STRUCTURAL CHANGE IS NEEDED TO ADDRESS MENTAL ILL HEALTH AMONGST LAWYERS

A recent inquiry by Victoria’s workplace health and safety regulator into employee fatigue at a top-tier law firm drew public attention to mental health and safety risks in the legal profession.[1]

It was timely that the Productivity Commission held an inquiry into mental ill health.

The NSW Young Lawyers Human Rights Committee (“HRC”) made a submission to the inquiry on 19 April 2019. The submission outlined relevant aspects of human rights law, including that everyone has the right to safe and healthy working conditions[2] and that it is prohibited to discriminate on the basis of disability.[3]    

The submission noted that a person conducting a business or undertaking owes a primary duty of care to “ensure, so far as is reasonably practicable, the health and safety” of their workers.[4] Safe Work Australia reports that about $543 million is paid in workers’ compensation for work-related mental health conditions each year.[5]  

The HRC submitted that structural change is needed, identifying that the following structural factors contribute to mental ill health amongst lawyers:

  • Entrenched stigma around mental ill health;
     
  • The absence or under-resourcing of employee wellbeing programs in some legal workplaces;
     
  • A culture of overwork (whereby working significantly more than a standard 38-hour-week is seen as normal and even desirable), presenteeism (whereby attendance at work is valued over other objectives, such as productivity or work-life balance) and martyrdom (whereby suffering at work is valued as a sign of commitment to the job);
     
  • A “stiff upper lip” mentality (whereby discussion of difficult or negative emotions is implicitly or explicitly discouraged);
     
  • The idea that poor, unjust or illegal working conditions are a rite of passage that young lawyers must simply endure;
     
  • The growth of insecure work, including temporary and casual contracts; and
     
  • Bullying, discrimination and harassment (including sexual harassment).
     

The HRC made a number of recommendations in the submission, including that:

  • Australian governments should conduct a review of employment practices for consistency with the right to a mentally safe and healthy work environment;
     
  • Professional associations should focus on the structural factors that create and exacerbate mental ill health;
     
  • Employers should conduct regular reviews of their employment practices to identify risks to mental health; and
     
  • Legal organisations should become signatories to and implement the Tristan Jepson Memorial Foundation Workplace Wellbeing: Best Practice Guidelines to the Legal Profession.

The submission is available on the Productivity Commission’s website.

 

[1] Sarah Thompson, Jemima Whyte and David Marin-Guzman, “King & Wood Mallesons investigated for overworking employees”, Australian Financial Review (12 October 2018) <https://www.afr.com/business/king--wood-mallesonsinvestigated-for-overworking-employees-20181011-h16hei>.

[2] United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 23 (2016) [2]. See also Fair Work Act 2009 (Cth) s 61(1).

[3] Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, 999 UNTS 3 (entered into force 3 May 2008) art 5(1); Disability Discrimination Act 1992 (Cth) pt 2 div 1; Anti-Discrimination Act 1977 (NSW) pt 4A div 2.

[4] Work Health and Safety Act 2011 (Cth) s 19; Work Health and Safety Act 2011 (NSW) s 19.

[5] Safe Work Australia, “Mental Health” (14 June 2018) < https://www.safeworkaustralia.gov.au/topic/mental-health>.