First PCBU Charged for Poor Organisational Justice

For the first time, a PCBU has been charged for exposing workers to psychosocial hazard in the form of Poor Organisational Justice.

The Western Sydney Local Health District (WSLHD) has been charged for failing to manage psychosocial hazards, marking a significant precedent in the enforcement of workplace health and safety laws.

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Key Findings:

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Subjective feelings are admissible:

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The court rejected the argument from WSLHD that the subjective experiences of stress reported by workers were irrelevant. Instead, it upheld the view that:

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• Workers’ subjective feelings are critical in assessing the psychosocial risks.
• Employers must consider these experiences as part of their duty to manage workplace risks.

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"In my view, the statements of the nurses to others that they were experiencing stress or other feelings consistent with experiencing stress is evidence that is relevant to establishing whether there was a risk of physical or psychological harm and thereby if WSLHD breached its s 19(1) duty."

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It is not alleged that it caused harm:

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WSLHD was charged not because their actions directly harmed the employees but because they failed to manage known psychosocial hazards. WHS compliance focuses on the potential risk and the management of that risk, rather than the outcome of harm.

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It is noted that there were two key aspects to this case.

1. Failing to conduct a risk assessment when there were foreseeable risks (in this case it was foreseeable that stress could be high during a clinical review that was taking place)
2. Failure to apply its own policy

Given these two aspects, below are questions we as employers should consider.

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Questions for employers to consider:

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Risk assessment:

• How regularly do we conduct risk assessments for psychosocial hazards?
• Do they consider the employees' subjective feelings and all potential risks?
• Is there a scheduled plan that prompts regular review and reassessment?

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Policies and procedures:

• Do we have clear policies in place that address psychosocial hazards?
• Can we provide concrete evidence that these policies are implemented?
• Would employees agree they are implemented if being interviewed?

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Above is a risk assessment visualisation, assessing each hazard based on prevalence and subjective impact. It can be helpful to consider what data you have right now that would allow you to score each of the hazards? It doesn't have to be a lengthy process to achieve this, here is a psych risk survey template you could use.

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Thank you for reading as always, we hope you found this insightful.