Addressing unconscious bias and psychosocial hazards in the workplace

Addressing unconscious bias and psychosocial hazards in the workplace, including via the Victorian Occupational Health and Safety (Psychological Health) Regulations

In March 2025, I presented at the Legalwise Seminars ‘Workplace Law Summit’ on how to address unconscious bias and psychosocial hazards in the workplace. 

This included a detailed analysis of the Supreme Court of Victoria Court of Appeal authority on unconscious bias in the workplace in Austin Health v Tsikos [2023] VSCA 82, where I appeared on behalf of Ms Tsikos as part of her legal team. Among other things, this case law is authority for the proposition that a court can consider evidence of unconscious bias and structural inequality at the workplace and use that evidence to inform decision making when determining claims of unlawful discrimination.  

The presentation further considered the model for the prevention and elimination of psychosocial hazards in the workplace from my PhD thesis titled ‘Regulating to Prevent Workplace Bullying: Options for Reform’. My doctorate analysed a model based on a risk-management, multi-pronged organisational design strategy. Among other things, this model recognises the need to: 

•    identify the precursor factors of the psychosocial hazard in question; 
•    assess the risk that the psychosocial hazard will eventuate from the identified precursor factors; 
•    put measures in place to control the risk of the precursor factors turning into the psychosocial hazards; and
•   monitor and review the effectiveness of the strategies being used to address and manage the precursor factors of psychosocial hazards, so that the workplace’s relevant strategy can be updated as needed. 

The thesis is available via open access here.

The presentation examined in detail the proposed Victorian Occupational Health and Safety (Psychological Health) Regulations, which are scheduled to take effect on 1 December 2025. The proactive approach and compliance obligations in the proposed regulations represent a significant change for many Victorian employers. This includes the obligations that employers will have to identify and control psychosocial hazards, as well as reviewing and revising risk control measures. 

The anticipated financial cost to Victorian employers to implement the proposed regulations is set out in the relevant regulatory impact statement. The regulatory impact statement predicts that the financial cost of the introduction of the proposed regulations will be tens of thousands to hundreds of thousands of dollars for businesses, depending on the size of the organisation.

I am currently advising employers on the implementation of the proposed regulations prior to 1 December 2025, in order to ensure that these employers are prepared for the commencement of the new regime.