The landscape of Work Health and Safety (“WHS”) in Australia has shifted significantly, with psychosocial hazards now given the same legal weight as physical hazards.

These regulations (the “Psychosocial WHS Regulations”) mean that employers now have a proactive, positive duty to prevent mental harm, rather than just reacting once a worker suffers psychological injury. Failure to act according to this duty carries increased penalties.

Employers’ core legal duty.

Under the Psychosocial WHS Regulations (adopted in all states, other than Victoria), an employer must:

• Identify psychosocial hazards.
• Eliminate the risks, or if not possible, minimise them as far as is reasonably practicable.
• Maintain and review control measures.

Note that this is a proactive duty as, an employer, you cannot simply wait for a worker to make a complaint. Employers are expected to have a risk register for mental health just as they would for physical safety.

Who is protected?

The Psychosocial WHS Regulations protect not only employees but all workers.

The definition of “worker” covers:

• Direct employees: full-time, part-time and casual.
• Contractors and subcontractors: including the people they hire to work for the employer.
• Labour hire staff: people sent to the employer by an agency.
• Apprentices and trainees: even if they are just with the employer for a week.
• Work experience students and volunteers: even if they are unpaid.

The duty to contractors and the contractual chain.

As the “Person Conducting a Business or Undertaking” (“PCBU”), employers owe contractors the same primary duty of care as they do to their employees.

If you are an employer that hires a freelance worker, a contract bookkeeper, or even a IT contractor to fix your servers, you are responsible for their health and safety, including psychosocial safety, while they are working for you. You cannot contract out of this responsibility.

In practice, this might translate in overlapping duties – for example:

If you hire a cleaning contractor through a cleaning company, your duty is to ensure that your premises are safe for the cleaner.

At the same time, the cleaning company has a duty to ensure that its staff are trained and have safe chemicals.

Under the law, both you and the cleaning company share the duty, meaning that you will be required to consult, cooperate, and coordinate with the cleaning company to ensure that the worker is safe.

As an employer, you must therefore include contractors and subcontractors in your psychosocial risk assessments.

The meaning of “psychosocial hazard”.

The regulations define “psychosocial hazard” as anything in the design or management of work that may cause a stress response leading to psychological or physical harm.

Common examples include:

• Job demands: sustained high pressure, excessive hours, or unmanageable workload.
• Low job control: little say in how work is done, or having restricted autonomy.
• Poor support: lack of resources or guidance from supervisors.
• Lack of role clarity: frequent changes to tasks, or conflicting instructions.
• Poor workplace relationships: bullying, harassment, or toxic culture.
• Remote/isolated work: working alone or without social support.

The “reasonably practicable” test.

The law doesn’t expect employers to eliminate stress entirely as this may not be practicable in most cases, but it expects them to manage it.

To determine what is “reasonably practicable,” the regulator looks at:

• The likelihood of the harm occurring.
• The degree of harm (e.g., burnout vs. clinical depression).
• What employers/managers knew, or should have known, about the risk.
• The availability and cost of ways to eliminate the risk.

Mandatory reporting and penalties.

Failure to manage these risks is a breach of WHS law, not just employment law. In practical terms, this means:

• Heavy fines: employers and individual officers can face significant fines.
• Provisional improvement notices (PINs): inspectors can issue notices requiring employers to change how they manage staff.
• Workers compensation: it is significantly easier now for employees to claim workers compensation for psychological injury if the employer cannot show that it had a risk management plan in place.

Action plan for employers

• Consultation: talk to your workers about what stresses them out, and document these meetings.
• Risk assessment: create a simple document identifying hazards (e.g., “high workload during EOFY”) and your plan to fix them (e.g., “hiring additional personnel” or “flexible deadlines”).
• Policy: update your WHS policy to explicitly include psychosocial safety.
• Training: ensure that anyone in a managerial or supervisory role understands how to spot and deal with signs of burnout.

If you or your company are affected by this or another an actual or potential WHS or employment matter, get in touch to get Praetorium Law to help.

email: info@praetoriumlaw.com

Tel: 0410 752 667