Proposed new OHS regulations for psychological health

The Victorian Government are planning to introduce new regulations to address psychological health before the end of 2022.

The regulations will strengthen the occupational health and safety framework and will recognise that hazards that pose a risk to psychological health are no less harmful to workers’ safety and wellbeing than physical hazards.

Find out what these new regulations will mean for you and your business.

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Overview of the proposed changes

In response to the Victorian Government’s commitment to introduce regulations to address psychological health in May 2021, WorkSafe has prepared the Occupational Health and Safety Amendment (Psychological Health) Regulations (proposed regulations.

The proposed regulations will strengthen the occupational health and safety framework and will recognize that hazards that pose a risk to psychological health are no less harmful to workers’ safety and wellbeing than physical hazards.

They will also provide clearer guidance to employers on their obligations to better protect workers from mental injury.

In developing the proposed regulations, WorkSafe has engaged directly with key stakeholders, including employee and employer representatives, industry experts, medical and allied health professionals, legal practitioners, and persons of lived experience to ensure all views and concerns were considered and understood

Employers, employees, other interested parties and members of the public were invited to make submissions on the proposed regulations and associated Regulatory Impact Statement.

All feedback provided during the public comment will be considered and applied where appropriate.

Current Workplace Mental Injury

• Currently 16% of all new worker’s compensation claims in Victoria are for mental injury.
• This is expected to doubly by 2030.
• Average cost of a physical injury claim is $110k
• Average cost of a mental injury claim is $300k
• Mental injury claims result in a slower and more complicated return to work, on average mental injury claims are more than double that of physical injury claims.

Current Safety Framework

Currently, WorkSafe Victoria regulates risks to psychological health through the general duties in the OHS Act. The OHS regulations do not include any specific provisions for psychological health.

WorkSafe’s current approach also relies on non-statutory guidance, including:

• A suite of non-statutory guidance published on WorkSafe’s website to assist employers to meet their duties under the OHS Act for a range of risks to psychological health, including work0related violence, workplace bullying, work related stress, work-related fatigue, family violence and gendered violence including sexual harassment: and
• WorkSafe’s WorkWell program and toolkit, which contains practical resources, funding and networking opportunities to prevent mental injury and promote mentally healthy Victorian workplaces.

https://www.workwell.vic.gov.au/toolkit

 Proposed Regulations

The key objectives of the proposed regulations are:

• To promote the importance of psychological health and safety in the workplace,
• To elevate employers’ awareness of psychological hazards to the same level as physical hazards,
• To eliminate (so far as is reasonably practicable) workplace psychological hazards,
• To better protect Victorian workers ‘psychological health and safety against risks arising out of workplace psychological hazards.

To achieve this, the proposed regulations seek to implement the following changes:

• Clarify employers’ requirements to identify psychological hazards in the workplace,
• Clarify employers’ requirements to control risks to health and safety associated with psychological hazards,
• Introduce requirements to maintain written prevention plans for certain psychological hazards.
• Introduce a reporting scheme for applicable employers for certain psychological hazards.

Summary of Proposed Changes

Definitions

It is proposed to insert a number of new definitions in the OHS Regulations, to support employers’ understanding of psychological hazards.

The definitions include:

• bullying,
• High job demands,
• psychological response,
• reportable psychological complaint,
• sexual harassment,
• work design.

New Chapter 5A

It is proposed to insert a new chapter into the OHS Regulations, which deals with psychological health and risks associated with psychosocial hazards.

Psychosocial  hazard definition:

Psychosocial hazards are factors in the design or management of work that increase the risk of work-related stress and can lead to psychological or physical harm. Examples of psychosocial hazards might include poor supervisor support or high job demands.

Psychosocial hazards means any factor or factors in –

• The work design,
• The system of work,
• The management of work,
• The carrying out of the work,
• Personal or work-related interactions;

That may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to their health and safety.

Chapter 5 will introduce new duties for employers to:

Identify psychological hazards,

Control the risk,

Review the risk control measures,

Prepare prevention plans for certain psychological hazards including:

• Aggression or violence,
• Bullying,
• Exposure to traumatic content or events,
• High job demands,
• Sexual harassment.

Chapter 5 will introduce a new duty to report.

Employees of 50 or more employees must provide a written report to WorkSafe at the end of 2 reporting periods per year.

Reportable psychological complaint means a complaint involving any of the following psychological hazards –

• Aggression or violence,
• Bullying,
• Sexual harassment.

Timeframes for the proposed amendments

The proposed regulations and associated Regulatory Impact Statement (RIS) were released for public comment from 17th February to March 2022.

Public comment is now closed and WorkSafe will review and consider all submissions received and amend the proposed regulations where appropriate. Potential changes may also be discussed directly with key stakeholders before finalizing the regulations.

The new regulations were originally planned to commence on 1st July 2022 but are now likely to commence later in or at the end of 2022.

The new duties under Part 5A.1 and Part 5A.2 will apply immediately upon commencement.

The commencement of Part 5A.3, penalties for failure to comply with certain duties under the proposed regulations, will be delayed until 1 September 2023.

Enforcement of the new regulations will not commence until 1 September 2023.

What the proposed amendments mean for you and your business

New duties to identify psychological hazards

• Assess the risks associated with he hazards,
• Control the risks,
• Review the control measures,

Develop and implement prevention plans for the following psychological hazards:

• Aggression or violence,
• Bullying,
• Exposure to traumatic content or events,
• High job demands,
• Sexual harassment.

Employers of 50 or more employees:

Provide a written report to WorkSafe Victoria two times per year for any reportable psychosocial complaint.

A reportable psychological complaint means a complaint involving any of the following psychological hazards –

• Aggression or violence,
• Bullying,
• Sexual harassment.

For a mental injury worker’s compensation claim to be accepted in Victoria, there only needs to be one work related contributing factor.

Provisional payments were introduced in 2021. Workers who have suffered a work related mental injury are entitled to provisional payments for the first 13 weeks even if their claim is not accepted.

In Victoria for a metal injury workers’ compensation claim to be accepted, there only needs to be one work related contributing factor for the claim to be accepted.

Penalties for breaches of the new duties under the proposed regulations:

• Up to $11,095.20 for a natural person (up to 60 penalty units)
• Up to $55,476 for a body corporate (up to 300 penalty points)

WHAT YOU CAN DO NOW TO PREPARE

• Review and update your current OHS policies, procedures and systems
• Include phycological hazards in your hazard identification and risk assessment
• Develop and implement prevention plans for psychological hazards.
• Start to treat psychological hazards the same as physical hazards.
• Seek professional advice and support if needed.
• If you are unsure ask questions.