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Draft code could set workplace mental health standard, say lawyers

Adrian Flores
Adrian Flores
06 November 2020 1 minute readShare
workplace mental health standard

A recent draft code of practice in New South Wales relating to managing the risks of mental health could become a go-to guide for how employers must approach mental health at work, according to a law firm.

Psycho-social hazards are becoming the leading contributor to occupational disease and injury, with around $540 million paid each year in compensation to about 7,000 Australians due to work-related mental health conditions.

Partners at Kingston Reid, John Makris and Dominic Fleeton said that under the draft code, workplaces and individuals who allow behaviour that puts employees “at risk” from a wider range of mental health issues will be liable to prosecution and criminal conviction since it provides for practicable measures that can be taken to deal with such risks.

“In the past, when mental health issues have arisen, they have typically manifested themselves as workers compensation and/or employment-related claims,” Mr Makris and Mr Fleeton said.

“But NSW is signalling the end of that approach, with its Code of Practice putting psychological risks squarely on the agenda as an issue that will not simply be dealt with as a compensation claim.

“And it’s not just an issue of appropriately handling employees’ mental health problems, but of being aware of how mental health risks can arise and what steps need to be taken to proactively address them.”

Mr Makris and Mr Fleeton said the legal status of a Code of Practice varies in each state and territory.

However, they believed the NSW approach has the potential to set the example across all jurisdictions. For example, in NSW, a code of practice is admissible and courts have to give due recognition to it.

“While the legislators are moving towards a more rigorous regime on mental health issues, many employers are still not cognisant of the issue,” Mr Makris and Mr Fleeton said.

“The fact is psycho-social risks are difficult to manage given the underlying cause(s) may arise outside the workplace, leading employers to conclude that there’s nothing they can or should do about it.

“But considering the range of common hazards and risks that employers must be aware of, the reality is they cannot assume these are not a work-related issue.”

Some leading mental health risks in workplaces

Some common issues mentioned by Mr Makris and Mr Fleeton that can prompt a mental health risk include:

  • Fatigue, including mental, emotional and physical exhaustion;
  • Lack of recognition and reward;
  • Inadequate support from supervisors;
  • Poorly managed performance feedback;
  • Occupational violence;
  • Poor communication between supervisors, workers and others; and
  • Work demands.

“We strongly recommend all employers have a close look at the Code of Practice and consider whether they have appropriate controls to manage those risks in their workplaces,” they said.

“This will not only reduce the likelihood of regulator investigation and prosecution, but will also assist in reducing the number of related workers compensation and employment-related claims.”

Draft code could set workplace mental health standard, say lawyers
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Adrian Flores
Adrian Flores

Adrian Flores is the deputy editor of MyBusiness. Before that, he was the deputy editor for SMSF Adviser as well as features editor for ifa (Independent Financial Adviser), InvestorDaily, Risk Adviser, Fintech Business and Adviser Innovation.

You can email Adrian at [email protected].

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