Mental health in the workplace – What are employers’ legal obligations?

Too often, we see employers fall into the trap of focusing solely on their employees’ physical health (think first aid training and fire extinguishers) relegating mental health to the “too hard basket”. This oversight is not only costly for businesses when employees are successful in any number of claims – for example, claims under the Fair Work Act, State based workers’ compensation legislation, commonwealth or federal discrimination claims, common law negligence claims, or penalties for breach work health and safety legislation – but they also impact on the culture of any business.

Given the proliferation of “start-ups”, we are seeing an increased focus on mental health – with employers seeking to create mentally healthy workplaces through the use of flexibility and remote-work policies, and unique initiatives, like “bring your dog to work day”.

While many of these initiatives may help foster mentally healthy workplaces,
it is important that employers don’t simply take a tokenistic approach to mental health and are instead proactive, regularly examining where risks may lie and considering how to mitigate those risks.

Overarching Work Health & Safety Obligation

Under Australia’s Model Work Health and Safety legislation, a “person Conducting a Business or Undertaking” (PCBU) has the primary duty of care to ensure the health and safety of workers while they are at work in the business or undertaking, to the extent that it is “reasonably practicable” to do so. That duty extends to:

• The provision and maintenance of a safe work environment;
• Provision and maintenance of safe plant and structures;
• Provision and maintenance of safe systems of work;
• Ensuring the safe use, handling and storage of plant, structures and substances;
• Provision of adequate facilities;
• Provision of instruction, training, information and supervision; and
• Monitoring the health of workers and conditions at the workplace.

While the legislation (and accompanying regulations) contain various other obligations, the primary duty is a useful starting point for employers.

Common Misconceptions

As briefly canvassed already, employers often fall into the trap of focusing on physical health – for instance, focusing on obligations with respect to physical plant, facilities, and structures and overlooking the fact that a “Safe work environment” encompasses a mentally safe work environment.

It is also important to note that “PCBU” is broadly defined to contemplate all manner of working arrangements, and “worker” is intentionally used rather than “employee” so as to capture, for instance, independent contractors and volunteers.

Be Proactive Not Reactive- Arm yourself with Policies

The crucial first step for any PCBU is to ensure you have safe systems of work and robust workplace policies.

A well-drafted collection of workplace policies is a useful tool to set and regulate standards of behaviour and to ensure an avenue for investigating and addressing grievances.
Policies such as bullying, harassment, and equal opportunity can assist with reducing instances of bullying and harassing behaviour in the workplace that can have a detrimental impact on mental health. And a grievance policy ensures staff have an avenue for airing grievances, rather than letting an issue fester.
When implemented effectively, and periodically reinforced, policies can also be invaluable in providing the framework for a healthy workplace culture and, from a risk standpoint, they might assist to reduce a PCBUs vicarious liability for the actions of other staff.

As social media takes over as a favoured mode of communications (think Facebook, LinkedIn and Slack Messenger) PCBUs need to be increasingly aware that such platforms might provide another forum for bullying or harassing behaviour that may impact on employees’ mental health. Accordingly, PCBUs (particularly employers) should consider adding a social media policy to their policy collection, setting out appropriate online conduct, without unreasonably encroaching on employees’ private lives.

Identify Hazards – Fatigue

Once your policy collection is in order, it is crucial to regularly assess for hazards.
Fatigue – as a hazard impacting on mental health – is receiving increased attention and for good reason. It is no surprise that workplace fatigue has been attributed to a decline in mental health.

PCBUs should be cognisant of when they may (even inadvertently) be contributing to a fatigued workforce. That may involve scrutinising and changing shift rotations, roster patterns and shift lengths, or ensuring an additional of contingent workers over busy periods such as Christmas/New Year to prevent under-resourcing.

PCBUs should also consider factors external to work – such as staff members’ carer responsibilities, or secondary employment. It may be useful to include a secondary employment clause in employment contracts, requiring employees to seek consent from the company to engage in secondary employment. PCBUs can then assess any such request with work health and safety in mind, to ensure their workforce isn’t overworked.

Watch Your Remote Workforce

In the age of remote work, it is easy to disproportionately focus on those in your line of sight, but remote work attaches unique risks that could prove costly.

Again, a carefully drafted remote work policy is key and that policy should make provision for a regular “check-in” procedure, during which managers should gauge a workers’ workload to prevent fatigue.

Domestic Violence Leave

In August 2018, all Modern Awards were amended to include provision for unpaid domestic violence leave. This is a timely reminder that PCBUs (employers in particular) need to look beyond the workplace when considering employees’ mental health – this new obligation to provide leave in circumstances of domestic of course being inextricably linked to the issue of mental health, with domestic violence leave to now play a role in alleviating the stresses associated with domestic violence.

It may come as a surprise to some businesses that the workplace plays such an integral role in mental health, but of course there is no time like the present to conduct an audit of your workplace and flag any areas for improvement to ensure a mentally well workplace.

Disclaimer: This publication is intended only as a general overview of legal issues currently of interest to Persons Conducing. It is not intended as legal advice and should only be used for information purposes only.