Let's Yarn: Managing psychosocial risks for First Nations employees

Trent Wallace:

We acknowledge First Nations peoples as the traditional custodians of the land on which we work in Australia. We pay our respects to elders past, present and emerging. And to the youth who are working towards a brighter tomorrow.

My name is Trent Wallace and I'm a Wongaibon person raised on Darkinjung Country. And I am the Head of First Nations Strategy and Advisory at Ashurst. And welcome to the Let's Yarn mini series on ESG Matters at Ashurst.

Today I'm joined by Tony Morris, leader of the National Work Health and Safety Team in Ashurst Risk Advisory. With over 26 years' experience, Tony is an expert in WHS psychosocial risk management, investigations and navigating health and safety regulations. As a former senior litigation lawyer for the safety regulator, then known as WorkCover New South Wales, and a police prosecutor and detective in , Tony has an innate understanding of the increasing regulatory pressures clients are facing. Thanks so much for joining me, Tony. Can you please tell me what is psychosocial risk and how does it show up in the workplace?

Tony Morris:

Yeah, thanks very much, Trent. Great to be here as well. Psychosocial risks or hazards are anything at work that have the potential to cause psychological harm or physical harm to people at work. And if you go to SafeWork Australia - and they're the policymaking body within Australia that provides not just the legislation guidance, but also the psychosocial risk guidance – they say there are 14 psychosocial hazards and I like to break them up into four groups really. The first one is work design. And that can include job demands, role clarity and job control. The next one is what I call social, which is your bullying, harassment or your conflicts at work or violence or aggression at work. The next one's the work environment. And that can include the physical environment where you work, it can include remote or isolated work, and it can include traumatic events or material. And finally, the fourth one is governance. What I call governance. It's things like poor organisational change management or organisational justice. And it also includes reward and recognition. So they're the 14 different psychosocial hazards. There's many of them, isn't there?

Trent Wallace:

So many. And when you discuss that with me, having that yarn, in my mind, I'm taking it to all of the First Nations reports that we've seen recently, particularly Gari Yala, which means speak the truth in Wiradjuri language. And that was a report done in conjunction with the Jumbunna Institute at UTS and the Diversity Council of Australia. And some of the things that I'd like to relate to those hazards that you've listed would be the role clarity. When we think about First Nations peoples in the workplace. The reward and recognition, oftentimes senior First Nations roles are the first of their kind to exist. So how do you measure their reward and recognition?

I'm thinking also too about Murdoch University recently introducing fees around Colonial Load, also known as Cultural Load, as described in the Gari Yala Report. I'm thinking about elements of violence and aggression, particularly in relation to the referendum last year. I'm thinking about bullying, harassment and discrimination within the workplace that First Nations peoples often live through. And then the poor support, not necessarily having the right controls in place to mitigate risk and harm to First Nations employees. Can you tell me though, have employees brought any successful claims against employers? Is this increasing? What does that look like? What is that landscape like?

Tony Morris:

It's definitely increasing, definitely building. When you talk about claims, what I think of is workers' compensation claims. And yes, there's been plenty of successful workers' compensation claims. But it's worthwhile saying that that's not my area of expertise. My area of expertise is in the work health and safety requirements. And the legislation, if it's breached, is a criminal breach of the organisation and/or its offices or workers. And that's the area that I help clients with managed psychosocial risk. And that is also growing. And what I mean by that is we are seeing criminal convictions come through of organisations who are failing to manage psychosocial risk. So failing to be proactive, assess the risk, and then minimise that risk through good controls. There's been a number of convictions in this jurisdiction now around Australia. What I do know is that the safety regulators are focusing on this risk, particularly as it affects psychological health and wellbeing. And they are looking to investigate and prosecute further where they see lack of managing this risk. So absolutely, it's building.

Trent Wallace:

It's really interesting to think about the risks of not managing or controlling the issues that arise. It's really interesting to think about the possible outcomes that could arise from those actions or lack of actions, rather.

Tony Morris:

It's a different way of thinking about it, Trent, isn't it? Because most often we thought about this risk as a HR issue and most of the time HR issues are dealt with after the event. And our HR teams within organisations respond very well to that. But it is a response and it is after the fact. The work health and safety lens is a proactive lens. It looks at what is happening and what is not happening before which should have been in place. And the offense is actually not properly managing the risk of foreseeable risk.

And it is foreseeable, because it's out there now and it's known and people are aware and the safety regulators and SafeWork Australia have said, "This is what it is." You need to be proactive now to manage it. So how do you do that? And you do that by doing a good risk assessment in consultation with your workforce and then looking at your control environment and go about putting those controls in place to minimise the risk. Because the other way to think about it is we don't live in a risk-free workplace. There'll always be some element of risk. But what can organisations do to minimise it? That's the test and that's what we're talking about.

Trent Wallace:

It's really powerful to think about that lens of a collaborative workplace. Because that's what I'm hearing from you is a piece around collaboration and inclusivity and thinking about elements of accessibility. To me, it really speaks to those core elements of inclusion, diversity and belonging, and making it a real legal risk should they not seek to embed those kind of core inclusivity principles. It sounds like that to me.

Tony Morris:

It is definitely a legal risk. It's also a brand and reputational risk. If organisations don't get proactive and manage this well, it's going to hurt them, hurt their business, and it won't look good for their brand or their reputation. It's also really important. I call it a, if you can manage it well, it's a talent magnet. If we don't manage it well, people will leave the organisation. Because these days, the way that our younger people see the organisation is they want to see effort and proactive measures managing this risk at work. If they don't see it, they're not likely to hang around.

Trent Wallace:

Absolutely. Talent magnet. That's a really interesting thing because when we think about retention pipelines, you build an employment attraction and retention strategy, you need to think about those factors. So it's really interesting to hear about the workforce and how they're viewing these issues in relation to their workplace enjoyment, safety, inclusivity, all of those elements. And I think we've yarned a bit about this, but why do you think it's the next big issue for employers to tackle? We've covered off on it, but why do you think that? And do you think the Right to Disconnect laws have influenced a route to mitigate the risk and harm to employees?

Tony Morris:

Yeah. Let me come back to the Right to Disconnect. And I should put up my hand and talk about what I used to do. I actually used to be a prosecution lawyer back in the late '90s for WorkCover New South Wales. I used to prosecute for breaches, the OHS laws back then. Interestingly, and when I was prosecuting under the legislation, it was the OHS Act 1983. And even under that 1983 act, the prosecution had the ability to prosecute for these offenses for failing to manage psychosocial risk. But we never did. And when I asked myself, "Well, why didn't we? Why didn't the safety regulators do that back then?" Because the reason was they were so busy prosecuting for death and blood on the floor and limbs missing that there was so much to do in that space, they never really drew their mind to this risk.

So what's changed? If we go back to really things started change with the Me Too Movement. Also what we saw in Australia was significant issues around bullying and harassment, allegedly, in the mining environment. Which the community put pressure on the legislatures to say, "Hey, we're not doing enough with respect to this risk. You need to do more." The government of the day put pressure on the safety regulators, the safety regulators put pressure on the employers to manage the risk. Then we had various different reports come out, like the Kate Jenkins report that came out, in relation to sexual harassment and the failing to manage that. And this grew and SafeWork Australia, who were the policymaking body, saw all this and realised that the workplace is changing and it has changed. Now, there is a focus by the safety regulators and this is a clear work health and safety risk.

So really it's come from deep within the community that enough's enough and that some of our people are leaving work scarred and not in a healthy frame of mind or place. And that unhealthy frame of mind often leads to other physical issues, which is why the physical harm is in there as well. And it's time. It's now time that organisations start to realise that they have a part to play here and their acts or emissions can directly impact this risk and how it's managed.

The Right to Disconnect. Well, that is another separate piece of legislation, again, which is not my area. It's more employment law, that one. But it does come out of the same issues that we're talking about. People absolutely need the right to disconnect because we are too connected, I think, these days. So I was only thinking, I was on a flight recently, Trent. And I used to, when I was really busy, jump on a flight and be really happy to hear that door close and take off because no one could contact me on my phone. I was free.

These days, I jump in a plane and I can connect to my email and my texts and my teams. And so what do I do? I connect. And so I'm thinking I've lost that now, something that I used to look forward to and have a wine and a bit of a meal. And I think that keeps getting taken away and almost like we don't realise it as it's happening. The Right to Disconnect is, well, now the legislature's long. Well, let's control this by legislation, particularly for those employers that, let me say, might be allegedly recalcitrant and don't want to listen, create a separate offense for that and take some action around that. So really it's just another control for the psychosocial risks that we're talking about.

Trent Wallace:

Absolutely. And I really appreciate the use of its time. I think Gough would be quite proud of that reference. I've been thinking about this and I've been mulling it over quite a bit since the events of last year, the release of reports such as Gari Yala, recent studies by ANU around racial bias, unconscious bias, elements of that. And the government of the day and their announcement for First Nations job packages and releasing a suite of employment opportunities for mob across the country.

From what we've discussed though, do you think it would be sensible to apply an additional layer of First Nations nuance to this work? Especially given the referendum result and the rise in racism as described by what we discussed earlier, First Nations mental health institutions like 13YARN and the Jumbunna Institute Diversity Council of Australia. Do you think it would be appropriate, do you think it's needed to apply this additional layer of First Nations nuance?

Tony Morris:

Absolutely I do, Trent. Not only do I believe it, in my opinion, that's exactly what the regulators' expectations are. One of the requirements that the regulators have and is in the legislation is that employers must consult with their workers with respect to the risks that affect them. That means they need to do a risk assessment with respect to these psychosocial hazards that we're talking about. But the other thing it says when you consult, you must ensure that you consult with the cross section of your workforce. And it even goes into, that includes gender, and that includes backgrounds, and that includes the different work that they do.

So I'd argue not only do I believe absolutely it needs to be included, but I'd argue that the law says the same thing. It requires that employers, if you have First Nations people working for you, and that includes whether or not they're contracted, whether or not they're volunteered or they're at your workplace and could be affected by your acts or emissions whilst at work, you need to ensure their health and safety whilst they're at your place of work. So to do that, you must understand the nuances and the particular issues that First Nations people might face in the context of your operations and the work that you do. So what I'm suggesting practically is make sure you include the First Nations lens in your risk assessment and make sure you consult with representations of First Nations people when you do that.

Trent Wallace:

It's really interesting to hear that take and I think it's a particularly important one. So often First Nations issues tag along the end of other core Eurocentric issues that we're dealing with in the law or the public space. And so I find that's a really empowering lens to take. And certainly with the development of my First Nations Advisory, I've been working alongside teams and people like yourself and like the employment team at Ashurst to really put First Nations perspectives on this work so that we're not ending up in a position in five to 10 years' time where there are going to be these huge problems that we can't really mitigate because reputational risk and harm has already been done, the retention strategy is low. We're seeing all of those kinds of effects. But from your perspective, Tony, what are the ways in which Ashurst is equipped to deal with this? How do we support our clients? How do we serve our broader community?

Tony Morris:

Well look, I think from my perspective, the greatest benefit that we offer, you've already mentioned, it's the legal and the risk teams working together. To provide not only the legal advice and the legal risk and context, but also the operational and organisational risk and practical context. And that's rare, isn't it, Trent? I mean, it's rare that you have lawyers working beside risk consultants to help clients with really challenging issues such as psychosocial risk management. It is challenging. Every industry, every employer is challenged by it. Their offices are and their executive team, the leaders and the managers, they all are. And they're all needing this really good practical advice as well as the legal advice about how to go about implementing that. So not only can we provide the practical legal advice in context of whatever a particular client is facing. The work that me and my team do in work health and safety here, within psychosocial risk management, we can help the clients mine their data to look at each of the hazards, to find out where are their hotspots when it comes to psychosocial risk in their workplace, and even hone it down to which working groups? What times? What shifts of work? Which of the 14 psychosocial hazards are issues for them? Because it's very hard to tackle 14 psychosocial hazards at once. So before we walk to do a risk assessment with a client and consultation with them, we need that data. We need those themes. So we can do that data analytics process using and structuring the client's own data.

Then we can facilitate a risk assessment with them and in consultation with them and in compliance with the regulators' requirements to do that. So we do the risk assessment. You look at current controls and you consult around any new controls that confer then minimise the risk. Then we can actually go about helping the client where they need the help to implement those new controls. It sounds trite, but this is a change management project which often can take a couple of years to fully implement. So we might be uplifting policies and procedures consistent with the new controls, we might be training.

Or we might be helping them implement other controls which are maybe more aligned to the actual working environment or the workplace governance and the design of work.

And then finally, what we can do is we can help offices measure and monitor that through reporting. So one of the duties that officers must demonstrate is that they're demonstrating due diligence for health and safety. To do that, they need reports. What do you report on? They should be reporting on the implementation and effectiveness of this control environment so that they know where it's working and where it's not, so they can make good decisions. And so we can help them from end to end, Trent, with that. And along that end to end line, there's legal advice in it. Let me give you an example where there's clear time when legal need to come in on the risk assessment. One of the issues that needs to be considered for a client, for any control for health and safety, is whether or not it's reasonably practicable to implement that new control.

Now, that's a legal consideration as well as it is a practical and operational consideration. So our lawyers can assist with the legal and make sure the client's in a defensive position if ever they are challenged on it by a safety regulator or a court or a judge for that matter. And we can help them with the operational risk requirements of actually is that reasonably practicable to implement here at our workplace? So you can see we can take it from end to end. And back to First Nations people now, well, if they are included, and they ought to be if they're one of the workers or the working groups at risk, we can make sure that those controls relevant to them are in place.

Trent Wallace:

That's amazing to hear and framing it through that lens. I think when I've been yarning with clients about these particular topics, I've noticed that we need to build a level of racial literacy and understanding because people don't understand the state of play for First Nations peoples in the workforce employees and what that looks like. So it's really interesting to think about the collaborative piece in having First Nations expertise operate as almost a conduit between corporate Australia, legal Australia. And really understanding what the effects are and bringing these reports to life through legal legitimacy and controls to mitigate this. So I've been really grateful to work alongside you and watch your work and be inspired by it, Tony. I've been very grateful to see what you've done and the level of care you've taken in this space.

You were one of the first people to show me the real legal risks to this because I was so concerned about the state of play last year and the referendum and seeing what was occurring in the public space and public debate and discourse playing out and the harm it was causing to First Nations peoples from a mental health perspective, who are also members of the economy and the workforce. So it's really important to think about that and how do we serve our communities in a way that will uplift and assist corporate Australia. So rather than viewing this as a really big, hot topic, this is something that we can do to uplift our communities. This is something we can do to uplift Australia.

Tony Morris:

Absolutely, Trent.

Trent Wallace:

Create a safer space for all of us to work and live and enjoy.

Tony Morris:

Yeah. And look, equally back from me, what my team and I appreciate is your lens and your knowledge and experience of First Nations people and what affects them. Because we simply wouldn't know that without you and your input. And so that is why it's really important that we work together and continue, as we will, to not only hear and listen, but understand and then make sure that you're a part of what we're doing here. So one of the things that we are building at the moment is a psychosocial risk maturity model, which provides an indication following a review where a client might sit in the maturity scale of psychosocial risk management. And that's one of the areas I'll get you to review from a First Nations perspective, Trent. Because that's about to be completed and your view on that and input on that will really help us and our clients that need to consider First Nations people within the risk assessment.

Trent Wallace:

Absolutely. I think whilst this is a big piece of work for corporate Australia to undertake and understand, we can do this through a collaborative model, collaborative approach, and just asking for that assistance. I think it's about that first instance of saying, "Hey, I don't actually know the state of play. What can I do?" And that's where we can really step in, I feel, and provide a service that is grounded in racial literacy and cultural safety from a First Nations lens, and also that legal expertise and risk expertise.

Tony Morris:

Absolutely. Thanks, Trent.

Trent Wallace:

Thank you so much for joining me, Tony. I really appreciate your time.

Tony Morris:

I've really enjoyed it. Thank you very much, Trent.

Trent Wallace:

Thank you very much for listening to this episode of Let's Yarn podcast. For more episodes in the Let's Yarn series on ESG Matters at Ashurst, please visit ashurst.com/podcasts. Or alternatively, you can listen to these episodes on your favourite podcast platform. While you're there, please feel free to leave a rating and/or a review. Thanks for listening. Take care.