In late 2022, the Queensland Government passed amendments to the work health and safety regulations and a new code of practice regarding psychosocial hazards at the workplace.
As of 1 April 2023, those new laws commenced – Managing Psychosocial Hazards at Work Code of Practice 2022 (the Code) and the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (Qld) (the Regulation).
The introduction of the Code and amended WHS Regulation are said to provide “clarity” and “certainty” for duty holders in relation to their psychological duties under the Work Health and Safety Act 2011 (Qld) (the Act). It is also said to assist the Regulator with its enforcement powers by providing a “clearer framework for compliance action”.
This article provides a summary of the relevant requirements and obligations, how those new laws will apply to the building and construction industry and our recommendations.
What are psychosocial hazards and risks?
Risks to psychological health are referred to and defined as “psychosocial risks” and as a result of the recent changes, all persons conducting a business or undertaking (PCBU) have an express duty to either eliminate those risks or minimise to risks, if elimination is not reasonably practicable.
Before turning to the duties, it is important to highlight some of the important new terms and their scope. A “psychosocial risk” is defined as – a risk to the health or safety of a worker or other person from a psychosocial hazard.
A “psychosocial hazard” is defined as – a hazard that arises from or relates to the design or management of work; or a work environment; or plant at a workplace; or workplace interactions or behaviours; and may cause psychological harm, whether or not the hazard may also cause physical harm.
“Common psychosocial hazards” have been listed to include:
- high and/or low job demands;
- poor organisational change management;
- violence and aggression;
- harassment including sexual harassment;
- poor organisational justice;
- poor support; or
- low job control, low role clarity, low reward, and recognition.
These “common” psychosocial hazards are important to highlight, as they provide guidance on where the duties and obligations lie. In terms of “low job demand”, the Code identifies that repetitive work is the type of work that could create such psychosocial hazard, which PCBUs must now address.
This is significant for the construction, development, mining, and renewable energy sectors as repetitious work is rife in those industries. Workers are often required, and it is necessary, to complete the exact same task on repeat for an extended period of time and potentially for an entire project. One example of this would be a traffic controller, obviously necessary for a project, who is tasked with the same repetitive low demand task, day in and day out. Another example would be workers on a solar farm project tasked with installing Solar Panels, where the work and the construction methodology is the same thing over and over for thousands of panels.
PCBUs must now proactively take steps to manage and address such psychosocial hazards or risk breaching their work health and safety duties.
Who has a duty to manage psychosocial risks?
PCBUs have a duty to ensure, so far as reasonably practicable, the health and safety of workers and other persons.
As a result of the recent amendments, this now expressly includes the psychological health of workers and other persons.
This means that the pre-existing duties, including the duties of an “officer” to exercise “due diligence” to ensure the PCBU complies with its duties, are expanded to expressly include ensuring compliance with psychosocial related duties.
It is recommended that all duty holders familiarise themselves with such risks and their duties, to ensure compliance.
How to manage psychosocial risks and hazards?
PCBUs should first identify psychosocial hazards at their workplace. This involves identifying aspects of the work and work environment, including workplace interactions or management of work, that could potentially create such hazards.
Once identified, PCBUs should then assess the level of risk that the hazards are or may present to workers. By conducting a risk assessment, PCBUs should determine the likelihood and extent of the risk, including its duration, frequency and severity, and ways of eliminating or minimising it. A written record of this assessment should be kept. If an allegation of breach arose in the future, this record would be important evidence for demonstrating the PCBU discharged its duty.
Following identification and assessment, PCBUs must control the risks. If these risks can be eliminated, PCBUs have a duty to do so, as far as reasonably practicable. If they cannot be eliminated, all reasonably practicable steps must be taken to minimise the risk. This must be achieved by following the hierarchy of controls in the Code – substitution, isolation, engineering of controls, administrative controls, and lastly, suitable personal protective equipment.
Section 55D of the Regulation identifies the factors that should be considered when determining control measures for psychosocial risks. This includes, but is not limited to, the duration, frequency, or severity of the exposure, how the hazards may interact or combine, and the design and the systems of work.
Finally, the control measures must be maintained and reviewed to ensure they remain fit for purpose, suitable for the nature and duration of the work, and are installed, set up and used correctly. The code recommends that PCBUs schedule routine checks and maintenance on the control measures to regularly ensure its effectiveness. It should also be reviewed after any incident, workplace changes, or if new risks are identified.
A scenario all-to-common in the construction industry could be something as simple as the following:
A subcontractor is behind schedule and has been given direction to accelerate the works by the head contractor. The imposed tight deadlines are causing, in turn, the supervisors and managers to put pressure on the workers to complete the works as quickly as possible.
As a result of the new expressly imposed duties, you would need to consider and should undertake the following assessment/analysis:
- Identification: potential psychosocial hazards and risks include high work demands and potentially poor or inadequate emotional and practical support from supervisors and managers.
- Assessment: workers could be exposed to psychosocial risk and this exposure could be every time they go to work for an extended duration until the works are completed, and the severity could be minimal to severe depending on the pressure each individual worker may feel.
- Control measures: what measure can and should be implemented to regarding the risk? An example of a control measure that could be implemented is setting achievable performance standards and workloads for the number of workers, their work hours and tasks completed. Managers could also conduct “toolbox talks” to facilitate these discussions and provide relevant information and support.
- Review and maintenance: what measure can and should be implemented to review and maintain the system? This could include actively encouraging discussions and check-ins with the workers through “toolbox talks”. A process also could and probably should be set up to enable workers to report any incidents and provide feedback.
PCBUs must consult with workers and other duty holders per the Code and Regulations throughout all these steps.
What to do if a serious psychological injury occurs?
In some cases, all preventative measures fall away, and a risk materialises, causing a worker or other person to suffer harm.
The Regulation provides that such harm may constitute a “notifiable incident” if it involves a serious psychosocial injury. The proper procedure, including notifying the WH&S Regulator and other relevant authorities, must be followed. In the past, PCBUs have been fined upwards of $16,000 for failing to comply with their duty to notify.
Takeaway
PCBUs should familiarise themselves with the new psychosocial hazards Code of Practice and amended WH&S Regulation in order to ensure they are complying with their duties.
They should consider how psychosocial hazards may arise in their own workplaces and take all reasonable steps to address those risks if they were to materialise and a worker or other person is exposed to harm.
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