WHS - beyond the physical

There’s been a lot of focus on mental health in recent weeks, as evidenced through Australia’s National Mental Health Week and World Mental Health Day in early October. While much of the media attention has historically been based on the role of individuals, there is increased interest on the impact for business and what organisations can do to ensure a healthier workplace.

There’s no doubt this issue is costing Australian industry dearly. According to the Heads Up website, which is a joint venture between the Mentally Healthy Workplace Alliance and beyondblue, organisations nationally lose 6 million working days per year due to untreated depression and, at any time, 1 in 5 employees are likely to be experiencing a mental health condition.

While it can be a very delicate issue, both employees and employers have rights and responsibilities under the Disability Discrimination Act 1992 (Cth). Despite it being illegal for an employer to discriminate against someone on the grounds of a disability, there are a number of questions that can be asked of current or potential employees to assess suitability. Employers can ask questions necessary to:

1. Assess whether a person can perform the inherent requirements of the job.
2. Identify if any reasonable adjustments may be needed in either the selection and recruitment process or in the work environment and role.
3. Establish facts or entitlements including sick leave, superannuation, workers compensation and other insurance.

Heads Up advises that the overall test for determining the right to make enquiries is bound by legitimacy - such as queries relating to medication if an employee is required to operate machinery. In all cases, confidentiality and protection of information against improper access and disclosure is paramount.

The Disability Discrimination Act requires employers to make reasonable adjustments so that a person with a mental health condition can perform the functions of their job. These adjustments may include changes to work method or arrangements (including hours of work and use of leave entitlements), changes to the workplace or work-related premises, equipment or facilities, and changes to work-related rules or modifications to enable a person to comply with rules as they exist.

There is a certain amount of leeway, however. Heads Up suggests that the individual situation will dictate what kinds of adjustments are reasonable. Whereby requested adjustments are likely to bring unjustifiable hardship or change the inherent requirement of the role, there is no obligation to implement them. Employers are required to determine actual risk (rather than perceived risk), to understand the degree of risk and take proportionate steps to minimise it, and to recognise that the more serious the risk and the greater the likelihood of it eventuating, the more important it is to take preventive steps.

WHS legislation also protects employers, as employees are required to act responsibly, to take care of themselves and others, and to cooperate with their employer in the matters of health and safety. Under the Act, if an employee’s mental health condition could reasonably be seen to cause a health and safety risk to others, failing to disclose that risk may be a breach of their obligation under WHS legislation.

The Heads Up website hosts a wealth of material for both employers and employees, including information on how to create a mentally healthy workplace, guidance for identification of depression or anxiety and how to support others, as well as a range of training programs.

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