Last week the Magistrates’ Court of Victoria fined Court Services Victoria $379,157, for what the Court heard was a “toxic workplace culture”. Staff had been exposed to psychosocial hazards over a three-year period, which ultimately contributed to the suicide of one worker and several other staff taking stress leave. Whilst we have not seen any criminal charges in Western Australia brought against a Person Conducting a Business or Undertaking (PCBU) for a failure to ensure the psychological health of workers, it is no doubt on the horizon.
With the introduction of the WHS legislation in Western Australia in March 2022, psychological health was specifically included in the definition of “health” under the Act. The State Government’s response to the ‘Enough is Enough’ report (September 2022) also set out the Government’s commitment to addressing sexual harassment against women in the FIFO industry.
Since then, WA has adopted model regulations around managing psychosocial hazards, which came into effect on 24 December 2022. At the time, WorkSafe WA publicly announced an initial approach of educating PCBU’s and Officers around how to comply with their duties to proactively identify and manage psychosocial risks in the workplace.
In the last 18 months WorkSafe WA has also published a wealth of guidance material including Codes of Practice on:
- Psychosocial Hazards in the Workplace;
- Violence and Aggression at Work;
- Workplace Behaviour; and
- Consultation, Cooperation and Coordination.
More recently, WorkSafe has implemented further recommendations arising from the ‘Enough is Enough report’, including a 24/7 helpline for WA mine-site workers as part of the ‘SPEAK UP, REPORT IT’ campaign and the ‘Respect in Mining Pilot’.
The WHS Act expressly provides that Codes of Practice are admissible as evidence as to whether or not a duty has been complied with. There is no doubt when WorkSafe moves from education to enforcement, these Codes of Practice and other guidance materials will be relied on as evidence to establish circumstances where a PCBU’s risk assessments were inadequate, consultation was insufficient, or suitable control measures have not been properly implemented.
The WorkSafe Commissioner and Inspectors have expansive statutory powers to require a PCBU provide information and documents. WorkSafe has recently made it clear that they are not afraid to lay charges if they believe a PCBU is not complying with such a request.
If you are concerned that your safe work procedures and documentation around managing the risk of psychosocial hazards in your workplace need updating, you should seek legal advice as soon as possible. This will assist in ensuring you are aware of your legal obligations and that your document management strategies are suitable if WorkSafe do decide to exercise their powers.
If WorkSafe (or an inspector) has a reasonable basis to believe that they should take enforcement action, they may issue improvement notices or prohibition notices, through to commencing a prosecution for a breach of the WHS Act or its regulations. If your business has an elected Health and Safety Representative (HSR), they also have the power to issue provisional improvement notices.
In all of these situations you should seek legal advice at the earliest opportunity. This is for many reasons, including that there may be a valid basis for challenging any notices issued to you.
Whilst we always prefer our clients to seek our advice on a proactive basis before WorkSafe become involved, if you do face regulatory or enforcement action, our experienced Workplace Relations and Safety Team are here to assist.