“Neglected”: Government to consider improved mental-health protections in WH&S laws

Regulations which would beef up the compliance regime for worker mental health are being considered by the federal government after a review into model Work Health and Safety (WH&S) laws found the current framework was inadequate.

Marie Boland’s review into model WH&S laws was released earlier this week, making 34 recommendations for enhancing the legal framework around worker health and safety.

Broadly, Boland advised the government to make WH&S laws easier to navigate for employers and workers, while also recommending the introduction of a new industrial manslaughter offence for gross negligence causing death.

But worker mental health also took centre stage, with Boland recognising psychological health as one of the “key issues” raised in consultation with employers, unions and workers.

“I found that there is a general acceptance that the definition of ‘health’ in the model WHS Act explicitly includes psychological health,” Boland said in her report.

“However, I also found that there is a widespread view that psychological health is neglected in the model WHS Regulations and Codes.”

“The feedback from small businesses in particular was that they wanted more prescription and practical guidance to help them identify and manage psychosocial risks and hazards,” she said.

While there is a “primary duty of care” which covers mental health under the model WH&S act, Boland said a new framework is needed specifically to address psychological issues.

Boland was not prescriptive about what form additional mental health regulations should take, throwing the ball to government, which is due to report back on her findings later this year.

Catherine Dunlop, WH&S law specialist and partner at Maddocks, says the prospect of additional mental health provisions in law is a positive step

“It’s an area where more regulation could help,” Dunlop tells SmartCompany.

“It sits with notions about the future of work, and a piece missing from the discussion about psycho-social health is job design.

Dunlop says there hasn’t been enough discussion about the mental health implications of the way modern businesses are designing roles for workers, many of which are in new areas which aren’t well understood from a psychological welfare perspective.

This issue reared its head in the US earlier this week when The Verge published an investigation into what it’s like to work as a content moderator for Facebook.

Workers are reportedly resorting to smoking cannabis and having in-office sex as a coping mechanism for the “PTSD-like symptoms” arising from moderating extreme content on the platform.

Boland said while hazards like bullying and harassment have been a focus of WH&S regulation in recent years, this has led to a lack of understanding about broader organisational culture problems.

“This has too often led to the individualisation of these complaints, their diversion into grievance processes and the removal of the original basis for the complaint from any assessment of the broader WHS organisational safety culture,” she said.

Mental health claims currently represent about 6% of worker compensation claims, but typically lead to 17 weeks of leave each year, compared with 5.8 weeks for all other serious claims, according to Safe Work Australia research from 2017.

“Workplace psychological injuries place a personal and financial cost on workers, businesses and the broader community,” Boland said.

“There were persistent calls throughout the consultation process for a specific model WHS Regulation or a model Code to address psychosocial risks and hazards in the workplace.”

Since Boland began her review, Safe Work Australia has published a new national guidance report diving into work-related psychological health and safety.

The 40-page report sets out the obligations workers and employers have to one another under the current framework and provides advice about how to implement programs.

It explains employers must keep a record of all workplace injuries and maintain workers compo insurance, but doesn’t contain any specific mental-health provisions.

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