Mental health and the WHS Act 2020

The Work Health and Safety Act 2020 (WHS Act) has expanded the definition of the word ‘health’ to include both physical and psychological health.

According to Mills Oakley WHS Special Counsel Daniel Hill, this significant change was influenced by several sources.

“The public’s increasing unacceptability of occupational injury or illness has been evident for quite some time now and, more formally, recommendations were made in the 2018 Boland report – a review of the model work health and safety laws across Australia,” he said.

“Formal recommendations were made over the development of additional regulations on how to identify psychosocial risks in the workplace and the appropriate control measures to manage those risks. 

“We can see an adoption of this principle through the WHS Act, with ‘health’ being defined as referring to both physical and psychological harm.

“Put simply, there is a duty of care owed by the person conducting a business or undertaking (PCBU) to view psychosocial factors and resultant individual psychological health as key determinants in configuring an organisations safety, health and wellbeing strategy.”

Addressing the broader issue

Australia Post Chief Mental Health Officer and FBG Group Chief Executive Officer Simon Brown-Greaves said the change in legislation reflected what was already happening in business communities and employment environments.

“The broader rhetoric and language around safety has been incorporating psychological safety now for some time and, in fact, this reflects a pretty obvious trend in the broader community about awareness of mental health and mental illness,” he said.

“These are really important conversations that are being had in most workplaces and it has led us to recognise that an effective and all-encompassing legislation around workplace injuries really needs to include mental health and wellbeing.

“It’s long been known that a whole range of what appears to be relatively physically originated injuries end up having psychological correlates, psychological overlay or psychological consequences, so taking injured workers’ wellbeing and mental health into account just makes good sense.”

A clear path forward

Mr Brown-Greaves said while many businesses were already building systems around psychological safety, the legislation helped to provide impetus and a clear description of consequences for negligence.

“It builds around it a system of checks and balances and compliance,” he said.

“The legislation acknowledges the legitimacy and the reality of mental health as a component of people’s safety of work.”

For businesses incorporating the legislative change, Mr Hill recommended to start with a recognition and acceptance that people bring their whole selves to work and not just the nine-to-five version.

“Business needs to pay specific attention to aspects of work and work situations, which can or may lead to psychological or physical harm, for example the way tasks or jobs are designed, organised, managed or supervised,” he said.

“This includes tasks where there are inherent psychosocial hazards and risks like an acceptance of poorly maintained equipment, poor ongoing work conditions, duties in a physically hazardous environments, social factors at work and the related dynamics of work relationships and interactions.”

Mitigating risk as best as possible

Mr Brown-Greaves said while a system of work around psychological health should focus on preventing risk manifesting, not all risks were removable.

“For example, if I’m a police officer, certain things will impact my psychological health and wellbeing that are part of the job, so we have to understand that and then mitigate where we can,” he said.

“Where you can’t mitigate, a good system of work then is evaluating how to prepare your people to manage and respond to that risk.

“The third thing that an organisation can, and should, do is when the risk happens, consider whether there are immediate supports in place that are able to respond.”

Self-reflection is key

Mr Hill said the best organisations he had developed approaches for were willing to put their hand up and concede they had an issue they needed to fix.

“This takes honesty, self-reflection and a fair dose of humility, combined with a level of organisational maturity,” he said.

“There must be a demonstrable willingness to engage the workforce in open and transparent dialogue over time.

“A solid medium in which to do this is via a well-run WHS committee that has a strong charter and constitution development.

“This allows for regular bottom-up inputs with top-down inclusions and caveats, which enable issues to be improved consistently over time and eventually end up as a pillar of an organisation’s safety, health and wellbeing strategy.”

Changing the landscape

Mr Hill said the legislation was already changing the workplace landscape.

“We have already seen decisions from the High Court of Australia (Kozarov 2021), where the premise as to reasonable efforts in addressing employee psychosocial welfare has quite clearly been stated,” he said.

“There is recognition from business that it is a real issue and workers do actively form attitudes and belief systems from their life experience, which is inclusive of time at work. 

“Further, these formed attitudes and belief systems constantly inform our own value set over time, which ultimately drives our behaviours and resultant work cultures and performance.

“The challenges are that the risks and injuries are less obvious and visible, and the way individuals respond to a psychosocial hazard can be vastly varied, difficult to predict and may even change over time.

“However, businesses can address this by ensuring that it is a part of their health, safety and wellbeing strategy, which has clearly designed longitudinal metrics.”

Staying ahead

Mr Brown-Greaves said it was not about keeping up with the legislation, but staying ahead of the legislation.

“If your people are feeling cared for and supported, that, in turn, helps keep your people healthy and at work, so it just makes good business sense,” he said.

“For your average person, who loves their job and understands that there are risks, we’re much more comfortable taking that risk if we’re doing so in partnership with our own employer.

“I’m seeing heaps more collaboration between employers and their workforces because, after all, who knows your job better than you do?” 

Other articles in the series:

Changing the face of health and safety in Western Australia
WHS Act 2020 - Key terms and definitions
What is a 'person conducting a business or undertaking?
How to prepare for the WHS Act 2020

Where to from here?

The Workplace Health and Safety Representatives Training Course provides you with the necessary skills required to meet the WHS Act legislation.