Substance over symbols needed in applying work H&S law to mental health

My recent PhD research looked at how New Zealand company officers understood and performed their duties relating to mental health, as required by the Health and Safety at Work Act 2015 (HSWA). 

The Act requires company officers to exercise due diligence to ensure the Person Conducting a Business or Undertaking (PCBU – in short, a business or organisation) of which they are an officer complies with its duties and obligations under the Act.  

Participants in my research, who were directors and senior executives of large companies, often expressed uncertainty and ambiguity about the meaning of mental health within the HSWA.  Many felt this uncertainty arose from a lack of expertise in New Zealand’s health and safety workforce, conflicting advice, a lack of clear regulatory guidance and the complexity of risks relating to mental health. 

However,  the analysis showed confusion about the meaning and scope of the duties – both those of officers and those of the PCBU – also arose from other factors. These included a tendency to focus on risks arising from personal circumstances and characteristics of workers – and less on their work, a focus on fixing harm rather than preventing it, and the conflation of operational and reputational risks arising from mental health with risks to workers’ mental health. 

These factors had implications when officers carried out their duties. Instead of focusing on work-related risk, officers were often distracted by workers’ personal lives and characteristics, accepted reactive management strategies rather than preventative ones as constitutive of compliance, and adopted an approach to risk management that emphasised risks to the organisation rather than risks to workers.     

In the face of this ambiguity about the meaning and scope of compliance, officers often relied on various organisational activities, processes and initiatives as ‘symbols’ of the PCBU’s compliance. This reliance occured without examining or ensuring these symbols’ substantive value, or considering their underlying assumptions.

The uncritical acceptance of the link between these symbols and their impact reproduced ingrained myths about the relationship between work and mental health. These myths evaded critical scrutiny and diverted officers away from considering the organisational factors upon which work health and safety law intends to act. 

The research discussed many examples and mechanisms by which this occurred. One example was the value placed in understanding, measuring and responding to psychological harms.  

Fundamentally, such a focus is inconsistent with the overriding object of the work health and safety regulatory regime, which is to prevent work-related harm through the management of risks. Emphasis or reliance on measures of, and responses to, harms may indicate a health and safety strategy based on reaction rather than prevention.  

A focus on psychological harms is also problematic for other reasons. Measuring harm, such as counting the incidence or prevalence of ill-health or the uptake of counselling services, is not the same as identifying hazards and assessing risks arising from the work of the PCBU. 

Psychological harms result from many factors, so a focus on harm rarely helps duty holders understand the relationship between aspects of work and the risk of harm to workers. Changes in rates of reported psychological harm or injury, or rates of counselling service referral or uptake data, often being low in number, may be more accurately attributable to random variation than to actions taken within the organisation to manage risk. 

Nevertheless, harm-related measures and organisational initiatives responding to mental ill-health were often how officers assured themselves they had insight into health and safety risks relating to mental health, and their management.  

To better perform their duties, and to further the object of the law to eliminate and minimise risks, officers must require their health and safety corporate governance framework to provide insight into the relationship between the work carried out by the PCBU and the risk of harm to workers.

Crucially, officers must seek and obtain information which reveals whether the taken-for-granted ways of understanding, anticipating and managing those risks are capable of doing what they are believed to do. To date, despite mental health being a dominant concern of New Zealand business, this has proven difficult. 

It appears current governance frameworks may be neglecting these aspects and leaving it to individual duty holders, with little guidance, to distinguish between compliance responses which simply provide symbolic attention to the law with those that achieve a material impact on the conditions of work that put workers’ health at risk.