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.
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 and that it is prohibited to discriminate on the basis of disability.
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. Safe Work Australia reports that about $543 million is paid in workers’ compensation for work-related mental health conditions each year.
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.
 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>.
 United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 23 (2016) . See also Fair Work Act 2009 (Cth) s 61(1).
 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.
 Work Health and Safety Act 2011 (Cth) s 19; Work Health and Safety Act 2011 (NSW) s 19.
 Safe Work Australia, “Mental Health” (14 June 2018) < https://www.safeworkaustralia.gov.au/topic/mental-health>.