescribed requirements with which a report must comply.
The penalties will be light until 1 September 2023, to allow a grace period for employers to get used to the new laws and become compliant. Up to 1 September 2023, penalties will be only 1 – 2 penalty units for a natural person and 6 penalty units for a body corporate (a penalty unit is currently $181.74). However, from 1 September 2023, penalties will increase to 60 penalty units for a natural person and 300 penalty units for a body corporate. 300 penalty units represent a fine of over $50,000.
Assuming the new regulations are implemented, employers should consider the creation of templates which enable them to comply with each requirement of the new regulations, to ensure that their prevention plans are in the correct form and are legally compliant. An employer’s existing written plans for dealing with psychosocial hazards may not comply with the new requirements. Employers also need to keep proper records of psychosocial complaints in order to comply with the reporting requirements and may need to update their incident management plans accordingly.
If you require assistance getting ready for the changes and ensuring that your policies and procedures will fall on the right side of the amendments, contact Gilchrist Connell.