Under work health and safety (WHS) laws, employers must eliminate or reduce psychological hazards or psychological harm.
This is particularly relevant for schools because there are many unique features of school environments which present psychosocial hazards. For example, safeguarding obligations, which have increased dramatically in the last decade, create an increased risk that staff will be exposed to child abuse and experience vicarious trauma. In this article we address how schools can ensure they are taking due care of staff to meet workplace health and safety obligations when the school environment and legal obligations require staff to regularly engage with difficult topics such as child abuse.
Workplace health and safety regulators are increasingly turning their attention to how employers are managing psychosocial health in the workplace.
Two recent cases concerning psychosocial health have attracted significant attention and demonstrate the increasing importance of this topic. In Kozarov v Victoria, the High Court of Australia found the employer had breached its duty to take reasonable steps to mitigate the risk of psychiatric injury inherent to Ms Kozarov’s position. Ms Kozarov was a prosecutions lawyer working on cases involving sexual offences. The High Court accepted there are some roles where the nature of the work performed is inherently and obviously dangerous to the psychiatric health of the person holding the role, such as Ms Kozarov’s. The High Court clarified that in these cases, an employer must proactively take steps to reduce the risk of psychological injury. In October 2023, Court Services Victoria (CSV) was fined $379,157 after it admitted it had failed to conduct any adequate process to identify risks and undertake an adequate risk assessment of the risks to the psychological health of employees. During the period December 2015 to September 2018, workers had been at risk from a number of hazards including high workloads and work demands, poor relationships in the workplace, inappropriate behaviour and exposure to traumatic materials.
Proactively considering and addressing psychosocial hazards will stand schools in good stead, and therefore the Kozarov and CSV decisions should not be viewed with alarm. In Bersee v State of Victoria, a secondary school was found not to have breached its duty of care to a teacher because it took appropriate steps to address the risk of harm. As with any duty to students or staff, the law requires schools to take reasonable steps, not all steps sought or every possible step.
With new regulations expected soon in Victoria, now is the time to act.
What are psychosocial hazards?
Psychosocial hazards may cause psychological and physical harm. Broadly, they can arise from or in relation to:
- job characteristics, including the work environment, equipment, and job design and management; and
- harmful behaviours, including bullying, violence and aggression, harassment (including sexual harassment and/or gender-based harassment) and conflict or poor relationships and interactions.
Psychosocial hazards are hazards that arise from workplace interactions, behaviours or culture that cause a stress response. When the hazard is frequent, prolonged and/or severe this can result in psychological and/or physical harm. Particularly relevant examples for schools are:
- repeated exposure to traumatic events or material through staff requirements related to mandatory reporting and other safeguarding regimes;
- being the subject or a participant in a safeguarding investigation;
- exposure to challenging interactions with parents (from which safety orders may be implemented); and
- dealing with difficult student behaviour where staff safety may be at risk.
Understanding the stressors for school staff is important to be able to address those which might amount to psychological hazards. The Australian Principal Occupational Health, Safety and Wellbeing Survey 2022 reports that the top two stressors for school leaders are:
- quantity of work; and
- lack of time to focus on teaching and learning.
In 2022, the highest percentage of school leaders reported being subject to physical violence (44%) since the survey began in 2011. This is 11.3 times more prevalent than the general population. Over 40% of that violence was by students. The full survey report is here.
What are the obligations on employers?
Employer obligations regarding psychosocial hazards vary across states and territories in Australia. We set out the general legislative landscape for WHS in our article about Directors’ Duties. In summary, all jurisdictions except Victoria have enacted workplace health and safety legislation that mirrors the provisions of the Work Health and Safety Act 2011 (Cth). Most jurisdictions in Australia have implemented state-based regulations requiring employers to identify and manage psychosocial hazards.
Identifying a psychosocial hazard means turning your mind to parts of your employees’ roles which could cause psychological harm, such as continued exposure to child abuse by virtue of mandatory reporting obligations or dealing with violence and aggression towards staff by students and/or parents.
Safe Work Australia recommends the following four-stage approach to manage psychosocial risks:
At each stage of the process, employers must consult with workers who are, or likely to be, directly affected by a work health and safety matter, and any workplace Health and Safety Representatives.
To determine control measures for psychosocial hazards related to psychosocial hazards, consider:
- the duration, frequency and severity of exposure to hazards (for example, child abuse, work related violence);
- how psychosocial hazards may interact or combine (i.e., exposure to child abuse, and other work pressures); and
- the systems of work, including how work is managed, organised and supported (i.e., reporting processes and interaction with EAP);
- workplace interactions or behaviours; and
- the information, training, instruction and supervision provided to workers.
It is important schools turn their attention to if and how they are meeting their obligations relating to psychosocial hazards. Regulators are placing an increasing focus on enforcing employers’ legal obligations and responding to reports about potential non-compliance.
The unique Victorian position
In Victoria, the principal legislation governing workplace health and safety is the Occupational Health and Safety Act 2004 (Vic) (OH&S Act). There are no specific psychosocial safety regulations in place. However, the definition of ‘health’ in the OH&S Act includes ‘psychological health’ meaning Victorian employers are still required to identify and manage psychosocial hazards.
Victoria has proposed the Occupational Health and Safety Amendment (Psychological Health) Regulations. If passed, those Regulations will require employers to identify and eliminate psychosocial risks and, where that is not practicable, reduce the risk so far as is reasonably practicable. In a diversion from the national status quo, the proposed Victorian reforms will introduce a reporting requirement: employers with more than 50 employees would be required to provide to WorkSafe Victoria half yearly reports on ‘reportable psychosocial complaints including bullying and sexual harassment’.
What employers can do
Employers must take reasonable steps to manage psychosocial health risks inherent to an employee’s job, regardless of whether an employee has shown warning signs of mental illness. We recommend employers:
- have a framework in place to identify and assess psychosocial risks, implement control measures and systems to assess those control measures;
- consult with employees who are, or who are likely to be directly affected by a work health and safety matter, as well as any Health and Safety Representatives;
- have policies and procedures dealing with inappropriate workplace behaviours in place;
- establish clear channels for employees to report psychosocial hazards, and assess the effectiveness of those channels regularly;
- pay attention to the data they may be receiving about psychosocial hazards, such as complaints and grievances, and consider whether their framework for dealing with hazards needs to be updated; and
- provide training to all staff in workplace psychosocial hazards and policies and procedures.
How we can help
With technical and practical knowledge of workplace, safeguarding and education law, Moores has a unique strength to be able to bring together these legal topics to provide tailored legal advice about setting up frameworks to identify, assess and control psychosocial risks tailored to the school environment. We can also assess your current frameworks against best practice and to ensure compliance. Our child safeguarding experience means we have a deep understanding of the psychosocial hazards staff working in schools can experience. With cross-industry professionals we can support you to best support your staff, meet regulatory requirements and create a health culture of safety in your workplace for staff as well as students.
Contact us
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.