The psychosocial paradox – or when a psychosocial hazard meets “reasonable management action”
Queensland Teachers' Journal, Vol 128 No 4, 9 June 2023, page no.29
Queensland’s Work and Health Safety regime is about to collide with the infamous section 32 (5) of the Worker’s Compensation and Rehabilitation Act 2003 (WC Act).
Section 32(5) of the WC Act defines the meaning of an injury and states that a compensational injury does not include a psychiatric or psychological disorder arising out of, or in the course of, “reasonable management action taken in a reasonable way” or the “worker’s expectation or perception of reasonable management action being taken against the worker”.
That sounds reasonable enough, but to be considered reasonable, the action only needs to avoid being irrational, absurd or ridiculous.
Following amendments to the Work Health Safety Act (Qld) 2011 (WHS Act) in 2022, Workplace Health and Safety Queensland published the “Managing the risk of psychosocial hazards at work” Code of Practice (the code), which came into force in April (https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0025/104857/managing-the-risk-of-psychosocial-hazards-at-work-code-of-practice.pdf).
Under section 26A of the WHS Act, a person conducting a business or undertaking (PCBU) must comply with an approved code of practice, or provide an equivalent or higher standard of work health and safety than the standard required in the code.
WHS Regulation section 55A defines a psychosocial hazard as “a hazard that arises from, or relates to, the design or management of work, a work environment, plant at a workplace, or workplace interactions and behaviours and may cause psychological harm, whether or not the hazard may also cause physical harm. In severe cases exposure to psychosocial hazards can lead to death by suicide.’
The code states that common psychosocial hazards that arise from, or are related to, work may include: high and/or low job demands; low job control; poor support; low role clarity; poor organisational change management; low reward and recognition; poor organisational justice; poor workplace relationships including interpersonal conflict; remote or isolated work; poor environmental conditions; traumatic events; violence and aggression; bullying and harassment including sexual harassment.
Unfortunately, some QTU members may feel that reads like a position description rather than hazards they have a right to be protected from in the workplace. For example, the code states: “A PCBU’s duty includes ensuring the health and safety of workers and others from acts by third parties (e.g. patients or their family members, students in educational facilities, and members of the public in retail or hospitality establishments).”
A common issue facing teachers and school leaders is harassment with repeated rude and aggressive emails and vexatious complaints from parents or members of the public. These communications can sometimes stretch over a period of years, slowly chipping away at their target’s mental health.
According to the code, the PCBU (the Department of Education) has a duty to do all that is reasonably practicable to either eliminate or control the hazard. Yet the department’s practice in reality has largely been to expect their employees to simply “suck it up”.
If the member who is being harassed in this way does suffer an injury and make a claim to WorkCover that criticises their employer’s inaction, this will almost certainly be captured by Section 32(5) of the WC Act and rejected on the basis that the inadequate actions of management to protect them was in fact “reasonable management action”.
On the other hand, at least in theory, the department, or senior individuals at the school, could face a criminal prosecution under the WHS Act for their failure to comply with the code. They could face large financial penalties and in the worst cases even a prison sentence.
Meanwhile the victim of the harassment, who by this stage may be so badly injured they are unable to ever work again, may struggle to get compensation for what has happened to them.
This is a paradox – and that is just one scenario. There are countless others when the new code is read on face value.
We recommend that QTU members read the code and do what they can to ensure it is observed in their workplaces. One practical thing members can do is to use the MrHR WHS incident notification system to record the psychosocial hazards they encounter in their daily work. Psychological injuries often develop over time and teachers may not realise the harm they are suffering before it is too late. If the incidents are documented, it can mean the difference between your claim being accepted or rejected.