The dialogue around work health and safety has shifted with the evolution of the employment landscape. This has led to the growing recognition of psychosocial hazards and a wider definition of a ‘safe’ workplace. SafeWork NSW and other Australian Safety Regulators define these hazards as ‘anything in the design or management of work that increases the risk of work-related stress.’
Common risk factors include job demands, inadequate support, poor workplace relationships and poor organisational justice. It is important to note that SafeWork NSW suggests that prolonged experiences of stress can cause severe injury or illness to an individual.
Under section 19 of the Work Health and Safety Act 2011 (NSW), a Person Conducting a Business or Undertaking (PCBU) owes a primary duty of care to their workers whilst the workers are at work in the business or undertaking. Workplace includes any place a worker goes or is likely to be, while at work.
In the recent case of SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSW DC 48, the court recognised that ensuring the safety of workers in a workplace, pursuant to this duty, includes the ‘control of exposure to psychological hazards in the workplace.’
A SafeWork NSW investigation was triggered by the death of two nurses employed by Western Sydney Local Health District (WSLHD). Whilst it was not alleged that WSLHD was responsible for their deaths, it did raise the question of whether the employer’s conduct during the clinical review investigation process exposed the two workers to a risk to their health and safety.
The preliminary judgement of the Court made clear that WSLHD did have policies in place to manage psychosocial hazards associated with disciplinary processes, however it is alleged by SafeWork that it was the non-compliance with the WSLHD policies that gave rise to a risk of physical or psychological harm to the nurses. The explicit recognition of poor organisational justice in this prosecution case is a pivotal point for workplace health and safety discussions.
Another SafeWork NSW psychosocial prosecution was commenced against a Youth Care Charity in NSW. In 2022, the employer was prosecuted for a breach of section 19 and 32 of Work Health and Safety Act 2011 (NSW). It was alleged that its failure to comply with its health and safety duty, exposed the workers to a risk of serious illness or injury, from the young persons in its care.
The Youth Care Charity provides residential and support services for young people in the care of the state. Their residential facilities are staffed with qualified direct care workers, rostered on a shift-work basis, and managing high-risk young persons in the care home. A SafeWork investigation arose following the assault of two female staff members by residents, resulting in psychological disorders for the workers involved.
The Youth Care Charity took the immediate step, that was not simple or straightforward, to engage male-only direct care workers to manage the young persons in the care home. The Court imposed a penalty of $300,000 against the charity.
Further psychological steps
To manage psychosocial risks in the workplace, SafeWork suggests the following process:
- Identification of the psychosocial hazards.
- Assessment of risks including consideration of harm and likelihood of occurrence.
- Implementation of control measures.
- Continued review of psychosocial hazards and effectiveness of control measures.
Further, on 18 March 2025, the NSW government proposed a reform model which would require those who have suffered a workplace injury of a psychological nature, to first apply for anti-bullying orders, to later be eligible for a workers compensation claim. This reform also seeks to have a preventative effect with the aim of lowering the prevalence of psychological injuries.
HWL Ebsworth Lawyers will provide further comment on passage of this proposed legislation.
This article was written by Greg McCann, Partner and Trish Nguyen, Law Graduate.
