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Psychological Health - An Update

Following an independent review of Work Health and Safety (WHS) law undertaken by Marie Boland that was conducted in 2018, a meeting of the Ministers responsible for WHS from the Commonwealth and each state and territory met to finalise the response in May 2021. The final report that followed the independent review made 34 recommendations in total.

The following link takes you to the table outlining the agreed response to each of the recommendations made.

https://www.ag.gov.au/sites/default/files/2021-05/Agreed-response-to-the-Review-of-the-Model-WHS-Laws_0.pdf

Perhaps the most significant recommendations that Ministers have agreed to implement is recommendation 2 ''Make regulations dealing with psychological health. Amend the model WHS Regulations to deal with how to identify the psychosocial risks associated with psychological injury and the appropriate control measures to manage those risks.''

The significance in elevating psychological health from a general duty (to provide and maintain a working environment that is safe and without risks to health so far as is reasonably practicable) to a specific prescribed duty (regulation) that explains how an employer must undertake the new duty should not be underestimated. There is no equivalent regulation in any other health and safety law in other countries, so it is an important step. It is highly likely that any new prescriptive regulation would be supported by an approved code of practice on managing psychological health and it would be this code that should have the most impact. It is all about the detail!

A code of practice can assist anyone who has a duty of care in the circumstances described in the code of practice. Following an approved code of practice will assist the duty holder to achieve compliance with the health and safety duties in the WHS Act and WHS Regulations, in relation to the subject matter of the code of practice.

On the international stage there is a new international standard that is currently in draft stage but is due to be released before the end of June 2021. ISO 45003 Occupational health and safety management Psychological health and safety at work: managing psychosocial risks -  Guidelines

This new standard will provide guidance on the management of psychosocial risks at work, as part of an occupational health and safety (OH&S) management system. It is intended to be used together with ISO 45001 Occupational health and safety management which contains requirements and guidance on planning, implementing, reviewing, evaluating and improving an OH&S management system. ISO 45001 highlights that the organization is responsible for the OH&S of workers and others who can be affected by its activities. This responsibility includes promoting and protecting their physical and mental health.

At a national level both NSW and Queensland have been busy drafting their own codes. The NSW draft is available here https://www.haveyoursay.nsw.gov.au/draft-code-managing-psychological-health

Queensland's latest position on this subject is published here https://www.qrmc.com.au/mental-health-indicators-hazards-and-risks/

Neither of these proposed codes will have insight into proposed changes to WHS Regulations but something is better than nothing. With psychological claims likely to increase due to COVID 19 and other factors It can only be hoped that the proposed changes to law, supporting codes and programs from the various regulators are actioned in a swift manner. It will be interesting to see how Victoria responds to the changes. Not being subject to WHS legislation is no excuse and OHS legislation has been amended recently for topics such as silica dust and COVID 19 reporting. We are watching

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