Current status of WHS regulations addressing psychosocial risks

Following amendments made by Safe Work Australia (SWA) to the model Work Health and Safety Act and the model Work Health and Safety Regulations (model WHS Regulations) in June 2022, the Commonwealth and most states and territories have implemented specific regulatory duties requiring persons conducting a business or undertaking (PCBU) to manage psychosocial risks. 

Victoria is the only Australian jurisdiction that does not have any express regulation of this risk, but this may change towards the end of 2023.

The model WHS Regulations define a psychosocial risk as “a risk to the health or safety of a worker or other person arising from a psychosocial hazard.” “Psychosocial hazard” is defined as a hazard that arises from or relates to the design or management of work, work environment, plant, or workplace interactions or behaviours and may cause psychological harm (whether or not it may also cause physical harm).

The SWA amendments to the model WHS Regulations

The model WHS Regulations now include specific duties for PCBUs to:

• Manage psychosocial risks in accordance with Part 3.1 (including to identify reasonably foreseeable hazards that could give rise to risks; to eliminate risks so far as is reasonably practicable and if not reasonably practicable, to minimise those risks so far as is reasonably practicable; maintain and review control measures implemented) other than regulation 36 (regarding the hierarchy of controls)
• Implement control measures to eliminate psychosocial risks so far as reasonably practicable or, if not reasonably practicable, to minimise the risks so far as is reasonably practicable.

In determining the control measures to implement, regard must be had to “all relevant matters” including:

• The duration, frequency and severity of the exposure of workers and other persons to the psychosocial hazards
• 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
• The plant, substances and structures at the workplace
• Workplace interactions or behaviours
• The information, training, instruction and supervision provided to workers.

Jurisdictions in which specific regulations concerning psychosocial risks are in place

The following jurisdictions have introduced the amendments to the model WHS Regulations in respect of managing psychosocial risks:

Jurisdiction	Legislative instrument	Commencement date
New South Wales	Work Health and Safety Regulation 2017 (amended to include provisions relating to psychosocial risks)	1 October 2022
Tasmania	Work Health and Safety Regulations 2022 (new regulation which implemented all the amendments made by the SWA to the model WHS Regulations concerning psychosocial risks)	12 December 2022
Western Australia	Work Health and Safety (General) Regulations 2022 (new regulation, which includes provisions relating to psychosocial risks)	24 December 2022
Commonwealth of Australia	Work Health and Safety Regulations 2011 (inserted the amendments to the model WHS Regulations concerning psychosocial risks, with one exception. The Commonwealth WHS Regulations require PCBUs to use the hierarchy of controls contained in regulation 36 for managing psychosocial risks)	1 April 2023
Queensland	Work Health and Safety Regulation 2011 (amended to reflect the model WHS Regulations although (as with the Commonwealth) regulation 36 is not excluded).	1 April 2023
Northern Territory	Work Health and Safety (National Uniform Legislation) Regulations 2011 (amended to reflect the model WHS Regulations concerning management of psychosocial risks)	1 July 2023

 

Jurisdictions in which specific regulations concerning psychosocial risks will commence shortly

Jurisdiction	Legislative instrument	Commencement date
ACT	Work Health and Safety Amendment Regulation 2023 (No. 1) (will amend the Work Health and Safety Regulation 2011. Consistent with Qld and the Commonwealth, Regulation 36 is not excluded)	27 November 2023
South Australia	Work Health and Safety (Psychosocial Risks) Amendment Regulations 2023 (will amend the Work Health and Safety Regulations 2012 (SA). Consistent with Qld and the Commonwealth, Regulation 36 is not excluded)	25 December 2023

 

Victoria is yet to introduce regulations relating to management of psychosocial risks and hazards following the closure of the public submissions period on 31 March 2022 in respect of the proposed draft Occupational Health and Safety Amendment (Psychological Health) Regulations.  It is expected that regulations will likely emerge this year.

Nicki Milionis is a workplace health and safety lawyer and partner at Norton Rose Fulbright in Melbourne.