Express duty to manage psychological risks to work health safety and wellbeing in Queensland from 1 April 2023

Changes to Queensland’s Work Health and Safety Regulation 2011 introduce an express duty to manage psychosocial risks from 1 April 2023.

But what does that mean for dutyholders? We explain what you need to know.

What is a psychosocial risk?

The concept of a psychosocial risk could hardly be wider.

It is defined as a risk to the health or safety of a worker or other person from a … hazard that:

• arises from or relates to:
• the design or management of work;
• a work environment;
• plant at a workplace; or
• workplace interactions or behaviours; and
• may cause psychological harm, whether or not the hazard may also cause physical harm.

The definition appears to encompass every difference of opinion or personality clash, every decision about working from home conditions, every discussion about performance, every change to how work is performed and all formal performance management.

…but does it change a dutyholders existing duty to consider psychosocial risks as part of the primary duty?

A dutyholder already has a primary duty to ensure, so far as is reasonably practicable, the health and safety of relevant workers, or that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking.

The new regulation does not change that.  However, from April 2023, it:

• recognises, expressly, the need to consider psychosocial risks to meet that primary duty, making a failure to consider psychosocial risks, expressly, riskier than ever; and
• imposes an express obligation to identify and manage those risks, through risk management focused on elimination or, if elimination is not reasonably practicable, minimisation of those risks using the hierarchy of controls.

What does the new regulation require a dutyholder to do?

Once the new regulation comes into effect from 1 April 2023, a dutyholder will have a positive duty:

• to determine what control measures it needs to implement, to manage psychosocial risks; and
• in determining what control measures it needs to implement, to have regard to all relevant matters, including:
• the duration, frequency or severity of the exposure of workers and others to psychosocial hazards and how the psychosocial hazards may interact or combine;
• the design of work, including job demands and tasks;
• the systems of work, including how work is managed, organised and supported;
• the design and layout, and environmental conditions, of the workplace, including the provision of—
• safe means of entering and exiting the workplace; and
• facilities for the welfare of workers;
• the design and layout, and environmental conditions, of workers’ accommodation (as defined);
• the plant, substances and structures at the workplace;
• workplace interactions or behaviours; and
• the information, training, instruction and supervision provided to workers.

To show how they comply with this regulation, dutyholders will need to demonstrate that they have considered, and consider regularly, such things as whether:

• deadlines set are reasonable;
• the tools, equipment and support provided to perform the role or meet deadlines are adequate;
• menial tasks outside of the job description are a regular feature of work;
• work is being distributed evenly, or to reflect capacity and observed resilience, underpinned by adequate support; and
• it has given managers, or team members, the appropriate or sufficient training to help them perform their respective duties (including managing others) safely.

Contact a member of our Employment and Safety team to discuss how we can help dutyholders prepare for the 1 April 2023 deadline.

What are other States doing?

The new regulation is Queensland’s response to Safe Work Australia’s Model Code of Practice: Managing psychosocial hazards at work.  Other States have taken a different approach, underpinned by a similarly broad definition of psychosocial hazards.

In Victoria, a similar regulation has been prepared but not yet been introduced, and the Government has not given a firm date as to when that might happen.  Importantly, that regulation would (if released in its current form) include sexual harassment as a psychosocial risk and, most importantly, require large employers to report complaints involving allegations of aggression or violence, bullying or sexual harassment to WorkSafe.

New South Wales has introduced the Codes of Practice on Managing Psychosocial Hazards at Work.  Much like the new regulation will do in Queensland, the NSW Code guides dutyholders in how to meet the primary duty, offering a wide range of examples of common psychosocial hazards and guidance about how to manage them at work.  While guiding dutyholders about how to meet that duty, the Code of Practice may also help a prosecutor convince a Court of what is known, and hence what should have been done, to help manage the primary duty.

Similarly, Western Australia has introduced Codes of Practice on Workplace Behaviour, Psychosocial Hazards in the Workplace and Violence and Aggression at Work.  Each Code of Practice guides dutyholders’ compliance with that State’s occupational safety and health laws and a Court’s understanding of what control measures are available to manage psychosocial hazards as part of determining what is ‘reasonably practicable’ in discharging relevant duties.

In contrast, in South Australia, Safework SA provides guidance materials to help dutyholders determine how to control psychosocial risks in the workplace, without psychosocial-specific regulations or codes of practice, supported by a complaints process to receive and investigate individuals’ concerns regarding psychosocial risks.  Once again, that material is available to all dutyholders, and Courts, to establish what should have been done to manage these risks.

Prudent dutyholders will act now to consider what tailored steps they need to take to help meet these important duties.