Psychosocial hazards increasingly in regulator spotlight

The SafeWork NSW clampdown on psychosocial hazards – starting in February 2024 when the agency announced it would boost enforcement activities – was a key focus of a blitz in July that resulted in more than 500 non-compliance notices issues across the state.

Psychosocial hazards, a term that covers workplace dangers stemming from things like job demands, fatigue, low job control, job insecurity, and poor support, has drawn increasing scrutiny from regulators worldwide as understanding of psychological harm grows.

National law firm McCabes principal Melini Pilay says Australian regulators, like those overseas, have bolstered their focus on the area in recent times.

“Much of the psychosocial oversight we are seeing is in response to a complaint being made, that may simply trigger a look at what an organisation is doing in relation to psychosocial safety as opposed to a full investigation into conduct alleged,” Pilay says, adding that companies are grappling with how to guard against what she describes as a complex set of risks “borne of people”.

“People are unique and invariably difficult to predict, she says. “In professional services there are those crippled by the task of undertaking a risk assessment, consulting with staff, or the continuous restructuring occurring or turnover of staff and some simply don’t know where to start even if they want to.

“Then there are others with robust risk assessments, policies, and training but unable to or unwilling to address the root people issues, those known to HR or safety, operating in senior positions promoted for their technical ability or capacity to drive revenue or bring headlines, but often complained about because of their questionable interpersonal skills.”

She says when it comes to firms curbing such risks, a good place to start is onboarding. However, to get the fix right at this point firms must be truthful about expectations.

“It’s about being honest with what is required in a role and what the firm expectations are,” she says. “It’s also about the individual applicant properly considering if the profession, firm or role is right for them, as there are stressors that simply cannot be eliminated.”

She points to some candidates being “terrified of the need to account for their time through billing incrementally while there are others who see it as a system no different to email.”

“While workplaces need to take certain steps, it also needs people to have a level of self-awareness, honesty and transparency for it to work properly,” Pilay says.

Looking ahead, she predicts SafeWork NSW will continue its focus on psychosocial safety, after the agency earlier this year withdrew a psychosocial risk action against Western Sydney Local Health District (WSLHD) after three weeks of hearings. The matter was reportedly one of the first safety prosecutions by the watchdog over alleged failures to manage psychosocial risks.

“There is a broad expectation both within the community and I suspect politically, that all this emphasis on psychosocial risks in the workplace, must result in some deterrent aspect gained through prosecution,” Pilay says.

SafeWork NSW did not say how many enforcement actions it had carried out since February 2024 on psychosocial hazards.

“SafeWork NSW has a strong focus on the importance of psychological health and safety in the workplace,” a spokesperson said in a statement.

“SafeWork NSW expects business to be aware of their legal obligations to provide psychologically healthy and safe workplaces.”

Charlotte Brakenridge, an academic at Griffith University’s Centre for Work, Organisation and Wellbeing, is not surprised that psychosocial risks are increasingly in the spotlight.

Brakenridge says that in NSW the groundwork was laid back in 2021 when SafeWork NSW released its code of practice for managing psychosocial hazards at work – an approved code of practice for the Work Health and Safety Act 2011.

The research fellow says many other states have followed NSW’s lead, while Victoria will introduce changes at the end of the year. “As such, there has been increased interest by regulators and workplaces in psychosocial hazards in the last couple of years,” she says.

There have also been federal moves. For instance, the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024 puts onus on employers to treat risks to mental health with at the same level as physical safety, It has been interpreted as transforming law firms practices like excessive billable hour targets and workplace bullying from cultural challenges into compliance issues with potential heavy financial penalties.

According to Brackenridge, an expert on worker health and wellbeing, key issues for law firms at present are high workloads, excessive job demands, long work hours, a lack of training, low job control, and a lack of supervision and management support.

Vicarious trauma exposure is also another big issue, she says, highlighting tasks done by some lawyers such as reading victim impact statements, direct contact with complainants, viewing crime scene photos, and listening to emergency calls.

“Other psychosocial hazards can exacerbate the impact of vicarious trauma and these include high workloads, poor workplace cultures, unsupportive managers, mental health stigma and insufficient training,” Brackenridge says.

In terms of staying ahead of the risks, she urges law firms to roll out a range of strategies and controls to minimise, or eliminate, hazards and increase reporting of risks.

For instance, she says it’s important for firms to have a workplace contact for employees – not in their reporting line – who is the go-to person for confidential reporting about hazards.

Keeping this contact outside the usual chain of command is essential to mitigate fear of stigma or reputational damage of reporting risks, Brackenridge says.

Other helpful initiatives are giving staff opportunities for social connection at work, and varied types of work to reduce vicarious trauma exposure.

When it comes to young lawyers, many of whom struggle with burnout and work stress, the academic identifies the system of billable hours as an ongoing problem.

“Billable hour targets can exacerbate overwork in young lawyers as this system motivates working longer hours rather than working more productively,” she says. “Other activities such as participating in training, mentoring and connecting with colleagues are not counted, and so if they are included in the workday, lead to even longer working hours.”

“This may disincentivise workers participating in any activities that are not billable, despite benefits to worker wellbeing,” Brackenridge adds.

“Cultural change is needed in the legal profession and the codes of practice may provide the regulatory pressure to enact these changes.”

While SafeWork NSW expects business to be aware of their legal obligations to provide psychologically safe workplaces, law firm Ashurst, which defended the agency’s action against (WSLHD), says the case exposed how tough it is to win prosecutions under NSW law.

It showed the “real difficulty” in NSW of  “proving breaches of the WHS Act in the context of managing psychosocial risks”, according to the Sydney-headquartered law firm.

“Due to the withdrawal of the proceedings by SafeWork, the court was not required to make any determination about the types of steps that should be taken by an employer to avoid stress becoming a risk of psychological injury,” it says.

“We anticipate that this concept will be the subject of judicial consideration in future WHS prosecutions alleging failures to manage psychosocial risks.”

In the interim, Carolyn Devries, founder and CEO of New Way Lawyers, says a range of psychosocial hazards must be grappled with in her area of expertise, family law.

She says some of the risks such as high workloads and difficulties maintaining work-life balance are common across the legal sector, while others like exposure to vicarious trauma from cases involving domestic and family violence or child abuse, are specific to family law.

In her opinion, the best way to get on top of the issue is to take a values-led approach.

“Care is central to our organisational culture, guiding our responses both internally to our team members and externally to our clients,” Brisbane-based Devries says.

To support its staff, she says the firm takes a “layered approach” that includes both “inward and outward strategies”.

Internally, team members participate in fortnightly meetings with the principal lawyer alongside ad hoc sessions when needed with a key agenda item being personal health and wellbeing. There’s also a focus on encouraging awareness and reflection on how work may impact individuals physically, emotionally, and spiritually.

The firm also offers support from an in-house chaplain as well as providing access to external programs like Law Care for further staff support, the CEO says.

“Through these comprehensive measures, we aim to promote resilience and wellbeing within our team and a supportive environment for everyone.”

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