WH&S Legislation Changes

Although it may be a rather dry topic, updates to work health and safety legislation mean employers need to review and make changes within their workplace to ensure they are compliant.

Employers have a responsibility to ensure their workers are safe. Often, people consider only physical risk and injuries when they think of work health and safety (WHS). But psychological health and safety is just as important.

Psychological injury is less visible than physical injury. Individuals are often less open about psychological ill health as they fear they may be treated differently because of it. For this reason, psychological injuries can be left unnoticed and untreated for longer than physical injuries.

Psychological injuries in the workplace take longer to recover from (on average) compared to physical injuries, and require more time off work. Psychological claims often cost more than physical injury claims.

Safe Work Australia has revised legislation to ensure psychological health is considered in the same way physical health is. Hopefully, mental health hazards will be taken as seriously as other workplace hazards have been in the past.

Psychosocial hazards code of practice

A review of the model WHS laws conducted between 2017 and 2018 (the Boland Review) identified that psychological health was neglected in the existing WHS regulations. The review recommended additional regulations be developed regarding identifying psychosocial risks in the workplace, and the appropriate control measures to manage those risks.

Safe Work Australia (SWA) updated the model Work Health and Safety Act (April 2022) and model WHS Regulations (April 2022), and published the “Code of Practice: Managing psychosocial hazards at work” (May 2021).

The code of practice is designed to be a practical guidance tool to help meet the requirements of the WHS Act and WHS Regulation. It provides direction on how to identify, manage, and control psychosocial hazards in the workplace. It should be treated as the bare minimum requirements to comply with duties under the Act.

Codes of practice are admissible in court proceedings, and may be used as evidence of what is known about a particular hazard, risk, or control.

The amendments were brought together in the February 2023 SWA national strategy designed to reduce workplace fatalities, injuries, and illnesses. The strategy is called the Australian Work Health and Safety Strategy 2023-2033.

In addition to managing psychosocial risks, the Australian Work Health and Safety Strategy 2022-2023 covers the rise of artificial intelligence, automation and related technologies, and new types of work.

The strategy sets a national vision of safe and healthy work for all, and provides a platform for delivering key WHS improvements. At the current time, the Commonwealth, States, and Territories are at varying stages of introducing specific regulatory duties.

Adoption by states

Each Australian state has taken a different approach to the model Regulations and Code, requiring human resources managers to understand and apply different rules in each state a business operates in.

The Commonwealth, New South Wales, Queensland, Tasmania, and Western Australia have adopted regulations on managing psychosocial risks, with regulations in the Northern Territory planned to start in July.

Each of the states that have adopted the Code of Practice have updated their version of the WHS Regulations to incorporate the new obligations.

Commonwealth level:

• At a Commonwealth level, the Work Health and Safety Regulations 2011 (Cth) have been amended to emphasise psychological health in all Australian workplaces, and to provide a consistent framework across all jurisdictions to effectively manage psychosocial hazards and risks in the workplace.

New South Wales

• New South Wales: Work Health and Safety Regulation 2017  The Regulation has been amended to include a new Division 11 ‘Psychosocial Risks’. Sections 55A – 55D comprise Division 11, and requires employers to manage psychosocial risks, and implement control measures to eliminate or minimise the risks.

Queensland

• Queensland: Work Health and Safety Regulation 2011 (Qld) Changes to the Regulation aligns with the changes made in NSW, WA, and Tasmania.

South Australia

• South Australia’s Work Health and Safety Regulations 2012 have not been amended to reflect the changes made by SWA. It is possible they will be amended in the future.

Tasmania

• Tasmania: Work Health and Safety Regulations 2022 (Tas) The Regulation has been amended, and reflects the same changes made in the NSW and WA Regulations.

The ACT

• The ACT have not adopted the model of the code of practice yet. Their Work Health and Safety Regulation 2011 remains.

The Northern Territory

• The Northern Territory announced the new legislation would come into effect on 1 July 2023.

Victoria

• Victoria has introduced the Occupational Health and Safety Amendment (Psychological Health) Regulations 2021 (Vic) to address psychological health in the workplace, rather than adopt the Code. The introductions of these regulations make it a compulsory requirement for employers to both identify and manage psychological risk in the workplace.

Western Australia

• Western Australia: Work Health and Safety (General) Regulations 2022  The Regulation has been amended, and is the same as the NSW Regulations. Sections 55A – 55D provides the same requirements as noted above for NSW.