What is a palatable summary of the Code and employers' responsibilities?
The Managing the Risk of Psychosocial Hazards at Work Code of Practice 2022 (the Code) puts an immediate and pro-active obligation on businesses to identify all mental health risks in their workplace and to categorise their potential severity / impact.
Once the mental health risks have been identified and classified, the Code requires it to be eliminated so far as is reasonably practicable, and where elimination is not possible to minimise the mental health risks, as far as is reasonably practicable.
The Code applies to businesses and company directors, senior managers and executives (Officers). The Code states that an Officer’s duty is immediate, positive and proactive, and is owed by each individual Officer of a business.
If an issue arises and the Code has not been complied with, the business and its Officers can be held liable. This looks like personal liability for Officers in the form of hefty fines, and in the worst-case scenario imprisonment. In our experience the Code is often the first reference in a legal dispute where the employee is legally represented, due to its broad nature and application.
Reasonably practicable means that which is, or was at a particular time, reasonably able to be done to ensure mental health safety. The question of what is reasonably practicable is determined both objectively and subjectively, and not by reference to a business or Officer’s capacity to pay, access resources or other individual circumstances. The Code expressly states that a business cannot expose people o a lower level of protection simply because it is in a lesser financial position than another business facing the same risks or in similar circumstances.
The Code is broad and lists many pre-determined mental health risks, including:
Management and Leadership: Includes issues like micromanagement, overly critical feedback, lack of support or inadequate resources and training.
Role and Job Specific: High pressure roles, stressful environments, demanding work hours, high stakes work or emotionally demanding work.
Workplace Culture: Instances of conflict, exclusion, gossip, cliques, bullying and harassment.
Environmental Conditions: Remote or isolated work, high risk tools or substances, work that exposes employees to emotionally charged or traumatic events.
Ad-Hoc Events: Employees with pre-existing mental health conditions that are identified, burn-out, organisational change or redundancy.
Am I responsible for my employees Mental Health?
The Code does not require businesses to manage personal mental health issues and stressors (such as pre-existing mental health conditions or circumstances of domestic violence), however where a worker has informed the business or the business otherwise knows (or ought to know) about the pre-existing circumstances, an obligation arises to ensure the workplace does not create further harm, so far as is reasonably practicable.
In other words, where a business or its Officers know about an employee’s anxiety, depression or other mental health conditions there is an immediate, positive and proactive obligation to demonstrate that the risk has been identified, categorised and managed in accordance with the Code. Should the employee in these circumstances make a Workcover claim (or bring a claim against the business), if no pro-active process can be deomonstrated, the consequences could be dire.
Am I responsible for my employees who suffer from burn-out?
Where an employee has informed the business of their burn-out or associated symptoms, or where the business ought to otherwise have known (i.e. through having the appropriate systems, processes, procedures and educational tools available), the business and its Officers could well be liable if they did not follow the Code by identifying, eliminating or managing the risk effectively.
For example, where it is apparent an employee is low in mood, exhausted and overwhelmed, the business and its Officers are responsible to take pro-active steps. The steps will depend on the identification and classification of the risk based on the specific circumstances, but could include a pro-active conversation with the employee around taking time off, changing the role or elements of the role for the time being, provision of additional support or systems. If burn-out or associated symptoms are present and a business or its Officers ignore it, rejects leave requests and continues to pile on high stress and pressure work as per normal, the business and those Officers could well be liable in any Workcover claim, other claim or prosecution.
What documentation do I need to demonstrate compliance with the Code?
There is no one size fits all, but at a bare minimum any business will need:
Register of risk assessment (i.e. a document that shows you have gone through the process of considering all potential mental health risks, some of which is stipulated by the Code and mentioned earlier in the Article).
Hierarchy of risks (i.e. a document that shows you have classified the level of risk for each identified risk, in accordance with the criteria prescribed by the Code).
Risk controls (i.e. a document that shows you have considered whether the risk can be eliminated, and where elimination is not possible the ways in which you identified the risk can be controlled and mitigated).
Implementation of the risk elimination or controls (i.e. policies, procedures, file notes, issue resolution records, training records etc.);
Master Mental Health Policy (i.e. a document where you communicate the obligations of the business, its Officers and the employees with respect to mental health risks).
A Complaints Policy and Procedure (i.e. a document where you communicate to employees their right to make a complaint where they identify risk, including a mental health risk and the process that will be followed).
A Bullying and Harassment Policy (i.e. a document where you define what harassment and bullying is, prohibit it from your workplace and provide a process for raising and dealing with these).
What psychosocial risk assessment templates exists?
The government has published a number of risk assessment templates online, but without legal, human resources and business operational experience combined they are largely impractical and ineffective.
Combining our decade of legal, employee relations and SMB experience, we have put together a risk assessment tool that allows businesses and Officers to identify the areas of mental health risks in their workplaces, and to categorise these by a default rating system with respect to severity (using the criteria stipulated by the Code). Once the risk has been identified and classified, our tool provides pre-determined and proven strategies and procedures to either eliminate or effectively manage the risks.
What industries are susceptible to mental health risks?
Every business is required to proactively assess mental health risks present in their workplace, regardless of the outcome. In other words, even if the assessment identifies no mental health risks exist, the Code requires you to have undergone the process of assessment.
It is unlikely that any business has no mental health risks present, particularly considering the breadth of the Code and its definitions.
Industries that are often considered to have specific challenges with respect to mental health risks include:
Healthcare
Emergency Services
Education
Social Services
Construction
Mining and Resources
Legal
Financial Services and Banking
Human Resources
Creative Industries
Transport and Logistics
Retail and Hospitality
How do we keep abreast of updates like these?
Staying informed about the Code is crucial. Sharné Consulting offers updates and insights on how to implement these guidelines effectively through our website and social media channels.
We highly recommend our 'Become Code Compliant' one-day intensive program for a comprehensive understanding and to ensure compliance with the Code.
Our Become Code Compliant program allows you to participate in a collective one-day interactive program where we will:
provide essential education and awareness on what the Code entails (we keep this short and sweet, as the program focusses on becoming compliant and is not theory based)
provide template legal policies, risk management frameworks and mitigation procedures to cover off on critical aspects of the Code
facilitate the tailoring of the template legal policies, frameworks and mitigation procedures, for each business in attendance
provide your business with tools to take back to the office to use and ensure future compliance
provide your business with a road-map of what additional steps it might need to take, to ensure compliance
work through commonly faced hazards and provide practical solutions that any business can implement immediately to manage these