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From 1 April 2023, Queensland’s new work health and safety Code of Practice, ‘Managing the risk of psychosocial hazards at work’ (Code) requires workplaces to eliminate or minimise psychosocial risks – failure to do so could result in companies, directors and even law firms facing prosecution.
It is already well known that workplaces have an obligation to protect the health and safety of workers in accordance with Queensland’s Work Health and Safety Act 2011 (WHS Act), the Work Health and Safety Regulation 2011 (WHS Regulation) and the codes of practice.
This article, however, explores the recent developments of this legal framework with respect to managing the risk of exposure to psychosocial hazards.
In addition to the introduction of the Code, the WHS Regulation will also be updated to include psychosocial hazard regulations providing more specific detail about how duties under the WHS Act must be performed.
By way of a brief refresher, in 2011, Australian statutory agency Safe Work Australia developed the Model Work Health and Safety Act and Regulations (model WHS laws) with a view to be implemented across Australia.[1] Since 2011, the model WHS laws have been implemented in all jurisdictions except Victoria, with some jurisdictions making minor variations to make sure the legislation is consistent with their relevant drafting protocols and other laws and processes.
In 2018 to 2019, there was a review of the model WHS laws (Boland review), which identified a failure to provide specific requirements or examples of how employers should comply with their WHS duties in respect of psychosocial hazards at work.[2]
In 2022, Safe Work Australia published the Model Code in relation to managing psychosocial hazards at work in an effort to provide practical guidance on how to comply with the duties imposed by the model WHS laws.[3] Specifically, the Model Code encourages workplaces to adopt risk management processes that target the identification, management, and control of workplace psychosocial hazards.
The Queensland WHS laws, however, go one step further and require workplaces to comply with Codes of Practice approved by the State.[4] This means that, when the Code commences in Queensland, it will be legally binding on all persons conducting a business and undertaking (PCBU).
So, what is a psychosocial hazard, and what should employers, particularly Queensland law firms, do to minimise them in the workplace?
Psychosocial hazards include a broad range of factors relating to the workplace and employment that can impact a worker’s psychological and physical health and safety. The Code defines a psychological hazard as a hazard that arises from, or relates to:[5]
(a) the design or management of work
(b) a work environment
(c) plant at a workplace
(d) workplace interactions and behaviours,
and may cause psychological harm, whether or not the hazard may also cause physical harm.
Common psychosocial hazards that arise from, or are related to, work may include:[6]
Some psychosocial hazards may have the potential to cause harm on their own, such as remote or isolated work or exposure to traumatic events. For example, lawyers specialising in areas of law that involve historical child sexual abuse, child protection, domestic and family violence, immigration or crime may be at risk of exposure to traumatic events. This may lead to heightened emotions referred to as ‘secondary trauma’ or ‘vicarious trauma’ from undertaking such emotionally demanding work.[7]
However, in most cases, individuals will be impacted by a combination of psychosocial hazards which, when combined, may cause harm to their health and safety. For example, a junior lawyer with excessive job demands, low levels of autonomy, poor support and inadequate recognition is also at risk of psychosocial harm.
Exposure to psychosocial hazards can contribute to stress, which can lead to psychological harm or injuries and physical health issues. Examples of psychological harm caused by these psychosocial hazards include:[8]
Physical harm caused by psychosocial hazards can include:[9]
The legal profession is an arduous one, and lawyers are often required to work in difficult conditions juggling demanding clients, consistently pressing deadlines, long work hours, managing large file loads and, of course, billable hours. It is therefore no wonder many lawyers experience chronic psychosocial stress, known as ‘burnout’ at some point in their career.[10]
By the inherent nature of the legal profession, lawyers are at a high risk of being exposed to psychosocial hazards in the workplace, and therefore psychosocial harm.
Management of psychosocial hazards should take a similar approach to other health and safety risks.
The Code’s suggested risk management process involves four steps:[11]
1. Identify how, when, and where psychosocial hazards may occur.
2. Assess the likelihood a worker may be exposed to a psychosocial hazard.
3. Implement appropriate controls to effectively manage the risk.
4. Monitor and review the implementation and effectiveness of controls.
The necessary controls for regulating psychosocial risks in the workplace differ according to the type of organisation and the nature of the work being undertaken. The same goes for differing types of legal practice. As mentioned above, some areas of legal practice have a higher exposure to trauma than others (family, criminal law, immigration, child protection, domestic and family violence and personal injuries).
Some of the firms that provide these legal services are boutique or smaller firms and may not have a dedicated risk management system in place. It is therefore imperative that these smaller firms implement specialised controls to effectively manage the risks associated with the nature of the services they provide.
This is not to say, however, that national, international and top-tier corporate and commercial law firms are without risk and automatically have adequate controls in place. While most larger firms do offer employee assistance programs and well-being initiatives, simply offering these is not enough to ensure the psychological and physical health and safety of employees.
To ensure all firms are managing the risk of psychosocial hazards, firms should conduct an updated and dedicated risk management process using the above four-step process. Although risk management requires planning and is an ongoing process, considering risks early prevents costly changes later and allows for more effective control measures to be used, resulting in less harm to workers.
All steps in the process must be supported by workplace consultation, in accordance with the duties in the WHS Act.[12] If firms aren’t familiar with these duties, a helpful guide is included in the Queensland Code of Practice 2021: ‘Work health and safety consultation, cooperation and coordination’.[13]
More details about the risk management process can be found in the Code at section 3.
The following is a non-exhaustive list of suggestions of control measures for law firms to implement. It is important to ensure a particular control measure will work before relying on it. You may need to test control measures, provide information, training or instruction to workers and supervise work to ensure control measures are effective. Firms should:
Law firms should already have risk management systems in place to manage current WHS hazards. However, it is encouraged that firms review their current policies and practices against the Code to ensure they are adequately managing psychosocial hazards in the workplace.
This will not only prevent directors and partners of law firms being held criminally liable for failing to address psychosocial hazards in the workplace when the Code comes into effect on 1 April 2023, but should also in turn promote a positive workplace for lawyers to thrive.
If topics in this article have raised issues for you, counselling and support options are available via the following contacts:
Julia Braddick, Associate, Cooper Grace Ward
Belinda Winter, Partner, Cooper Grace Ward, Qld Wellbeing Working Group
[1] Model Work Health and Safety Bill and Model Work Health and Safety Regulations.
[2] Review of the Model Work Health and Safety laws Final report, December 2018 (Boland review).
[3] Safe Work Australia Model Code of Practice: Managing psychosocial hazards at work.
[4] WHS Act s 26A.
[5] WHS Regulation s 55A.
[6] See the Code s 3.1.1 for detailed examples of common psychosocial hazards.
[7] Maureen Ambrose, Marshall Schminke and Scott Reynolds, ‘Behavioral Ethics: New Frontiers’ (2014) 123(2) Organizational Behavior and Human Decision Processes 77.
[8] Safe Work Australia Model Code of Practice: Managing psychosocial hazards at work s 1.1.
[9] Safe Work Australia Model Code of Practice: Managing psychosocial hazards at work s 1.1.
[10] Wilmar Schaufeli, Michael Leiter and Christina Maslach, ‘Burnout: 35 years of research and practice’ (2009) 14(3) Career Development International 204.
[11] The Code s 3.
[12] WHS Act ss 47, 48 and 49.
[13] Note: Given the Model Code can be referred to in proceedings as a standard, employers should ensure they record their ongoing risk management process including records of consultations with workers.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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