The WHS Response to psychological health and a PCBU’s obligations
Psychosocial hazards and work-related stresses are amongst the most challenging workplace health and safety issues. In recent times, there has been an increased focus by WHS regulators on ‘mentally healthy’ workplaces. Organisations are expected to have appropriate systems in place to eliminate or reduce psychosocial hazards, such as bullying and harassment, to effectively respond to issues and provide safe and healthy workplaces.
The term ‘workplace bullying’ is not used in the national model Work Health and Safety Act 2011 (WHS Act) or its Regulations. However, the WHS Act and the Occupational Health and Safety Act 2004 (Vic) (OHS Act) defines ‘health’ to include both physical and psychological health.
A ‘person conducting a business or undertaking’ (PCBU) has a primary duty to ensure the health and safety (including the psychological health) of workers and others, by managing workplace risks, which includes bullying and harassment.
As reported in an earlier article, stakeholders in the recent Boland review, have been critical of the lack of legislative and practical guidance on how to manage risks to psychological health in the workplace. To address these concerns, guidance material has recently been released to assist duty holders to comply with their obligations:
- Safe Work Australia’s Work-related psychological health and safety provides step-by-step guidance for PCBU to address their duties with respect to psychological health and safety issues; and
- NSW Mentally Healthy Workplaces Strategy 2018-22 outlines how managers can build positive and inclusive workplace cultures and comply with their legal duties to provide mentally healthy and safe workplaces.
Recently in Victoria, a security company and its director were fined $97,000 and $19,250 respectively, with respect to one charge each of failing to provide a safety and healthy working environment in contravention of the OHS Act. WorkSafe’s investigation found that over a number of years the director led a culture of “entrenched bullying” at the company. The court heard the director made sexually suggestive comments towards employees, made inappropriate and aggressive contact with them, threatened to withhold pay and, and encouraged a culture of managers speaking aggressively to employees.
In NSW, a prosecution arose from the bullying of two apprentices by a worker over an extended period of time. In July 2019 the worker was found guilty of a category 3 breach of section 28(b) WHS Act, fined $6,000 (from a maximum of $50,000) and ordered to attend training courses on bullying and harassment, anger management and emotional intelligence.
These are the latest in a series of recent psychosocial health related prosecutions across several jurisdictions. Regulators are sending a clear message that organisations must be proactive in eliminating and minimising risks of psychosocial hazards in the workplace. The potential consequences of failing to act can result in enforcement action and penalties may apply for these offences.
WHS regulators have also shown an increased commitment to promoting mental health and wellbeing in the workplace, as recently demonstrated by the appointment of a dedicated “psychological health officer” in the ACT. This appointed officer will work closely with workplaces to ensure they are equipped with the tools and strategies to create mentally safe workplaces. This position aims to promote injury management and safety performance to minimise psychosocial injuries in the workplace.
It is essential that PCBUs and employers approach psychosocial health and safety with the same diligence which they apply to the management of all other health and safety risks. Workplaces have legal obligations to ensure that there are appropriate systems in place, to identify and control risks to good mental health and to build the foundations of a safe and healthy work environment so far as is reasonably practicable. This includes having in place (and reviewing) policies and procedures which deal with appropriate workplace behaviour, investigations and complaint handling processes and hazard identification and risk management.