Psychosocial Hazards – Are your Staff at Risk?  Are you?

Overview

On 1 April 2023, the Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (Qld) came into force, bringing with it a new Code of Practice – the Managing hazards at work Code of Practice 2022 (the Code).

These regulatory changes emphasise the importance of addressing and managing psychosocial hazards and risks and require all ‘persons conducting a business or undertaking’ (PCBU) to do so by applying the risk management provisions of the Work Health and Safety Regulations 2011 (Qld).

As barristers we fall within the definition of a PCBU, meaning we owe obligations to:

1. any person we employ (e.g. support staff), either via our own business or through a Chambers service company;
2. those who are exposed to our businesses (e.g. visitors to Chambers and clients); and
3. ourselves as self-employed operators.

What is a psychosocial hazard?

Psychosocial hazards refer to non-physical factors in the workplace that can pose risks to the mental health and well-being of an individual. The Code outlines some common psychosocial hazards (many of which will be familiar to those of us in practice), including:

1. High job demands: Such as unachievable deadlines or unrealistic expectations.
2. Low job control: Such as being excessively micromanaged.
3. Poor support: Including inadequate training and guidance.
4. Low role clarity: Occurring when tasks frequently change.
5. Poor workplace relationships: Which can lead to conflicts and stress.
6. Exposure to traumatic events or material: Particularly relevant to those of us practicing in crime, family and personal injury.
7. Aggression: Including yelling, physical intimidation and passive aggressive behaviour.
8. Fatigue: Resulting from long hours and demanding workloads.
9. Bullying: Including belittling comments, differential treatment or ostracising.
10. Harassment: Including sexual harassment, poorly thought out jokes and other forms of mistreatment.

These psychosocial hazards can manifest in various ways, from sustained low-level stress to immediate harm.

While many of these factors may be considered by some to be part and parcel of the legal profession, we have proactive obligations to manage these risks, not only for our own safety, but for those we employ and come into contact with in the course of our business.

Who is at risk?

Psychosocial hazards can affect any person, but some may be more vulnerable, including people with specific attributes (e.g. sex, race, religion, pregnancy, gender identity, sexuality or age), those with limited work experience (e.g. young support staff) and those engaged in casual or insecure work arrangements.

The Code and Regulations apply to a wide range of individuals, including: employees, workers, contractors, self-employed individuals, trainees, apprentices, and work experience students. They also encompass visitors and clients who attend the workplace.

Who has a health and safety duty in relation to psychosocial hazards?

PCBU: A PCBU must ensure, as far as reasonably practicable, the health and safety (including psychological health) of:

• its workers while they are at work (including workers directly or indirectly engaged by the PCBU, or whose activities are influenced or directed by the PCBU);[1]
• other individuals exposed to the work or business of the PCBU (e.g. visitors and clients who attend Chambers);[2]
• where the PCBU is a self-employed person – themselves.[3]

This means we not only owe obligations to all those who may attend Chambers (for work or otherwise), we also owe obligations to ourselves to manage psychosocial hazards.

Ensuring the health and safety of ourselves and others includes, as far as reasonably practicable:

• the provision and maintenance of a work environment without risks to health and safety;
• the provision and maintenance of safe systems of work;
• the provision of adequate facilities;
• the provision of information, training, instruction or supervision; and
• that the health of workers and the conditions at the workplace are monitored.[4]

Workers: Workers must take reasonable care of their own health and safety, ensure their actions do not harm others and comply with reasonable instructions and policies issued by the PCBU.[5]

Officers of a PCBU: Officers of the PCBU, which includes the directors of a service company, must exercise due diligence to ensure that the PCBU complies with its duties. This includes acquiring knowledge of psychosocial risks, understanding the nature of operations, providing resources to minimize risks and responding to incidents and hazards effectively.[6]

An officer’s duty is immediate, positive and proactive.

Other persons: Other persons in a workplace must also take reasonable care of their own health and safety, ensure their actions do not harm others and comply with reasonable instructions issued by the PCBU.[7]

What do I have to do to comply?

PCBUs need to examine the way they design, organise and manage work, the work environment, the equipment used and workplace behaviours to identify where hazards might exist.[8]  When identifying psychosocial hazards, PCBUs must consult with workers to properly understand where those risks lie.[9]

In the context of Chambers, this may include:

• meeting with support staff and members of Chambers to identify psychosocial risks;
• setting reasonable and clear deadlines when giving work to support staff;
• providing support staff with clear position descriptions that outline their work duties;
• providing training and guidance, however informal, to support staff;
• having clear workflows and processes in place that allow support staff to manage their workload, particularly where they receive work from multiple members of Chambers;
• being conscious of our own stress and psychological health and ensuring that stress is not misdirected to others in Chambers;
• being sensitive to how we expose support staff, and each other, to traumatic or graphic material and respecting their willingness to review or be exposed to such material;
• ensuring support staff take appropriate breaks, and ensuring members of Chambers respect those breaks;
• being mindful of our corridor conversations;
• proactively disavowing bullying or harassing behaviour in Chambers.

What happens if I do not comply?

Failure to comply with the duty to manage psychosocial harm may result in significant penalties under the Work Health and Safety Act 2011 (Qld), or criminal prosecution where the failure amounts to reckless conduct.[10]

The maximum penalties for failing to comply with the duty as a PCBU range from$154,800 for individuals (or $774,000 for body corporates)[11] to $928,000 for individuals (or $4,644,000 for body corporates) where the conduct amounts to reckless conduct.[12]

Further support

Guidance on how to mitigate psychosocial hazards and foster a mentally healthy workplace can be found here – Mentally healthy workplaces toolkit | WorkSafe.qld.gov.au.

[1] Work Health and Safety Act 2011 (Qld) s 19(1).

[2] Work Health and Safety Act 2011 (Qld) s 19(2).

[3] Work Health and Safety Act 2011 (Qld) s 19(5).

[4] Work Health and Safety Act 2011 (Qld) s 19(2).

[5] Work Health and Safety Act 2011 (Qld) s 28.

[6] Work Health and Safety Act 2011 (Qld) s 27.

[7] Work Health and Safety Act 2011 (Qld) s 29.

[8] Work Health and Safety Act 2011 (Qld) s 34.

[9] Work Health and Safety Act 2011 (Qld) ss 47 and 49.

[10] Work Health and Safety Act 2011 (Qld) s 31(3).

[11] Work Health and Safety Act 2011 (Qld) s 33.

[12] Work Health and Safety Act 2011 (Qld) s 31.