Mental Health, The Workplace & The Law
The employer's responsibility towards mental health in the workplace is embedded in Australia's Law. Both Case Law and Legislation.
The relevant clauses under the Work Health and Safety Act 2011 (Cth) in Australia that particularly pertain to an employer's responsibility towards mental health in the workplace: Sections 19, 22, 32, 45-46 Section 19 - Primary duty of care: This section states that a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers and other persons who may be affected by the work. This includes taking steps to eliminate or minimise risks to psychological health as well as physical health and safety. Section 22 - Health and safety duties of employers: This section outlines the specific duties of employers, including the duty to provide and maintain a work environment that is without risks to health and safety, and to provide any necessary information, training, instruction or supervision to protect workers from risks to their health and safety. Section 32 - Reasonably practicable: This section states that the duty to ensure health and safety is subject to what is reasonably practicable, taking into account the likelihood of the hazard or risk occurring, the degree of harm that could result, the state of knowledge about the hazard or risk, and the availability and suitability of ways to eliminate or minimise the risk. Section 45 - Provision of information, training and instruction: This section requires employers to provide workers with information, training, instruction and supervision necessary to protect their health and safety at work. This includes training on how to identify and manage risks to mental health, and how to support workers who may be experiencing mental health issues. Section 46 - Health monitoring: This section requires employers to provide health monitoring to workers if they work in prescribed hazardous environments or if they are exposed to hazardous chemicals. In some cases, this may include monitoring workers' mental health.
What about The Fair Work Act 2009?
The Fair Work Act 2009 does not contain specific clauses that refer to an employer's responsibility towards mental health in the workplace. However, there are general provisions under the Act that require employers to provide a safe and healthy work environment for their employees. Section 84 of the Act states that an employer has a duty to ensure, so far as is reasonably practicable, the health and safety of their employees while they are at work. This includes taking steps to prevent or manage workplace hazards that may cause harm to the mental health of employees, such as excessive workloads, bullying, or harassment. Furthermore, under the Act, employees have the right to request flexible working arrangements if they are experiencing mental health issues. Employers must consider these requests and can only refuse them on reasonable business grounds. There are also other laws and regulations in Australia that specifically address mental health in the workplace, such as the Work Health and Safety Act 2011 (Cth) and the Disability Discrimination Act 1992 (Cth).
It is therefore recommended that employers seek legal advice or consult with an occupational health and safety specialist to ensure they are meeting their obligations towards their employees' mental health and wellbeing in the workplace.
Emanuel Perdis is a trauma-informed Anger Management therapist who administers therapeutic counselling for individuals as well as couples. His key specialties for counselling are Anger, Relationships, Trauma and Anxiety. All therapy is delivered online, via Zoom, and enquiries can be made through https://www.emanuelperdis.com/let-s-talk or on the phone via +61 412 288 081