Recently, Ignite has been handling more matters where employees are claiming psychological injury. This is reflective of recent changes announced by SafeWork Australia, the governing body that establishes a ?model? WHS Act and accompanying regulations for Australian states and territories to implement, which has defined ?psychosocial? hazards and risks. Whilst this amendment to WHS legislation is not yet implemented in NSW, it is arguably only a matter of time. At Ignite, we will break down the changes to the ?model? WHS Act and its implications for the ?Person Conducting Business Undertaken? (PCBU).
Defining ?Psychosocial? Hazards and Risks
In 2021, the ?model WHS Act noted that risks to health were not only physical but could also be ?psychological?. Expanding on this, the amendments released on June 6 2022 make it clear as to the scope of ?psychosocial? hazards and risks. Under the model WHS regulation, a psychosocial hazard is one that may cause psychological harm that either arises from or is related to either:
- The work environment
- 'Plant? at a workplace
- Workplace design or management
- Workplace interactions or behaviours
Further to this, a psychosocial risk is defined as a risk to the health or safety of an employee or other persons that occurs from a psychosocial hazard.
What does this mean for the Person Conducting Business Undertaken?
It is well and good that the ?model? WHS Act and its accompanying regulation have defined ?psychosocial? risks and hazards but in practice, it is important to note what this means for the PCBU. It is crucial for the PBCU to implement measures that aim to eliminate psychosocial risks to the extent that is possible. If this is not achievable, there still exists an obligation to minimize the risk.
When determining the appropriate measures, the PBCU must consider ALL relevant factors, including:
- The frequency, severity, and times of the exposure of workers and other people to the psychosocial hazard;
- How various psychosocial hazards may interact with each other;
- Job design, not limited to job demands and tasks as well as how work is managed, organized, and supported;
- Design, layout, and environmental conditions of workplace premises with a safe means of entering and exiting the premises as well as the provision of facilities for the welfare of workers;
- Plant, substances, and structures at the workplace;
- Workplace culture, namely interactions and behaviours;
- Information, training, and direction provided to workers;
Other changes to ?model? WHS legislation
Whilst the biggest change to the WHS Act is the inclusion of psychosocial risks and hazards, it is not the only change that has been realised. Other changes include:
- Clarifying that ?work groups? are ones that feature workers who are ?proposed? to form the group. This has been reflected in the Worker Representation and Participation Guide.
- Ensuring that either a Health and Safety Representative (HSR) or their deputy is entitled to attend an HSR course of their choice provided that:
- It is approved by the regulator, and;
- The HSR is entitled to attend the course under the regulations.
In circumstances where the HSR and the PCBU cannot agree on either the time off or costs associated with attending the course, either party may ask the WHS regulator to issue an investigator to decide the matter.
- A WHS Permit Holder must provide notice of the proposed entry and suspected contravention as soon as possible. This is in contrast to previously having a minimum of 24 hours' notice.
- Ensuring that provisions around servicing notices are aligned to provide consistency.
- The ability for WHS inspectors to require the production of documents and answers to questions within 30 days of any inspector?s entry into the workplace.
- Allowing WHS regulators to obtain relevant information for an investigation of potential breaches from other jurisdictions.
- Allowing WHS regulators from different jurisdictions to share information where it allows them to perform their functions under the ?model? WHS Laws.
- A Category 1 Offence is where a duty holder is either grossly negligent or reckless in exposing an individual to serious harm or death. For such an offence to occur, the necessary physical elements must also exist.
- Extending the timeframe in which a person can bring forth a request to the WHS regulator about prosecution to a Category 1 or 2 offence to 18 months for an act or 6 months after either an inquest ends or a report is made of the inquiry, If an investigation is ongoing, the WHS regulator must provide a written update every 3 months until the investigation is complete.
- Prohibiting insurance or other arrangements to cover the costs of a penalty or fine in relation to a breach of the WHS Act. The model WHS Act also voids any arrangement that covers part or all of a person?s liability in receiving a monetary penalty for breaching the WHS Act.
- New requirements on record keeping and operator training when dealing with amusement devices and passenger ropeways. It is now a ?competent? person?s responsibility for supervision, maintenance, and conducting a detailed inspection of amusement devices and passenger ropeways on an annual basis. In terms of record keeping, the logbook must include statutory notices issued, maintenance records, operator details as well as instruction, training, daily checks, and operation with and without passengers.
- Compliance with relevant Standards is not mandatory unless it is explicitly stated
Ignite HR & Employment Law is supporting businesses to understand their obligations, upgrade their current policies, undertake training and information sessions for businesses. If you find yourself in a situation where a staff member makes allegations in relation to any of these workplace behaviours you may need to do an investigation we can assist in addressing a sexual harassment or bullying complaint.
Talk to us to understand your obligations