Employers' obligations to consult employees in relation to workplace safety is not a new concept. In Western Australia, this express requirement is set out in section 19(1)(c) of the Occupational Safety and Health Act 1984 (WA). Similar duties exist in the model Work Health and Safety Act 2011 and Victoria's Occupational Health and Safety Act 2004.
However, this duty of consultation appears to be expanding to encompass not just the traditional concept of consultation, but workplace culture and leadership. That is, meeting safety obligations now not only requires consulting employees (both on group and individual levels), but ensuring that the workplace has a good culture and good leadership. These are matters that have not traditionally been contemplated by legislation but are now appearing in guidance published by regulating authorities. These appear to have been introduced as a mechanism to identify and control the risks presented by psychosocial hazards in a workplace, which in itself is a developing area of safety law.
The inclusion of these matters in published guidance, particularly in Codes of Practice is significant in two respects:
- First, any published guidance made available by regulators in Australia will form part of the 'body of knowledge' which is used to determine what is reasonable and practicable in respect of hazard identification and risk management;
- Secondly, published Codes of Practice in particular carry evidentiary weight in safety proceedings. What this means is compliance with a Code of Practice may be evidence of compliance with safety obligations, while non-compliance (without a reasonable basis or alternative) will be evidence of a failure to comply with safety obligations.
Accordingly, the expansion of guidance to include matters of leadership and culture, including in the context of consultation, is potentially expanding the areas of operation in a workplace which may be considered in a safety investigation or prosecution. The impact of this is particularly significant in jurisdictions which have, or are introducing due diligence obligations on officers, and where individual or accessorial liability provisions exist for managers.
Take, for example, WA's Code of practice for mentally healthy workplaces for fly-in-fly-out workers in the resources and construction sectors (FIFO Code of Practice) which was introduced in April this year.
Part 3 of the FIFO Code of Practice provides that leadership and workplace culture are significant factors in respect of identifying and controlling psychosocial hazards in the workplace. Factors and indicia that WA Safety Regulators consider are demonstrative of good leadership and culture include:
- Leadership demonstrating a commitment to safety and positive organisational culture;
- Assigning appropriate resources;
- Visible leadership messaging to reduce the stigma around mental health;
- Positive actions to support leadership messaging, including leading by example;
- A work health and safety policy which includes mental health which is implemented and supported across the workplace;
- Ensuring managers have the knowledge, skills and support to manage psychosocial risks, positively influence workplace culture, and address inappropriate behaviours and interactions with integrity and credibility, including being willing to listen to workers;
- Managerial competencies including being respectful and responsible, managing and communicating about existing and future work, modelling behaviours, having difficult conversations and resolving conflict.
The FIFO Code of Practice then suggests that those with management and supervisory responsibility should be trained to achieve the above competencies and to effectively prevent and manage harm from psychosocial risks. This training should extend to intervention and rehabilitation as well as preventative strategies, including identifying psychosocial risk factors, understanding the workplace risk profile and being able to apply good work design principles.
In addition to this, Part 8 of the FIFO Code of Practice sets out the expectations around consultation, including that it should be proactive and integrated. When this is considered with the above obligations and requirements of good leadership and culture, the effect is a requirement for employers to consult:
- With their employees (as a group) or via its safety and health representatives in respect of the identification of psychosocial hazards and how these ought to be controlled. This includes proactively raising and discussing matters with an employee group regarding matters such as workload, change and how work is performed; and
- With individual employees in circumstances where there are concerns about, or issues which may impact the individual's wellbeing and mental health.
While the first requirement is well known, in terms of mental health, the second issue is likely to be much more challenging given the non-physical and often complex nature of mental health issues.
There is no question that the expectation on managers, particularly those in the mining and construction sectors has never been more onerous in respect of safety obligations. This is particularly so given that employers are required to take its employees 'as they are' (which may include existing mental health conditions, or predispositions towards mental health issues) and leaders are expected to be trained in identification, intervention, rehabilitation of mental health issues.
While it remains unknown how the new FIFO Code of Practice will influence investigations or prosecutions where psychosocial risks have not been managed in a workplace, employers, and managers in particular should be aware that their competencies, training and ability to engage proactively and constructively with their workers regarding wellbeing is clearly contemplated as a safety matter by regulators.
Going forward for psychosocial hazards in the workforce
In light of the move towards treating leadership, culture and consultation in regard to worker mental health as a safety issue, managers and employers should review their current processes and ask:
- Does the health and safety policy clearly consider mental health?
- Do our leaders and managers understand the role of leadership and consultation in ensuring good safety outcomes?
- Are our leadership competencies consistent with applicable codes of practice and other regulator guidance materials?
- Are our managers equipped and supported to identify, manage and help resolve wellbeing issues in the workplace, including having difficult conversations?
- What steps are in place to measure, monitor and improve workplace culture, trust and consultation?
The issue of psychosocial hazards in the workforce is one we recommend employers consider closely within the context of their business and their individual risk management procedures and safety framework. As a starting point, employers should be open to sitting down with work groups and any health and safety representatives to hold discussions about how, as a collective, the business is going to address psychosocial hazards in the workplace.
If you would like additional guidance or wish to discuss this article, please contact a member of our Workplace team.
