Psychosocial risk now covered under new WHS Regulations in NSW

The NSW Government has implemented the Work Health and Safety Amendment Regulation 2022 (Regulation), bringing into effect one of the key recommendations made by the 2019 Boland Review of the National Model WHS laws – to expressly address how duty holders should deal with risks to psychological health at work, including setting out the matters that must be considered in developing control measures.  This stems from a finding of the Review that psychosocial health had been ‘neglected’ in WHS regulations and codes of practice.

As with the Model WHS Regulations developed by Safe Work Australia, the NSW Regulation provides clarity on the meaning of “psychosocial hazard”, “psychosocial risk” and the range of matters duty holders must now consider in determining which control measures to implement.

What is the purpose of the new Regulation?

The new Regulation implements recent changes to the national Model WHS Regulations, including those which expressly require a person conducting a business or undertaking (PCBU) to manage psychosocial risks in the workplace. These changes are among several recommendations that flow from the Boland Review released in December 2019. It is hoped that these changes will improve how businesses identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.

Below are some of the key elements:

How should a PCBU determine which controls to implement?

When determining which controls to implement, the Regulation states that PCBUs must have regard to all relevant matters, including:

• the duration, frequency and severity of the exposure of workers and others to psychosocial hazards,
• how the hazards might interact or combine,
• the design of work, including job demands and tasks,
• systems of work, including how work is managed, organised and supported,
• the workplace's design, layout and environmental conditions, including a safe means of entering/exiting the workplace and facilities for the welfare of workers,
• the design, layout and conditions of workers' accommodation,
• the workplace's plant, substances and structures,
• workplace interactions or behaviours; and
• the information, training, instruction and supervision provided to workers.

Next steps

NSW continues to be an early adopter of the changes agreed by the WHS ministers of the States and Territories following the Boland Review.  Since May 2021, the Code of Practice: Managing Psychosocial Hazards at Work has been in operation in NSW. A code of practice is intended to provide practical guidance on how to achieve compliance with the WHS Act, usually in relation to certain types of safety risks. A code of practice can be relied on in a safety prosecution as evidence of what is known about a safety risk and ways to eliminate or reduce it.

By comparison, the Regulations above impose positive legal obligations on duty holders that must be complied with.  The making of these Regulations in NSW therefore signifies another important development in the legal framework concerning the management of psychosocial health risks. Although much of the Regulation itself commenced on 16 September, the specific changes outlined in this article commence on 1 October 2022.

You can find the Regulation here.