Andrew Douglas: Alright, I think it’s probably time for our main update. This is your bread and butter, isn’t it? Safety law.

Tom Daly: Let’s do it.

Andrew Douglas: Victoria’s just brought in or indicates it’s going to bring in on 1 December, 2025, the new psychological hazards regs and code. Just to be clear, what that does, is the regs define what reasonably practical means and cred’s a positive duty, and we’ll talk more about that.

Tom Daly: Yep.

Andrew Douglas: The code fills in the gaps and says this is the conduct you must do as a business to meet what is reasonably practical. And reasonably practical is the test under all safety legislation of stand of care. I must do everything reasonably practical to provide a safe place of work and in psychological hazards to monitor health, to ensure there is a system that is in place, that people are competent and there’s adequate supervision. And reasonably practicability means, I must know what the hazards are and identify them. I must determine what is the level risk based on frequency and consequence, and I must have controls. And when you want to know where the controls are, you go to the code ’cause the code talks about what that is.

Tom Daly: And a lot of those would be familiar to a lot of employers already.

Andrew Douglas: They would be but Tom, the first part of course, is what is a positive duty? And the positive duty is you must be able to demonstrate not that you are merely complying with legislation, but that you have an evidential base to prevent, that demonstrates you are preventing psychological hazards from occurring in your workplace and harm being done.

Tom Daly: Right.

Andrew Douglas: Now most employers aren’t doing that.

Tom Daly: No.

Andrew Douglas: Okay? And that’s a tall order ’cause what it means is you must have evidence that exists now, of what are the hazards in your workplace? And the code then says, well then there are prevention plans. There are a variety of mechanisms you use to actually prevent that and for those of you who’ve been to recent presentations we’re doing, Tom and I repeatedly talk about the three buckets, which is bucket one, the code. The code requires you to be in bucket one of prevention, which is before anything arises to have plans in place that prevents something. Bucket two is when signs of hazards arise, you intervene immediately.

Tom Daly: Yep.

Andrew Douglas: Okay so bucket one’s the place to be ’cause no injury. Bucket two might be a little bit late, but bucket three, which is where most people live their life is where someone has been harmed. Positive duties sit in bucket one.

Tom Daly: Yep.

Andrew Douglas: Okay? Where we live at the moment is bucket three.

Tom Daly: Yep.

Andrew Douglas: So when we’re talking about this, Tom, I think the big part that comes out of this is, this is officer and organisational liability. First of all, where do I go to get this information to be satisfied that I am preventing it? And that means I go to exit interviews, it means I look at absentee records, it means I look at performance improvement and I look at instant reports, I look at HR records, I do all those things. And then I go, okay, I’ve got this map of where I’ve got some problems and I know what the hazards are, and we know psychological hazards occur in clumps. You know, I give you work Tom and what do I do? I throw too much work at you. I don’t provide you with clarity and there’s no reward and recognition. You’d say it yourself but that’s my personality, okay? So there’s got to be a growth in my reflection and Tom has to be in a position to be able to elevate and raise those issues because they impact him.

Tom Daly: And you got to have a prevention plan.

Andrew Douglas: And I’m got to have a prevention plan! Yeah, of course and it’s called Nina.

Tom Daly: Which can be…

Andrew Douglas: So you see when we get there, Tom, when you are looking at your view of the legislation, what do you think the immediate, the obvious things are for you? What are the things that sort of jump off the page? When this comes in, in 1 December, 2025 in Victoria, what are employers going to have to start doing straight away?

Tom Daly: The main thing is the active, proactive I should say prevention of duties. Whereas before you could wait until something goes wrong, now you have to be on it all the time. And I think to a lot of employers that might be a shock when it first comes out.

Andrew Douglas: Yeah and I think, you know, Tom you’re right. Because now at the moment, Victoria’s the highest prosecuting state of psychological hazards without the code and reg, okay? As Tom said, you know, you can get through and you can have a few policies and procedures and WorkSafe have their psychological team who come out aggressively, oddly, given the fact they’re in charge of psychological hazards. Come out and will vet your policies and procedures and this is classic regulator, if you’ve got the policies and procedures, mate, you’re okay. It’s absolute bullshit because that doesn’t prove you are safe at all.

Tom Daly: Yep.

Andrew Douglas: But when the positive duties come out, they’re going to come out and say, “Show me the evidence of your knowledge of risk within the organisation.”

Tom Daly: Yep.

Andrew Douglas: So they won’t be going for the policies and procedure stuff, which we do now, tick. They’ll be going to the process that says, “No, no, show me that you know where the risk is that you have plans in place. Show me where you’ve demonstrated people have confidence in identifying.”

Tom Daly: Yep.

Andrew Douglas: “Show me where your reports are that demonstrate the actions that you’re taking.” That’s a huge change, isn’t it?

Tom Daly: Another thing that stood out to me Andrew, was it’s not… It won’t be sufficient when these regulations come in to rely on training and instruction. You can’t just say we’ve put the training in place. You have to have altered the management, the work systems, the work environment, practical changes rather than just saying, “Our workers are educated on this.”

Andrew Douglas: Hey look, can I just say using your my example, which is sadly true. What that requires is not just safety management, but leadership management. Because using my example, when you look at the 14 hazards, there’s you know, three or four egregious ones of sexual harassment,

Tom Daly: Bullying.

Andrew Douglas: Bullying.

Tom Daly: Aggression.

Andrew Douglas: Trauma, vicarious trauma okay over there. But out of the others, they’re nearly all design based except for a few like remoteness. But all the others are how I delegate work. Volumes of work, clarity in the work,

Tom Daly: Low job demands an interesting one.

Andrew Douglas: Yeah all of all of those things, all of those go to the manner in which I lead. So the method of prevention is having evidence of leadership training and competence, and invigilation of leaders in how they lead. So in my organisation that would mean Kim checking in… Kim heads up the workplace team, checking in with Tom, Nina and others and saying, “Look, how’s it going with Andrew delegating work?” And saying to me, “Andrew, you know, what do you do to reflect?”

Tom Daly: She does by the way.

Andrew Douglas: Yeah she does, she does. Yeah and she gives me a kick every now and again. But so you know, reflection requires an understanding of how you actually receive information and how you weight that information based on the quality of the evidence you receive. And what you do as a result of it, it requires you to look at where your failings are, so the understanding of your own unconscious bias and the method in which you do stuff and having strategies around that. So Tom and my strategy is I’ll give Tom work and I expect Tom to come back to me and say, “I don’t understand what you’re talking about.” In five minutes time and organising a time on team. So not brilliant because of my personality, but it works, okay? And the last part is saying, alright, this is the evidence I traditionally get.

Why don’t I tear it apart a bit? And what’s a better method of me gaining other information? So when I chat to Tom and Tom’s struggling, I go to Nina, “Nina, how do you perceive the way I give you work?” And then he goes, “Well Andrew, it’s like this.” And I go, “Okay, so there’s two people who are experiencing this, I need to change.” But reflection is a deliberate act and it’s part of creating a safe work environment. I must say on this Tom, we’re getting Sarah Helwich coming in, who is one of the drafters of the legislation. Do a workplace watch with Nina, you and I, and that’ll be out in about five or six days time and that’ll really do a deep dive in this. So I think it’s going to be a fascinating place.

Tom Daly: That’ll be good.

Andrew Douglas: Why don’t we go over to the case study?

Tom Daly: So, “Meana had worked with Jason for ages. at least it seemed that way. She had work for Jason as his accounts clerk and had navigated each iteration of the new accounting software as they grew. Jason’s business had expanded from a small operation in a country town to a national logistics company. Meana now managed three other account staff, but the workload had increased. His new high-end accountants had introduced a large… A complex management accounting system, which was overwhelming.

The training they received from a manager at the firm was unhelpful and they were treated as dinosaurs. The error rate grew and Jason spoke to her to find out the problem. She unloaded on him about the lack of consultation in the changes, inadequate training, huge workloads, and never receiving any thanks. She felt frazzled and scared. Her pulse raced as she walked into work each day and she couldn’t sleep, and struggled to eat. Her stomach ached from the anxiety that coursed through her. The next day he brought in Miss Prim from his new accountant and told Meana, that Miss Prim could handle the hard tasks and she would never do the easier data entry work.”

Andrew Douglas: She would do the easier data.

Tom Daly: Sorry, it’s hard to read this.

Andrew Douglas: That’s my writing it’s all right.

Tom Daly: All right. “He said that should take off the pressure. She tried to explain that this was not what she wanted, but Jason said, ‘Don’t worry, this will be easier for you and there will be no pressure.’ Miss Prim spoke to her in a demeaning manner and micromanaged her. Within a week she left work and had her doctor give her a month off.”

Andrew Douglas: Alright, well Tom, why don’t we go to the first question, which is, were there psychological hazards and what actions would Jason be required to undertake under the new regulations and code? So I think it’s not hard to see what they are, aren’t they? There is workload issues.

Tom Daly: Yep.

Andrew Douglas: There’s lack of clarity.

Tom Daly: Yep.

Andrew Douglas: There’s removal of relevant work, so there is a taking away of work. There’s a lack of reward and recognition. I mean we’ve got a whole lot of issues there in psychological hazards but the thing that jumps off the page to me really is this, Meana was a person who knew what they were doing, okay? And there was no consultation, there was no engagement. So in bucket one, the first thing in change would’ve been to get a consultation process and have Meana drawn into it. The second thing is to recognise that she did have deep knowledge within the business and that that should have been rewarded.

Tom Daly: Yep.

Andrew Douglas: But coming in over the top and introducing someone who didn’t respect them and micromanage them was just terrible.

Tom Daly: Yeah.

Andrew Douglas: And the micromanagement is a bullying, so it’s one of the egregious breaches that exists just there.

Tom Daly: Right.

Andrew Douglas: So there we are, why don’t we go to question two Tom, what are we up to next?

Tom Daly: So could Jason and his business be prosecuted under safety law?

Andrew Douglas: What do you reckon?

Tom Daly: I’m going to say yes, Andrew.

Andrew Douglas: Oh no, you’re right. There’s clear primary duty breaches there, okay? Because under what is reasonably practical, clear hazards arising, there of a high level of risk, okay? Frequent big consequence and there is no controls. And in fact like so many well-meaning people, he’s gone in to try and fix it without even thinking what she needed. What she wanted was involvement, engagement, and skill. She wanted education.

Tom Daly: Yep.

Andrew Douglas: She wanted to have control but control was taken away. And remember in psychological hazards, the biggest issue is the removal of control and autonomy.

Tom Daly: Yeah.

Andrew Douglas: It really harms people. So does Meana have a general protections claim? She hasn’t resigned or she hasn’t been terminated I should say. But general protections of course arises even when you’re employed.

Tom Daly: Right.

Andrew Douglas: So she puts her hand up, she raises a workplace right. And says this is harming me. And the result is to her detriment, her work is taken away.

Tom Daly: Right.

Andrew Douglas: She has a very, very strong general protections and potentially an injunctive proceeding if a union was involved, which it’s not. Okay so I that’s… I just chuck that in because it’s interesting. What about workers’ compensation? Does she have a workers’ comp claim?

Tom Daly: Well if she’s suffered any psychological injury, yeah she surely would.

Andrew Douglas: Yeah so under the new legislation and different elsewhere, everywhere else, there’s no doubt at all the injury that she’s suffered and described is sufficient to meet a definition of injury under the legislation. And here any general practitioner would rate it under DSM III as anxiety, some sort of adjustment disorder. So she’d be up there, it’d be a really good and sustaining claim.

Tom Daly: Right.

Andrew Douglas: What do you reckon, bullying? I reckon it is.

Tom Daly: Yeah.

Andrew Douglas: Repeated action so let’s-

Tom Daly: Repeated.

Andrew Douglas: So there’s repeated action over a prolonged period of time, it left her feeling hurt and harmed. So objectively any person would’ve been hurt or harmed, so that’s tick two. Three, it happened in the workplace, tick. Four and this is the killer, four, it affected her safety at work so at that stage it is bullying. And I think you’ve got to understand at that stage, the level of prosecution risk, if she was very badly harmed, if we go back to safety, could be a much more serious charge, okay?

Tom Daly: Right and Andrew, what interventions do you suggest could have occurred to prevent these risks?

Andrew Douglas: I think, you know, when we spoke to Sarah about this, she quite correctly said the protective… Remember there are interventions and protections. The relationship between Jason and her was a strong one.

Tom Daly: Yep.

Andrew Douglas: So it is a protective thing that could have been relied upon, where Jason really just had to engage with her in a consultative process and tell her how much he relied and trusted her. That would’ve allowed her to take the extra pressure because she would’ve felt he was behind her. But clearly, once you realise there’s change, there’s a need to assess and develop a plan to how to manage it. Both in the management of change process, which in itself is a psychological hazard, but also in the delivery of skills and capability. But removing someone’s capacity to do work incredibly bad. So it is all about engagement. Bucket one, bucket two’s now on, there’s warning signs so we’re into bucket two at that stage Jason should’ve engaged. And finally what are the interventions? Well we’ve talked about those. God, you’ve got ahead of me on game. We can tell Tory to put her hand down now, she can just relax. We’ve got a… Our producer’s giving us a hard time.

Tom Daly: Yeah, that’s quite-

Andrew Douglas: Her arm’s waving like this as she gets tired.

Tom Daly: Quite the operation in here.

Andrew Douglas: Okay, well look, can I say Tom, great to have you on board to do it. First one really well done and next week the major topic is going to be the sentencing advisory council. ’cause it is the impact of what Victoria is going to do over the next year will have a significant impact Australia wide and possibly into New Zealand as well. So I think we’re really got to focus on those 12 recommendations. There’s really interesting stuff, it’s not all terrible. There’s some good stuff about adjusting penalties based on the size and function of business and stuff we’ll talk more about. And we’ll build a case study next week based on what happens if the Sentencing Advisory Council does, you know, its recommendations are acted upon and assuming the rest of Australia does follow, which it does differently unfortunately, we look at industrial it might take two or three years for a catch up period. But I think it’s a really fascinating place ’cause my fear at the moment is safety legislation is being generated by financial stresses that exist in government around workers’ compensation. And this is a ma matter like in New South Wales, seven or eight years ago, maybe 10 years ago, where they had a positive duty and they used to make money out of prosecutions.

Tom Daly: Yeah.

Andrew Douglas: So they’re actually in the black from the amount of prosecution, I’m worried we are going down that path again.

Tom Daly: Yeah.

Andrew Douglas: Alright, well thank you very much. Thanks for watching. Here’s cheers, make sure you give us the thumbs up.

Tom Daly: Comment.

Andrew Douglas: And make sure you say how good Tom was, ’cause he needs his support, okay? Reward and recognition, guys.

Tom Daly: Appreciate it.

Andrew Douglas: Yeah, my protective mechanism of liking Tom is not enough. See you later, bye-Bye.