Workplaces must update psychosocial controls in face of increased litigation risks

Employers in Victoria and Queensland are required to update the way they manage psychosocial health under new frameworks.

Under new and first-of-its-kind psychosocial frameworks recently introduced in Victoria and Queensland, employers can no longer rely solely on their human resources policies, codes of conduct, and training programs to ensure the psychosocial safety of their staff.

The frameworks require employers to prioritise work design, systems of work, management practices, and the physical or organisational working environment, said Holding Redlich partner Charles Power.

A failure to do so could expose employers to regulatory penalties.

“In this sense, psychological health has now become an enforceable safety risk that must be managed with the same rigour as any other workplace hazard,” Power told Lawyers Weekly and HR Leader.

Rather than requiring individuals to cope with negative conditions or report after the fact, Power said the frameworks require employers to eliminate or reduce risks before the harm occurs.

While historically this was managed through employee assistance programs, de-escalation training and information about reporting incidents after they occur, employers will need to eliminate or minimise exposure to abuse “through changes to the work itself”.

“While de-escalation training and reporting processes remain important, they are no longer intended to be the primary means of risk control where more effective, higher-order controls are reasonably practicable,” Power said.

The psychosocial frameworks also rely on genuine consultation where employees “must be meaningfully involved” in identifying and assessing the risks and developing control measures.

Power said the most common gaps are an over-reliance on human resources-led controls, inadequate consultation, and record keeping.

On the latter, Power said many employers “cannot readily show documentation that evidences active and ongoing psychosocial risk management”, including assessments and reviews of effectiveness.

Employers who fail to comply can expect increased exposure to audits, inspections, investigations and prosecution. It will apply to both OHS legislation and investigation of workers’ compensation.

WorkSafe would investigate whether the hazards have been properly identified, what control measures are in place, how employees were consulted, and how complaints or incidents are handled.

“Employers should expect WorkSafe to look beyond whether there are policies to assess their work design, workloads, management practices and record keeping,” Power said.