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NSW releases new draft Code of Practice on managing psychological risks

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NSW releases new draft Code of Practice on managing psychological risks

25 September 2020 by Nina Hoang.

In an Australian first, SafeWork NSW have issued a draft Code of Practice – Managing the risks to psychological health (Code) to assist employers readily identify mental health risks and implement appropriate controls to manage and eliminate the risks.

The Code was introduced due to the alarming statistics demonstrating businesses’ inability to properly manage psychosocial issues. The explanatory memorandum explains that only one in five NSW businesses report that they know how to manage mental health issues, worryingly less than 9% of all NSW workplaces can say that they have an established systemic sustained approach to handling mental health issues. Not only does poor mental health cause signature damage to the workers, the workplace and the community but it is also costing the economy. It is estimated that a combination of presenteeism, absenteeism and psychological workers compensation claims cost an estimated $2.8 billion in NSW every year. This is why educating businesses on how to manage mental health issues is so important.

The purpose behind the Code is to:

  1. Support compliance with businesses’ existing primary duty of care;
  2. Provide guidance around duties and obligations;
  3. Provide information about known psychosocial hazards, risks and controls; and
  4. Assist in guiding what is reasonably practicable.

The Code identifies that there are two main work-related stressors likely to eventuate in a work environment:

  1. Frequent but low to moderate levels events causing stress; and
  2. Infrequent but highly stressful events.

The first stressor relates to small incidents such as employees being subjected to tight deadlines leading to anxiety or not feeling like they are able to take breaks. These small incidents are likely to cause stress and anxiety and as this increases it can eventuate into burnout or depression. This is a real risk in the current pandemic environment with many employees working remotely. The second stressor is commonly found where an employee has been subjected to bullying or harassment of some kind. This often causes anxiety before escalating to post-traumatic stress or depression.

The Code also provides a useful guide of how to implement a hierarchy of controls for psychological risk:

  1. Identify psychosocial risks – importantly the Code emphasizes the importance of consulting with employees to identify the source of risks as they could be ingrained within the business for example if it has originated from the organisation structure
  2. Undertake risk assessment
  3. Implement appropriate controls & regular review and monitoring to ensure effectiveness of controls
  4. Create culture where there is active reporting of psychosocial hazards and they are escalated to appropriate person as soon as possible

Although it is a NSW Code of Practice, once it comes into effect it will be equally important for all jurisdictions. Although Codes of Practice are not mandatory and employers are not required to follow them, they are often used by Courts and Safety Regulators in determining what the PCBU’s state of knowledge ought to be when considering what is reasonably practicable. WorkSafe Victoria for example has noted that ‘material published by other Australian health and safety regulators’ is expected to be known by employers if there is insufficient information about the area under the Victorian legislation and codes.;

Remember s 20(2) of the Occupational Health and Safety Act 2004 (VIC) the following factors are relevant in determining what is reasonably practicable:

  1. the likelihood of the hazard or risk concerned eventuating;
  2. the degree of harm that would result if the hazard or risk eventuated;
  3. what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
  4. the availability and suitability of ways to eliminate or reduce the hazard or risk;
  5. the cost of eliminating or reducing the hazard or risk.

It is for the third element where this Code of Practice will be relevant. Especially as there is no similar Code of Practice that exists on this area within the Victorian safety space. Once this Code comes into effect, it can be expected that a similar Code will be implemented in Victoria.

Businesses are encouraged to provide comments on the draft Code here.

Have a question or need advice?

Our team is available to clarify any questions you have and provide the right advice for your business and workforce. Contact Andrew Douglas at andrew.douglas@fcwlawyers.com.au or on 0488 151 503.

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