NB. This article is Part II in a series on Psychosocial Hazards.  Click through for Part I which covers:

• What are psychosocial hazards?
• Duty of Care.

Managing Psychosocial Hazards

The Codes identify multiple steps to manage psychosocial risks.  Because of this identification, Holman Webb expects that regulators and Courts will require PCBUs and employers to have implemented similar steps.

If they have not, they may be found in breach of the legislation.

Step 1 – Identify the psychosocial hazards

The first step is to actively enquire and assess whether there are any psychosocial hazards in the workplace.

These could be internal and external.  For example these include the work environment, economic pressures, interactions and behaviours between people at work and within the supply chain.  Design and management of your organisation as a whole, resourcing decisions, design and maintenance of buildings, hazardous work environments and locations.

Step 2 – Assess and prioritise the psychosocial hazards and risks

Once psychosocial hazards have been identified or considered, some consideration should be given to dealing with them.

It is necessary to consider the main tasks or duties that make up your workers’ tasks and jobs, the number and locations of affected workers and how psychosocial hazards could increase or decrease any risk.  The next consideration is the consequences for workers if exposed, including the severity of possible harm and the duration of exposure to harm. 

The exercise is one to measure the reasonably foreseeable likelihood that workers may experience harm whilst carrying out the tasks or jobs.  The PCBU must determine the consequences and likelihood of it occurring. 

Step 3 – Control psychosocial hazards and risks

Once risks have been identified, and some consideration has been given to how significant they might be in the particular workplace, some consideration should be given to what should be done to prevent them occurring.

There is no one size fits all measure that can be implemented in every workplace. Control measures to eliminate hazards should be tailored to each organisation. This will depend on business size, type and work activity. 

Organisational rules, policies and procedures must be developed and followed. Factors such as rostering working hours, task rotation, provision of breaks and opportunities for rest and recovery must be considered and adjusted if there is a psychosocial hazard.

The right information, training and instruction must be provided. This will require any reasonable adjustments for individual workers.  This is relevant in times where a worker is coming back from a physical injury - suitable duties must be given.

Step 4 – proactively implement, maintain, monitor and review the effectiveness of controls

The PCBU must implement its controls to make sure that safe work procedures and training is actually being followed and implemented in the workplace. This also includes steps of proactively implementing, maintaining, monitoring and reviewing the effectiveness of the controls.

Responding to reports and incidents

The steps above outline how to plan and set up systems to foresee and attempt to prevent harm from the risks.  There is however a need to also deal with incidents when they occur. 

Responding to a serious workplace psychosocial incident will require that the PCBU undertake an investigation in a fair, timely and balanced way. It is important that the investigation be carried out in a way which is fair and which captures all relevant information needed by the PCBU and employer.

It must also be carried out in a way that both protects information obtained from discovery, and places the employer or PCBU in the best position to meet any allegation or claims against it. 

The comprehensiveness of an investigation will be proportional to:

• the level of risk,
• the seriousness of actual and potential psychological harm; and
• the number of workers affected. 

This is relevant to the employer’s size.  For example, a small business may choose to have a conversation about an incident, in contrast to a larger company, which would undertake a serious formal investigation.

When investigations are undertaken, especially around allegations of serious misconduct, the PCBU should ensure that those tasked with undertaking the investigation are competent and able to identify psychosocial hazards, the risk, any root causes, as well as any appropriate prevention and intervention controls.

The process needs to be fair, objective and conducted in a timely manner to ensure due process for those who raise the issue, and those who have allegations made about them. This is relevant to s 11A of the Workers Compensation Act 1987 (NSW), which entails that no compensation is payable for psychological injury caused by reasonable actions of the employer. Especially with regard to discipline, the process needs to be fair and reasonable.

It is also important to keep a record of risk management process and outcomes.  In the case of a matter being referred to SafeWork, it would ask to see a copy of any records.  Record keeping is optional, but it will demonstrate how risks are monitored and managed.  It does not need to be incredibly detailed, but it will help show that the PCBU is following the regulations.

Employers should also consider whether the information gathered in this investigation process is protected by legal professional privilege.  If it is not, any statements obtained will be discoverable in any civil court proceedings albeit not necessarily any criminal proceedings. 

Before any investigation starts, careful consideration should be given to how it will be undertaken, whether steps need to be put in place to ensure that any contentious information is protected by privilege, and otherwise to protect the information identified in that process from unnecessary discovery. 

Safe Return to Work

The PCBU must adhere to workers compensation laws, including safe return to work after an injury. 

There might have to be specifically medically authorised modification to an employee’s duties.  The PCBU must proactively manage any new risks that arise in this area.  This returns to the PCBU to the first step, set out above, to identify any new psychosocial hazards, and review its processes.

Final thoughts

We expect that these Codes will cause significant tension in a workplace as they not only consider equipment and processes for doing work, they also relate to the way that staff and managers interact, and how abstract concepts such as workload and communications are managed in a way to protect workers.

Holman Webb expects that there will be significant delay by employers in implementing this Code, but it is likely to give rise to a number of investigations and complaints which will in turn force employers to give serious consideration to how these risks can be managed.

Because claims of injury and harm giving rise to psychological injury can have very significant emotional impact on workplaces and workers, and given the significant costs of claims arising from psychological claims, we strongly recommend that employers proactively take steps to manage these risks, and to seek legal advice early when an incident occurs. 

The legal advice in setting out the processes will also protect PCBUs as it shows a genuine attempt to comply with the Code.

Holman Webb’s Workplace Relations Group can assist you in all areas in respect to establishing systems, and dealing with incidents. 

If you have a query relating to any of the information in this article, or would like to speak with Workplace Relations Partner Nick Maley with regard to how these changes are set to impact you and your organisation – please don’t hesitate to get in touch today