SPOTLIGHT ON PSYCHOSOCIAL HEALTH – PART 2
The issue of psychosocial hazards in the workplace has been around for some time now, with the first work health and safety regulations addressing such issues introduced in New South Wales in July 2022, and soon followed by Western Australia in December that same year. There have been numerous Codes of Practice implemented across Australia covering this topic. By way of example, Western Australia has no less than four separate Codes of Practice that cover topics relevant to psychosocial hazards.
SafeWork NSW announced in February 2024 that it will step up its enforcement activities against workplace psychosocial hazards, like excessive workloads and with more specialist inspectors. This came off the back of recommendations in the Independent Review of SafeWork NSW by the Hon. Robert McDougall KC. This also recommended that SafeWork be able to access claims data held by workers’ compensation insurers for the purpose of identifying at-risk industries, PCBUs and workers.
Under health and safety laws across Australia, regulators and their inspectors have wide ranging powers to require the production of documents, information, and answers to questions (albeit with some minor nuances between the States and Territories). These powers are in some respects broader than those that may be exercised by the Police.
WHS inspectors can:
- Enter a workplace without a search warrant and:
- inspect, examine, and make inquiries at premises;
- inspect and examine anything (including a document);
- bring and use any equipment or materials they may need;
- take measurements, conduct tests, and make sketches or recordings (for example photographs, films, audio, and video); and
- take and remove samples for analysis, examination, or testing a sample of any substance or thing (save for Victoria where examination or testing is reasonably necessary and cannot be reasonably conducted on site);
- require a person to tell the inspector who has custody of, or access to, a document;
- require a person who has custody of, or access to, a document to produce that document to the inspector while they are on the premises or within a specified period;
- require a person at the workplace to submit to an interview at a reasonable time and place, and answer any questions put by the inspector during the interview, which can include a trip to the regulator’s offices.
Unlike interviews with the Police, a person cannot refuse to participate or answer any questions in an interview required by an Inspector on the grounds that answering a question may be self-incriminating.
An investigation into breaches of the regulations covering psychosocial hazards will often be triggered around complaints of bullying, harassment, discrimination, and/or fatigue from excessive hours worked. The employee may have gone on stress leave. In our experience, regulators come looking for the following types of information in these investigations:
- Investigation reports and statements within the possession of the employer (which have generally not been produced with the protection of legal professional privilege);
- Hazard or incident report forms, and follow up action;
- Psychological hazard risk assessments;
- Policies and procedures relevant to the alleged hazards and risks being investigated (i.e. work health and safety framework, fatigue management, code of conduct, bullying and harassment, grievance procedures, disciplinary procedures, induction, etc);
- Workers’ personnel files including training history, roles and responsibilities, job descriptions, medical certificates, medical reports and timesheets;
- Correspondence between the worker, management and any other relevant person (sometimes over a lengthy period such as 12 months or more), including emails, text messages and MS Teams chat logs;
- Minutes of meetings, including those of the Board;
- This can include information located in another State or Territory.
How can we help you?
We can help you:
- respond to notices and requests for information by regulators
- manage and review large amounts of documentation and assess legal privilege protection
- conduct workplace and safety investigations
- instruct and coordinate third party investigators and experts to conduct investigations
- instruct or coordinate legal compliance audits
- by advising on the conduct of investigations including any findings and potential disciplinary outcomes, exposure to legal risk including penalties and regulator engagement
- by acting in legal processes instituted by the regulator
Are you prepared if the regulator comes knocking?
Our experienced team help you prepare for when the regulator comes knocking. For more information on our workplace and safety investigations offering visit our webpage.
