The Psychosocial Series –
The WHS Laws

The main object of WHS laws is to “provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces.”¹

Because ‘health’ is defined in the WHS Act 2011 as meaning “physical and psychological health”², the WHS laws and concepts apply just as much to psychological health and safety as they do to physical health & safety.

However, instead of framing WHS obligations in terms of preventing harm to a person’s psychological health, the WHS Regulation 2016 and the Code of Practice: Managing psychosocial hazards at work (May 2021) refer to ‘psychosocial’ hazards and risks instead.

There has been a lot of confusion about what ‘psychosocial’ actually means other than it:

  • is used to describe hazards and risks,

  • can be attributable to aspects of the workplace, and

  • relates to psychological harm.

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¹Section 3, the WHS Act 2011.

²Section 4, the WHS Act 2011.

The contents of this guide are for information purposes only and should not be treated as being legal advice.

Year 1 of our Navigating Workplace Wellness project is designed to help PCBUs in SMEs better understand their WHS obligations from both a theoretical perspective and a practical one.

This guide:

  • explains what the WHS laws prescribe in terms of managing psychosocial hazards and risks, and

  • gives examples of the types of harm that can result if a PCBU’s psychosocial risks aren’t managed effectively.

Duties under the WHS Act 2011

In relation to preventing psychological harm, the two most relevant health & safety duties for a PCBU are:

  • Section 20 of the WHS Act 2011 – The duty of a PCBU with management or control of a workplace (because the workplace creates the psychosocial hazard), and

  • Section 19 of the WHS Act 2011 – The PCBU’s primary duty of care (because this is how the PCBU must manage the risk of psychosocial hazards).

What the WHS Regulation 2016 provides

The WHS Regulation 2016 uses the word ‘psychosocial’ in terms of hazards and risks, without actually explaining what ‘psychosocial’ actually is.

Instead, it simply:

  • defines ‘psychosocial hazards’ and ‘psychosocial risks’, and

  • states how a PCBU must manage psychosocial risks.

The definition of ‘psychosocial hazard’

A ‘psychosocial hazard’ is defined³ as being a hazard that:

  • arises from, or relates to:

    • the design or management of work,

    • a work environment,

    • plant at a workplace, or

    • workplace interactions or behaviours, and

  • may cause psychological harm, whether or not it may also cause physical harm.

The definition of ‘psychosocial risk’

A ‘psychosocial risk’ is defined⁴ as being a risk:

  • to the health or safety of

    • a worker, or

    • other person

  • arising from a psychosocial hazard.⁵

Clauses relating to control measures⁵

The WHS Regulation 2016 requires a PCBU to implement control measures:

  • to eliminate psychosocial risks, so far as is reasonably practicable, and

  • if it is not reasonably practicable to eliminate psychosocial risks – to minimise the risks, so far as is reasonably practicable.

A PCBU must manage psychosocial risks⁶ ‘in accordance with Part 3.1 other than clause 36’.

This means that all of the PCBU’s usual risk management processes apply except for the ability to apply the hierarchy of controls.

It also prescribes those matters which a PCBU must take into consideration when managing the risk of psychosocial hazards.

They include (but are not confined to)⁷:

  • 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, and

    • of workers’ accommodation,

  • the plant, substances and structures at the workplace,

  • workplace interactions or behaviours, and

  • the information, training, instruction and supervision provided to workers.

The usual clauses regarding the maintenance and review of control measures also apply.

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³Clause 55A of the WHS Regulation 2016.

⁴Clause 55B of the WHS Regulation 2016.

⁵Clause 55D of the WHS Regulation 2016.

⁶Clause 55C of the WHS Regulation 2016.

⁷Subclause 55D(2) of the WHS Regulation 2016.

The Code of Practice

The Code of Practice: Managing psychosocial hazards at work (May 2021) sheds more light on what the word ‘psychosocial’ actually means.

It explains that ‘psychosocial hazards at work’ are “aspects of work and situations that may cause a stress response which in turn can lead to psychological or physical harm.”

Aspects of work and situations

Given that the majority of workers’ compensation claims for psychological injury are attributable to ‘bullying and harassment’, we will focus on ‘social factors at work, workplace relations and social interactions’ as well as ‘interpersonal conflict’ and other workplace interactions.

The Code of Practice describes those aspects of work and situations as ‘stemming from’:

  • the way the tasks or job are:

    • designed,

    • organised,

    • managed, and

    • supervised,

  • tasks or jobs where there are inherent psychosocial hazards and risks,

  • the equipment, working environment or requirements to undertake duties in physically hazardous environments, and

  • social factors at work, workplace relationships and social interactions.

According to the Code of Practice, a common error that PCBU’s fall into when trying to manage the risk of psychosocial hazards is to only focus on poor workplace behaviours by an individual.

Context is important, so a PCBU should also identify and/or sufficiently control aspects of organisational behaviour (such as management styles) which may be contributing to poor interpersonal behaviours.

A stress response

Of itself ‘stress’ is not an illness or disease, it is a natural bodily process involving a ‘fight or flight’ response.

The problem is when we experience stress for prolonged periods of time and cannot react through ‘fight or flight’.

Psychological or physical harm

Prolonged levels of stress may cause psychological and/or physical harm.

Both are equally as important.

Conclusion

It is important for a PCBU to be aware of the fact that it is a prolonged state of being in heightened stress that can cause ill-health. It is also important for a PCBU to know how to best manage those stressors that present a psychosocial risk in the workplace.

However, before a PCBU manage a psychosocial risk effectively, it must first understand:

  • what those stressors actually are, and

  • what control measures can be used to minimise the risk of harm caused by them.

The next two guides in this series will address each of those topics.

The next guide in this psychosocial series explains the risks.