Victorian OHS (Psychological Health) regulations finally released: what does it mean for Victorian employers?

3 years after the first draft of proposed amendments to the Victorian OHS regulations regarding psychological health were released for public comment, the final version has been released and will take effect from 1 December 2025.

The Occupational Health and Safety (Psychological Health) Regulations 2025 (Regulations) will be implemented as standalone regulations and not incorporated into the existing Occupational Health and Safety Regulations 2017.

A new "Psychological Health Compliance Code" has also just been published by WorkSafe.

OHS (Psychological Health) Regulations

The original draft of the Regulations proposed changes that not only codified the existing duty imposed on Victorian employers to ensure the psychological health of their employees, like the changes already introduced in other state and territories, but, unlike those other jurisdictions, they also required:

• employers to prepare prevention plans for the following psychosocial hazards including aggression and violence; bullying; exposure to traumatic events; high job demands; and sexual harassment; and
• large employers (+50 employees) to report to WorkSafe every six months about "reportable psychosocial complaints" which were defined to include: aggression and violence; bullying; and sexual harassment.

However, late last week, the Minister for WorkSafe, Ben Carroll, formally decided that the Regulations will not include the requirement for prevention plans and nor will they require large employers to report "reportable psychosocial complaints" to WorkSafe.

Whilst this decision may alleviate administrative burden by avoiding the requirement to prepare prevention plans or biannual reports to WorkSafe, the fact remains that the identification and control of psychosocial hazards in Victorian workplaces will be subject to increased monitoring and enforcement by WorkSafe.

In short, the new Regulations require Victorian employers to:

1. identify psychological hazards;
2. control (eliminate or minimise) risks associated with a psychological hazard; and
3. review of risk control measures.

What is a Psychosocial Hazard?

A psychosocial hazard is defined as means any factor or factors in:

1. the work design; or
2. the systems of work; or
3. the management of work; or
4. the carrying out of the work; or
5. personal or work-related interactions — that may arise in the working environment and may cause an employee to experience one or more negative psychological responses that create a risk to the employee's health or safety.

Examples of these hazards in the Regulations include "aggression or violence, bullying, exposure to traumatic events or content, high job demands, low job control, low job demands, low recognition and reward, low role clarity, poor environmental conditions, poor organisational change management, poor organisational justice, poor support, poor workplace relationships, remote or isolated work or sexual harassment."

How do you control a psychological risk?

Under the Regulations if an employer cannot eliminate any risks associated with a psychological hazard, an employer must reduce the risk by altering:

1. the management of work; or
2. any plant; or
3. the systems of work; or
4. work design; or
5. the workplace environment; or
6. information and instruction and training.

However, employers can only solely rely on administrative controls such as instruction and training as the exclusive control measures if none of the other measures described above are reasonably practicable. Further, if an employer was to use a combination of control measures from the list above, the Regulations prohibit using instruction and training as the predominant control measure.

In other words, the Regulations have incorporated an express obligation to comply with the hierarchy of controls when determining control measures for controlling psychological risks. This is consistent with duty imposed in the WHS Regulations of other states and territories and forces Victorian employers to implement higher order controls wherever possible rather than simply relying on administrative controls to control risks associated with psychosocial hazards.

A failure by an employer to control a psychological risk as prescribed under the Regulations will also amount to a contravention of an employers' duty to provide and maintain safe working environment under section 21 of the *Occupational Health and Safety Act 2004 *(OHS Act).

When do you need to review the control measures?

Under the Regulations an employer is obliged to review, and, if necessary, revise any control measures it has implemented to control risks associated with psychological hazards:

1. before any change is made to anything, process or system of work, that is likely to result in changes to risks associated with those psychological hazards;
2. if new or additional information about psychological hazards becomes available to the employer;
3. if an employee reports a psychological injury or hazard to an employer;
4. if a WorkSafe notifiable incident occurs that involves one or more psychological hazards; or
5. if, for any other reason, the risk control measures do not adequately control the risk associated with the psychological hazard; or
6. if requested undertake a review of the control measures by a Health and Safety Representative.

Again, whilst these new duties are largely consistent with the obligations already imposed in other states and territories there are some subtle differences, particularly the obligation to review controls if an employee reports a psychosocial hazard to their employer, noting that in other jurisdictions the requirement to review the control measures would be restricted to a new hazard being identified.

As always, and in accordance with their duty to do under the OHS Act, employers must consult with their employees and Health and Safety Representatives when:

• identifying or assessing hazards and risks;
• making decisions about how to control risks to safety;
• making decisions about procedures for consultation, monitoring of employee health and providing information and training; and
• proposing changes to workplaces, plant, and work that may affect the health and safety of employees.

Compliance code

WorkSafe has now published a "Compliance Code - Psychological Health" which we are reviewing and will prepare a separate bulletin in relation to.

Whilst the Compliance Code provides practical guidance to employers about how to discharge their duties under the OHS Act and the Regulations in relation to ensuring psychological health, compliance with it is not mandatory. However, failure to abide by the Code may be used in evidence in prosecutions for offences under the OHS Act and Regulations.

In summary, the Compliance Code:

• reiterates the duties imposed on employers, employees and others in Victoria;
• identifies psychosocial hazards;
• steps thorough the risk management process (Identification, Assessment, Control and Review) and reiterating the importance of consultation through the process;
• details how uncontrolled exposure to psychosocial hazards can cause harm;
• lists negative psychological responses which can lead to psychological or physical injury or illness or both;
• details the importance of a strong workplace safety culture in managing psychosocial risks;
• reiterates the importance of elimination of risk associated with psychological hazards and the need to apply the hierarchy of controls to reduce psychosocial risks and particularly by using combination of controls;
• reminds employers to maintain records associated with the risk management process and consultation regarding psychosocial hazards;
• provides practical examples for employers in different occupational contexts (i.e. retail work, etc) as to the mix of control measures that may be suitable to minimise risk of psychological harm;
• reminds employers that that employees may not be inclined to report psychosocial hazards and how to encourage them to do so;
• suggests that employers consider developing prevention plans for particular hazards such as bullying;
• provides examples of practical control measures in relation to all of the psychological hazards defined in the Regulations.

Next steps

Considering the duties imposed by the Regulations and the expanded list of psychosocial hazards defined by them, Victorian employers should:

• review the Psychological Health Compliance Code for guidance;
• review their policies, procedures and processes to ensure that they account for identifying psychosocial hazards and controlling risks to psychological health with an emphasis on higher order (i.e. non-administrative) controls wherever possible;
• ensuring their organisation's systems can effectively capture and report on data related to incidents and complaints associated with psychosocial hazards;
• implementing or reviewing training, as well as policies and procedures, to ensure they appropriately address risks to psychosocial health and how to respond to or manage such risks if they arise; and
• consult with employees and HSRs regarding risks to psychosocial health and reviewing the controls used to mitigate these risks.