NSW Government Bulletin: Managing psychosocial hazards in the workplace

All employers have been increasingly expected to take a very active approach to providing a psychologically safe workplace. The most recent push has come from the state and territory safety regulators, led by the federal safety authority SafeWork Australia in implementing new codes and regulations for managing the risk of psychosocial hazards in the workplace.

What are psychosocial hazards? What risks do they pose to a workplace? And what obligations does a person conducting a business or undertaking (PCBU) have to manage those hazards? In this regard, Government Departments and Agencies as well as state owned corporations together with many other entities are PCBUs.

This article explores these issues, gives a snapshot of where each state and territory is up to in enacting regulations concerning psychological hazards and discusses steps an employer or PCBU can take to meet their obligations.

What are psychosocial hazards?

Psychosocial hazards at work are situations or an aspect of a role that may induce a stress response from a worker. A stress response in itself is not necessarily an injury, however, if stress becomes frequent, prolonged or severe, it can lead to psychological or physical harm. For example, if a project must be undertaken within a tight timeframe and the work is not going smoothly, that circumstance may lead to a significant increase in stress.

Stress can also result from the way in which ordinary day to day work is done. A stress response can stem from:

• the way the tasks or job are designed, organised, managed and supervised
• tasks or jobs where there are inherent psychosocial hazards and risks
• the equipment, working environment or requirements to undertake duties in physically hazardous environments
• social factors at work, workplace relationships and social interactions.

Unsurprisingly, many parts of work could be a psychosocial hazard. Common psychosocial hazards to watch out for include:

• job demands (involving sustained high or low levels of physical, mental or emotional effort)
• role overload (giving workers too much to do)
• role underload (not giving enough work)
• role conflict (disputes between workers about their roles)
• lack of role clarity
• low job control
• conflict or poor working relations
• poor support from supervisors and managers
• bullying
• harassment
• remote or isolated work
• inadequate reward and recognition.

While the risks from bullying and harassment are clear, one of the more difficult areas of risk for a PCBU to manage is the possibility of psychosocial hazards arising from the management of a person’s employment – such as from poor managerial support, a lack of reward and recognition or poor management of workflow. For example, if a PCBU has an inexperienced manager who does not effectively manage a worker’s workload (for example, last minute allocation of work) and does not provide the proper support, over a prolonged period of time (depending on the severity and the frequency of psychosocial hazards) a worker may be exposed to psychological harm or physical harm.

How serious are psychosocial hazards?

Psychosocial hazards are serious and can be very costly to a business. To assist in understanding the seriousness that psychosocial hazards pose to the workplace, we have set out some of the statistics in the Safe Work Australia’s Key Work Health and Safety Statistics 2022 (Key WHS Statistics) below.

The Key WHS Statistics state that mental health conditions made up 9.3 per cent of all serious workers compensation claims in 2020-21. This percentage may increase as it is subject to revisions in further years as claims are finalised. Serious claim is defined as “all accepted workers’ compensation claims for an incapacity that results in a total absence from work of one working week or more, excluding fatalities and journey claims”.

Importantly, even though the percentage may be below 10 per cent of all serious claims, the Key WHS Statistics show that mental health conditions are one of the most costly injuries to employers – including in terms of time off and compensation paid. In 2019-20 the median time lost for mental health conditions was 30.7 working weeks per serious claim. This is significantly higher compared to the median time off for physical injuries and diseases, being a median time off of 6.2 working weeks per serious claim.

To combat the seriousness of psychosocial hazards, SafeWork Australia in 2022, took steps to amend the Work Health and Safety Regulations (Model Regulations). We have set out the context to these changes below.

Legislative changes

Stepping back to November 2017, SafeWork Australia appointed Marie Boland to conduct a review into the Model Health and Safety Laws. In December 2018, Ms Boland handed down her final report, which found, among other things, that while the Model Work Health and Safety Act 2011 (Cth) (Model Act) had an obligation for PCBUs to take reasonably practicable steps to ensure workers are not exposed to risks to their psychosocial health, the review found that the Model Regulations did not deal adequately with the risk.

In July 2022, SafeWork Australia amended the Model Regulations to:

• impose a positive duty on a PCBU to manage psychosocial risks and implement control measures to eliminate the risks so far as is reasonably practicable, or if not reasonably practicable to do so, minimise the risks so far as is reasonably practicable
• introduce relevant factors for PCBU’s to consider when determining what control measures to implement and
• introduce a definition of psychosocial hazards and risks.

SafeWork Australia also published a model Code of Practice, Managing Psychosocial Hazards at Work (Model Code). A code of practice assists a PCBU in meeting their obligations under the relevant state or territory legislation – noting each state and territories publish their own codes of practice to sit alongside the relevant legislation and will often adopt the Model Code.

Each state and territory are now at various stages of implementing the Model Code and the Model Regulations – we have set out where each state is up to, as of November 2023 in the graphic below.

Obligations under the Model Code

Put simply, the Model Code requires no more than the general model framework of managing any other work health and safety risk. However, what is significant is how the Model Code applies this framework to managing psychosocial hazards.

Broadly, the Model Code requires a PCBU to:

1. Identify the psychosocial hazard

Employers must proactively identify aspects of its workplace, worker’s role, or situations that could potentially harm workers or others in the course of conducting the business or undertaking.

This includes identifying those aspects which may induce a stress response including the list we have set out in this article. For example, do you have the best processes in place for dealing with work-on-the-go that will be efficient but not expose workers to undue stress?

2. Assess the risks to health and safety

Where a psychosocial hazard exists, there is a risk. A risk assessment should be done to identify the gravity of the risk of harm, including the number of workers or others affected, taking into account all relevant factors, including the duration, frequency and severity of their exposure to the hazard (or hazards). It may be that a one-off project will cause a spike in stress, but otherwise your processes are adequate. Asking your workers will give you some insight.

3. Implement control measures

Once psychosocial hazards are identified and the risks are assessed, an employer is in a position to control the risks. If it’s reasonably practicable to do so, the risk must be eliminated. If it’s not, the risk must be minimised as far as reasonably practicable. Control measures will include defining job roles clearly, providing work to the level of skills and experience appropriate for that worker, re-designing any processes where there is a need for greater communication or potential for overload of work.

4. Review the control measures

Employers should regularly review the effectiveness of the control measure(s) implemented to ensure they are working as intended.

While these are the obligations under the Model Code, a PCBU should review and check the relevant regulations and code of practice introduced in their relevant states and/or territories where the PCBU operates.

Takeaways for PCBUs – including Government Departments and Agencies

Complying with a PCBUs obligations regarding psychosocial hazards can feel like a daunting task. However, it is important for PCBUs to monitor their workplaces and identify areas of concern.

A PCBU should conduct a risk assessment of their workplace and review whether their current control measures are adequate to control psychosocial hazards. Largely this will involve feedback from workers and training of managers on how to manage teams and workload, as well as how to look for signs of excessive stress. PCBUs should develop and implement proper control measures considering the guidance provided in the state or territories relevant code of practice.

Due to the nature of psychosocial hazards, managing psychosocial hazards will be an ongoing task for many businesses. It is essential that PCBUs and employers proactively and continually review and assess the risks to psychological health in the workplace in addition to physical health and build and adopt an effective risk management process to manage those risks.

Authors: Stephen Trew, Michael Selinger & Olivia Lawrence

Publications

NSW Government to introduce amendments to the Crimes (High Risk Offenders) Act 2006

On 22 November 2023, the NSW Government has introduced amendments to the CHRO Act to allow applications to be made to the Supreme Court of NSW against release or an order for strict supervision if it is believed the offender poses an unacceptable risk of committing another serious offence (22 November 2023). Read the media release here.

In the courts and practice

AAT Bulletin Issue No. 23/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions (20 November 2023). Read more here.

Federal Court Consultation – Full Court and Appellate sitting periods
Following on from the Notice to the Profession Notice in October (October Notice), the Federal Court has shortened the Full Court’s sitting period for February 2024 and proposes to move the three Full Court sitting periods in 2025. The profession is invited to provide feedback on the proposed move by Friday, 15 December 2023 (16 November 2023). Read the October Notice here. Read the November notice here.

High Court – Revised Special Leave Process
The High Court of Australia has published a Revised Special Leave Process for the consideration of applications for special leave to appeal, applications for leave to appeal and applications for removal (17 November 2023). Read more here.

Cases

SafeWork NSW v Woods [2023] NSWDC 510
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker.
SENTENCING – objective seriousness – deterrence – aggravating factors – mitigating factors – capacity to pay a fine – appropriate penalty.
SENTENCING PRINCIPLES – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities.
Crimes (Sentencing Procedure) Act 1999; Work Health and Safety Act 2011.

Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 311
APPEAL – leave to appeal – interlocutory decision – application to transfer proceedings – utility of proceedings.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Insurance Contracts Act 1984 (Cth).

Brown v Commissioner for Fair Trading [2023] NSWCATOD 171
ADMINISTRATIVE REVIEW – Home Building Act 1989 – disciplinary proceedings – statutory warranties – improper conduct – evidence relied upon to establish defects by building inspector – defences – actual knowledge – influence.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Evidence Act 1995; Home Building Act 1989; Home Building Regulation 2014; Occupational Health and Safety Act 2000.

BG Sales Huskisson Pty Limited v Shoalhaven City Council [2023] NSWLEC 1684
DEVELOPMENT APPEAL – modification of development consent for residential flat building – whether substantially the same development – urban design – flooding – public interest – orders.
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9; Shoalhaven Local Environmental Plan 2014 cll 4.3. 4.4, 5.21; Environmental Planning and Assessment Regulation 2000, cl 121B; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.

Collier v Attorney General (NSW) [2023] NSWCA 273
APPEALS – procedure – vexatious litigants – where allegations of bias and misconduct without merit – whether ss 6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW) depend on subjective intent – whether ss 14 or 17 of the Limitation Act 1969 apply to vexatious proceeding orders – whether proceedings conducted in a rude and offensive manner can be vexatious – whether order should be made requiring that leave to institute proceedings be given by Supreme Court – whether time limit should be imposed on order – No House v The King error established for the discretionary making of vexatious proceeding orders.
Civil Procedure Act 2005 (NSW), ss 56, 59, 66(1); Limitation Act 1969 (NSW), ss 14, 17; Uniform Civil Procedure Rules 2005, r 33.13; Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8, 8(1), 8(2) 8(7), 8(8), 9, 10, 13(1), 12(1), 14(2), 16.

SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 491
CRIME – pleading – particulars – sufficiency – the use of the “and/or” conjunction.
Criminal Procedure Act 1986; District Court Rules 1973; Work Health and Safety Act 2011.

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275
LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer’s claim was claim to recover tax “recoverable on restitutionary grounds” – whether claims “recoverable on restitutionary grounds” confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to “recover” overpaid rates.
Civil Procedure Act 2005 (NSW), ss 149B, 149E; Constitution, s 55; Crown Proceedings Act 1988 (NSW), s 5; Customs Act 1901 (Cth); Family Law Act 1975 (Cth), s 119; Interpretation Act 1987 (NSW), ss 33, 36(1); Land and Environment Court Act 1979 (NSW), ss 16, 20, 57, 71; Land Tax Act 1958 (Vic), s 90AA; Law Reform (Miscellaneous Provisions) Act 1965 (NSW); Limitation Act 1969 (NSW), s 14; Limitation of Actions Act 1936 (SA), s 38; Limitation of Actions Act 1958 (Vic), s 20A; Limitation of Actions (Recovery of Imposts) Act 1963 (NSW); Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW); Local Government Act 1919 (NSW), ss 132, 139, 142, 600, 621; Local Government Act 1993 (NSW), ss 220, 377, 494, 497, 498, 500, 506, 514, 520, 521, 522, 525, 526, 527, 534, 535, 546, 550, 560, 568, 571, 577, 578, 593, 594, 602, 672, 674, 711; Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 3, 4, 5, 7; Stamps Act 1958 (Vic); State Revenue Legislation Further Amendment Act 1995 (NSW); Swimming Pools Tax Refund Act 1992 (Cth); Taxation Administration Act 1996 (NSW), Pt 10; Valuation of Land Act 1916 (NSW).

North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW [2023] NSWLEC 124
JUDICIAL REVIEW – decision to approve operational plans – forestry operations – jurisdiction and justiciability of grounds of review in relation to integrated forestry operations approval – standing to sue under s 69ZA of the Forestry Act 2012 (NSW) – common law test of standing to sue – special interest – admissibility of expert evidence in judicial review proceedings – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether principles of ecologically sustainable forestry management a mandatory precondition or consideration – whether site specific operating conditions a mandatory precondition or consideration.
Biodiversity Conservation Act 2016 (NSW); Environmental Planning and Assessment Act 1979 (NSW) s 9.45; Environmental Protection Biodiversity Conservation Act 1999 (Cth); Fisheries Management Act 1994 (NSW) Part 7A; Forestry Act 2012 (NSW) ss 3, 5, 10, 11, 19, 45, 69G, 69L, 69M, 69N, 69NA, 69P, 69Q, 69R, 69RA, 69SA, 69SB, 69ZA; Forestry Legislation Amendment Act 2018 (NSW); Interpretation Act 1987 (NSW) s 3; Land and Environment Court Act 1979 (NSW) s 20; National Parks & Wildlife Act 1974 (NSW) s 193; Protection of the Environment Administration Act 1991 (NSW) s 6; Protection of the Environment Operations Act 1997 (NSW) ss 120, 219, 252, 253; Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 31.19, 31.20.

Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCATAP 307
PRACTICE AND PROCEDURE – whether the Tribunal erred in failing to set aside Summonses for production – whether the Tribunal failed to apply the test of legitimate forensic purpose – whether the Tribunal ought to have set aside the Summons as amounting to a fishing expedition.

Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW)
Payroll Tax Act 2007 (NSW); Taxation Administration Act 1996 (NSW).

Jones v Commissioner for Fair Trading [2023] NSWCATOD 169
ADMINISTRATIVE LAW – stock & station agent's licence – dishonesty offence – disqualified person – time since offence committed – whether trivial – fit and proper person to hold a licence.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Property And Stock Agents Act 2002; Property and Stock Agents Regulation 2014.

Prasad v Commissioner of Police [2023] NSWIRComm 1113
EMPLOYMENT AND INDUSTRIAL LAW – removal of Police Officer – application for Review pursuant to s 181E of Police Act 1990 (NSW) – allegations of misconduct – application dismissed
Police Act 1990 (NSW).

Aesthete No. 9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711
APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – whether proposed development substantially the same as that originally approved – site is bush fire prone – bush fire safety authority (BFSA) issued – whole site to be managed as an Asset Protection Zone (APZ) and categorised as an Inner Protection Area (IPA) – whether implementation of requirements specified in BFSA compatible with maintaining the bushland character and biodiversity of the site – redesigned drainage system – whether all of drainage system should be constructed by Applicant before subdivision certificate is issued – how many trees can be retained – requirement for vegetation management plan (VMP) – when should VMP be prepared – conditions
Biodiversity Conservation Act 2016; Blue Mountains Local Environmental Plan 1991; Blue Mountains Local Environmental Plan 2015; Blue Mountains Local Environmental Plan 2015 (Amendment No 8); Conveyancing Act 1919; Environmental Planning and Assessment Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9 (current); Land and Environment Court Act 1979; Rural Fires Act 1997; Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021; State Environmental Planning Policy No 1 – Development Standards and Uniform Civil Procedure Rules 2005.

Act Compilation
Medical Research Future Fund Act 2015 22/11/2023 – Act No. 116 of 2015 as amended
Migration Act 1958 20/11/2023 – Act No. 62 of 1958 as amended
Housing Australia Act 2018 19/11/2023 – Act No. 65 of 2018 as amended
Health Insurance Act 1973 16/11/2023 – Act No. 42 of 1974 as amended
Income Tax Assessment Act 1997 15/11/2023 – Act No. 38 of 1997 as amended
Insurance Contracts Act 1984 15/11/2023 – Act No. 80 of 1984 as amended
Corporations (National Guarantee Fund Levies) Act 2001 15/11/2023 – Act No. 54 of 2001 as amended

Government Bills
Crimes Amendment (Prosecution of Certain Offences) Bill 2023 – introduced LA 21/11/2023
Casino Control Amendment Bill 2023 – introduced LA 21/11/2023
Transport Administration Amendment (TAHE) Bill 2023 – introduced LA 21/11/2023
Thoroughbred Racing Amendment Bill 2023 – introduced LA 21/11/2023
Road Transport Legislation Amendment (Automated Seatbelt Enforcement) Bill 2023 – passed LA 21/11/2023
Energy Legislation Amendment Bill 2023 – introduced LA 21/11/2023

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Stephen Trew

Michael Selinger

Olivia Lawrence, Christine Jones (Editor), Caitlyn Trussell

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