Employment & Safety Update – 28 July 2021

Managing Psychosocial risks in the workplace: NSW introduces a Code of Practice and Kozarov v State of Victoria

Key message

Risks to psychosocial health and safety are a focus for WHS regulators. The introduction of a mandatory Code of Practice in NSW, and the upcoming High Court case of Kozarov v State of Victoria are a reminder that all employers need to ensure that policies and procedures address and minimise such risks.

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. Under the uniform WHS legislation which applies in Tasmania, a PCBU must eliminate or minimise risks to the health and safety of workers so far as reasonably practicable.

Ultimately, psychosocial risks in the workplace needs to be treated as seriously as physical risks. Employers should undertake a detailed hazard identification and risk assessment, consult with workers to find out what hazards exist, and implement appropriate controls to eliminate or minimise the risk to health and safety. “Office based” employers should pay particular attention, as psychosocial hazards may be a predominant risk to health and safety in such workplaces.

SafeWork NSW introduces Code of Practice for psychosocial hazards

SafeWork NSW has recently introduced a new code of practice for the management of hazards to the psychosocial health and safety of workers (Code of Practice). You can access a copy of the code of practice here.

The Code of Practice identifies common psychosocial hazards including “overt” hazards like bullying, harassment and exposure to dangerous worksites. It also identifies less obvious hazards such as work overload, poor conflict management and poor disciplinary processes.

The Code of Practice provides key methods that PCBUs can implement to minimise risks to the psychological health and safety of workers. Examples include providing training and information to workers on the importance of psychosocial health; implementing procedures to provide workers with support and clarity on roles and responsibilities; and ensuring that procedures are implemented and followed in respect of performance management and discipline.

The Code of Practice is now admissible in evidence in proceedings in NSW as evidence of what is “reasonably practicable” to manage such risks. It is only a matter of time before similar codes are introduced in Tasmania. The Code of Practice should be considered “best practice” for all employers.

High Court to examine scope of employers’ common law duty in respect of psychosocial risks

The High Court will soon examine the scope of an employers’ common law duty to protect workers from psychosocial injury when it hears Kozarov v State of Victoria later this year.

The case concerns a lawyer employed by the Office of the Director of Public Prosecutions who successfully sued the State of Victoria alleging personal injury arising out of exposure to traumatic material in the course of her employment. At trial, Ms Kozarov was awarded $435,000 in damages. The State of Victoria appealed.

The Victorian Court of Appeal upheld the appeal and found that Ms Kazarov had not proved that her injury was caused by the State of Victoria’s breach of a duty of care. Central to the decision was that Ms Kazarov had indicated that she wanted to keep working in the environment where she was exposed to the traumatic material. Importantly, there was medical evidence that this desire was consistent with the psychological injury suffered in the course of her employment.

Argument in the High Court is expected to focus on whether the scope of an employer’s duty can be subject to the wishes of the employee who will be affected by the work. Certainly, the uniform WHS legislation places the obligation to provide safe systems of work squarely on the PCBU at all times – it is not a defence to a charge under the WHS legislation that an employee “wanted” to do something in an unsafe manner. Watch this space for the outcome later this year.

More information

If you have any queries or would like further information regarding this update, please contact:

Joe Mullavey
Principal
M: 0416 794 061
E: jmullavey@pageseager.com.au

Audrey Clarkson
Lawyer
T: (03) 6235 5125
E: aclarkson@pageseager.com.au

Published: 28 July 2021

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