The New OH&S Obligations: Employers to Manage the Risks of Psychosocial Hazards in the Workplace (PART 1)
In 2009, Zagi Kozarov joined the Specialist Sexual Offences Unit (SSOU) of the Victorian Office of Public Prosecution (OPP) as a solicitor. The work was confronting, exposing Kozarov to an array of traumatic stories, images and videos.
She frequently met with sexual assault survivors and viewed graphic content involving children and adults alike. Around two years into the job, Kozarov requested that she move out of the SSOU after suffering an array of stress-related symptoms. She attempted to work in other sectors of the OPP, but her employment was ultimately terminated in early 2012.
That same year, Kozarov was diagnosed with post-traumatic stress disorder (PTSD) and later major depressive disorder. She argued that she suffered those psychiatric injuries due to her work at the OPP - a claim that her workplace denied.
A years-long legal battle followed, during which Kozarov was initially awarded $435,000 in damages, only to have the decision later overturned. However, the High Court of Australia restored the decision of the original trial judge in 2022, finding that the OPP was responsible for the psychiatric injuries or was negligent.
This case set an important precedent, showing that psychological risks "can arise from the nature of a job itself" (Siow et al., 2022). Employers are expected to be on notice and take the mental health of their employees as seriously as their physical health - a perspective increasingly reflected in national guidelines and state legislation.
Guidelines and Legislation to Address Psychological Risks in the Workplace
In 2011, Safe Work Australia - a national policy body committed to "achieving healthier, safer and more productive workplaces" - developed the model work health and safety (WHS) laws to better manage psychological risks in the workplace. These model laws, consisting of the model WHS Act, the model WHS Regulations, and the model Codes of Practice, offer a framework to guarantee the health and safety of workers and workplaces nationwide. All states and territories (except Victoria) have implemented the model laws with minor variations.
In 2018, Marie Boland - the former Executive Director of Safe Work SA and current CEO of Safe Work Australia - was appointed to conduct an independent review of the model laws. According to the Safe Work Australia website, the report examined “how the model WHS laws are operating in practice."
The Boland Review, published in February 2019, determined that the model WHS Regulations and Codes of Practice inadequately addressed psychological health - a deficiency demanding “immediate consideration” (Boland, 2018, p.5).
Boland put forth 34 recommendations designed to enhance the WHS framework, including “the development of additional regulations on how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks.”
By July 2022, Safe Work Australia had amended the model WHS regulations in response to Boland's findings, imposing a positive duty on a person conducting a business or undertaking (PCBU) to eliminate and minimise psychosocial risks in the workplace (Trew et al., 2023). The following month, the agency released a new model code of practice on “Managing psychosocial hazards at work," offering guidance on identifying, managing, and controlling risks in the workplace (Drew, Currie & Lee, 2023; Nichols, Ferguson & Leong, 2023).
Changes to the model WHS regulations only take effect in a jurisdiction once it has implemented them. At the time of publication, a majority of states and territories have amended the regulations and implemented the code of practice.
Now that robust regulations and legislation are being rolled out at the federal and state levels, employers need to be aware of their responsibilities to foster a psychologically healthy workplace.
With many of these changes already introduced at the Federal level through the Work Health and Safety Amendment, employers must upskill their workforce quickly and comply with the evolving mental health requirements outlined in the WHS Regulations, Common Law Duties of Care, and State Legislation. Failure to do so may expose these businesses to government regulatory intervention and potential legal repercussions.
Sources:
https://www.abc.net.au/news/2022-05-25/zagi-kozarov-psychiatric-injury-at-work-law-report/101081728 https://www.hcourt.gov.au/cases/case_m36-2021 https://www.theguardian.com/australia-news/2020/feb/19/former-victorian-prosecutor-awarded-435000-over-exposure-to-sexual-abuse-material https://law.adelaide.edu.au/ua/media/2416/alr_432_13_chieng_hou.pdf https://www.vgso.vic.gov.au/kozarov-case-study https://www.theguardian.com/australia-news/2020/feb/19/former-victorian-prosecutor-awarded-435000-over-exposure-to-sexual-abuse-material https://www.pc.gov.au/inquiries/completed/mental-health/report/mental-health-volume2.pdf https://www.dewr.gov.au/work-health-and-safety https://www.safeworkaustralia.gov.au/system/files/documents/1902/review_of_the_model_whs_laws_final_report_0.pdf https://www.holdingredlich.com/nsw-government-bulletin-managing-psychosocial-hazards-in-the-workplace https://www.allens.com.au/insights-news/insights/2022/09/what-the-new-duty-to-act-on-psychosocial-risks-means-for-NSW-employers/