Proposed Mental Health Changes To Victorian OHS Regulations

In May 2021, the Victorian Government confirmed its commitment to introduce and strengthen regulations to address psychological health in the workplace, recognising that hazards that pose a risk to psychological health are no less harmful to workers’ safety and wellbeing than physical hazards.

While the Occupational Health and Safety Act 2004 (Vic) already requires employers to manage risks to psychological health and safety, approximately one third of Victorian workplaces are rated as having either a ‘high-risk’ or ‘very high-risk’ psychosocial safety climate. The challenges posed by the COVID-19 pandemic have only served to heighten these risks.

Managing mental health in the workplace continues to  be challenging for employers for a range of reasons, not least because mental health conditions are less ‘visible’ than physical conditions. Further, the impacts of poor workplace mental health in the workplace are substantial and widespread, and include low employee engagement, absenteeism and employee turnover. The Productivity Commission in 2020 estimated that mental health conditions cost Australian employers up to $17 billion every year. [1]

As a result, WorkSafe has developed proposed changes to the Victorian Occupational Health and Safety Regulations (Proposed Regulations). Public consultation regarding the Proposed Regulations closed in March 2022, and the feedback received is now being considered by WorkSafe. Subject to WorkSafe’s review of this feedback, it is expected that the Proposed Regulations will be enacted into law by the Victorian Government from 1 July 2022.

Given the Proposed Regulations are likely to become law in the short term, it is important for employers to be aware of the new obligations imposed by the Proposed Regulations which we discuss further below.

Proposed Regulations

The Proposed Regulations impose three separate obligations on employers to, as far is reasonably practicable:

1. Identify psychosocial hazards;
2. Eliminate any risk associated with a psychosocial hazard, by:
   1. altering the management of work, plant, systems of work, work design or the workplace environment; or
   2. using information, instruction or training; or
   3. a combination of these measures; and
3. Review and, if necessary, revise any measures implemented to control risks associated with any psychosocial hazard.

Examples of some of these psychosocial hazards may include bullying, sexual harassment, aggression or violence, exposure to traumatic events or content, high job demands, low job demands, low job control, poor support, poor organisational justice, low role clarity, poor environmental conditions, remote or isolated work, poor organisational change management, low recognition and reward, and poor workplace relationships.

Further, employers with over 50 employees will be required to report to WorkSafe Victoria every six months detailing reportable psychosocial complaints. It is important to note that this requirement extends to both independent contractors engaged by the employer and any employees of the independent contractor.

Prevention Plans

Under the Proposed Regulations, when an employer has identified a serious psychosocial hazard, they must also prepare a written prevention plan to reduce the risk that the hazard poses and produce the plan on request. The types of psychosocial hazards that employers will be required to create a prevention plan to reduce the risk of, include:

1. Aggression or violence;
2. Bullying;
3. Exposure to traumatic content or events;
4. High job demands;
5. Sexual harassment.

We will provide further updates once the Proposed Regulations have come into effect. For more information regarding the Proposed Regulations and what they mean for you and the operation of your workplace, HR Legal can be of assistance.

In addition, HR Legal will be delivering a webinar with Tanya Heany-Voogt, Mentally Healthy Workplaces Expert & Change Facilitator, regarding the Proposed Regulations at 12pm on Thursday 16 June 2022. Click here for further information.

[1] Productivity Commission, Mental Health Productivity Commission Inquiry Report, (Inquiry No 95, 30 June 2020) 2.