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WHS Harmonisation in Australia: Why It Matters and What’s Still Broken
March 9, 2026
Icare NSW and SIRA: what the 2025 Parliamentary Report actually found?
March 12, 2026
If I ask WHS consultants at HSE Direct or ten safety managers across Australia whether they must apply the hierarchy of controls to psychosocial hazards, and I will get ten different answers. Some of them will be wrong, and the consequences of getting it wrong are escalating fast.
Mental health conditions now account for 10.5% of all serious workers compensation claims in Australia, a 97.3% increase from 2012-13. The median time lost for a mental health claim is more than four times greater than for a physical injury, and the median compensation paid is more than three times higher. Courts are convicting employers. Regulators are prosecuting. And the legal framework governing how you must manage psychosocial risks differs substantially depending on which state or territory your workers are in.
This is one of the most consequential and least understood regulatory splits in Australian WHS law right now.
What Are Psychosocial Hazards?
Before getting into the jurisdictional divide, it helps to be precise about what the law is actually referring to.
Under the model Work Health and Safety laws, psychosocial hazards are defined as aspects of work and the work environment that have the potential to cause psychological or physical harm. They are not simply stress, and they are not limited to mental illness. The Safe Work Australia Model Code of Practice: Managing Psychosocial Hazards at Work identifies 17 distinct categories:
- Job demands (high or low workload, time pressure, emotional demands)
- Low job control
- Poor support from supervisors or colleagues
- Poor workplace relationships
- Low role clarity
- Poor organisational change management
- Inadequate reward and recognition
- Poor organisational justice
- Traumatic events or material
- Remote or isolated work
- Poor physical environment
- Violence and aggression
- Bullying
- Harassment including sexual harassment
- Conflict or poor workplace relationships and interactions
- Low support for return to work
- Overlap of work and home demands
The Commonwealth Code of Practice, updated in November 2024, goes further than any other Australian jurisdiction, introducing three additional psychosocial hazards not covered by state-based codes: fatigue, job insecurity, and intrusive surveillance. These additions reflect the realities of gig work, algorithmic management, and always-on digital workplaces. See Comcare’s regulatory guide on psychosocial hazards for the full current Commonwealth position.
Each of these categories is a hazard that can give rise to a workers compensation claim, a regulator investigation, a prosecution, or in the most serious cases, a charge of gross negligence under an industrial manslaughter offence.
The Hierarchy of Controls: A Quick Refresher
The hierarchy of controls is the core risk management framework in Australian WHS law. It works by ranking control measures from most to least effective, requiring duty holders to work down the hierarchy only when higher-order controls are not reasonably practicable:
- Elimination – remove the hazard entirely (redesign the work, remove the task)
- Substitution – replace the hazard with something less harmful
- Isolation – separate the worker from the hazard
- Engineering controls – physical changes to plant, equipment or systems
- Administrative controls – changes to how work is done (policies, procedures, supervision, training)
- Personal protective equipment – the last resort
In physical hazard management, this framework is well understood and consistently applied across all jurisdictions. A safety manager dealing with noise, falls or chemical exposure knows to start at elimination, not PPE.
For psychosocial hazards, applying the same logic means starting with job redesign, reducing workloads, changing reporting structures or eliminating traumatic work exposure before reaching for an Employee Assistance Program (EAP) or a resilience training session. Those lower-order administrative controls are still relevant, but they cannot be the primary or only measure.
The problem is that not all Australian jurisdictions legally require this approach.
The Jurisdictional Split: Who Requires the Hierarchy and Who Does Not
This is where the legal landscape gets fragmented, and where the risk of non-compliance bites hardest for organisations operating nationally.
Through careful analysis of WHS regulations across all Australian jurisdictions, the following picture emerges:
| Jurisdiction | Hierarchy of Controls Required for Psychosocial Hazards? | Regulatory Reference | Notes |
| Commonwealth | YES | WHS Regulations 2011, regs 55A-55D | Also includes fatigue, job insecurity, intrusive surveillance in Code |
| ACT | YES | ACT WHS Regulations, reg 55C | Hierarchy mandatory since 2023 amendments |
| Northern Territory | YES | NT WHS Regulations, amended 2023 | Mirrors Commonwealth approach |
| Queensland | YES | QLD WHS Regulations, regs 226A, 226B, 226C | Includes requirement to document risk assessment |
| South Australia | YES | SA WHS (Psychosocial Risks) Amendment Regulations 2023 | Hierarchy applied; regulations require consideration of all relevant matters |
| New South Wales | YES | WHS Regulation 2025, sections 55C and 55D | Commenced August 2025; hierarchy now mandatory |
| Victoria | YES (modified) | OHS (Psychosocial Risks) Amendment Regulations 2025 | Modified hierarchy from 1 December 2025; training cannot be the predominant control |
| Western Australia | NO | WA WHS Regulations 2022 | Hierarchy not mandated for psychosocial risks under reg 55 |
| Tasmania | NO | TAS WHS Regulations | Model position retained; no hierarchy requirement for psychosocial risks |
The model WHS Regulations, on which Western Australia and Tasmania base their position, expressly state that psychosocial risks do not have to be managed in accordance with the hierarchy of controls. This was a deliberate choice in the original drafting, reflecting the view that psychosocial risk management requires flexibility not easily captured in a prescriptive hierarchy.
Every other jurisdiction has since decided that flexibility was producing inadequate outcomes and has moved to mandate the hierarchy.
For organisations with operations in Western Australia or Tasmania alongside other states, this creates a genuine compliance bifurcation. Your WHS management system for psychosocial risks cannot simply be applied uniformly across all sites.
Why This Split Matters in Practice
The Administrative Controls Trap
In jurisdictions where the hierarchy is not mandated, many employers default to what are essentially Category 5 controls: policies, EAP services, mental health first aid training, and awareness campaigns. These are legitimate supporting measures, but they address the worker’s response to hazards rather than the hazards themselves.
In jurisdictions where the hierarchy DOES applies, this approach is legally insufficient if higher-order controls were reasonably practicable. A regulator investigating a psychosocial claim in New South Wales, Queensland or South Australia will ask whether the PCBU considered eliminating or redesigning the work before reaching for a wellbeing program.
The critical signal from recent case law is that courts are asking the same question.
Victoria’s Modified Hierarchy: A New Standard
Victoria’s Occupational Health and Safety (Psychosocial Risks) Amendment Regulations, which commenced 1 December 2025, introduce what the government describes as a “modified hierarchy” for psychosocial risks. The modification is significant: information, instruction or training can only be used exclusively if other measures are not reasonably practicable, and where a combination of controls is used, training must not be the predominant measure.
This directly targets the common PCBU approach of bolting an EAP and a mental health training program onto an unchanged workplace and calling the hazard “managed.” Under the Victorian regulations, that approach is now explicitly non-compliant if other controls were reasonably practicable.
See WorkSafe Victoria’s prosecution result summaries for current enforcement activity.
New South Wales: Sections 55C and 55D Are Now in Force
NSW’s WHS Regulation 2025 commenced in August 2025 and represents a significant tightening of the psychosocial risk management framework. Section 55C explicitly requires PCBUs to apply the hierarchy of control measures (regulation 36) to psychosocial risks where elimination is not reasonably practicable. Section 55D requires PCBUs to have regard to specific matters when controlling psychosocial risks, including:
- The duration, frequency and severity of exposure
- How the hazard may interact with other hazards at the workplace
- The design of work, including job demands, job control and the work environment
- Consultation with workers about the hazards they are exposed to
The SafeWork NSW Code of Practice: Managing Psychosocial Hazards at Work provides the practical guidance framework that sits alongside these regulatory requirements. In NSW, failure to comply with a code or provide an equivalent level of protection is now a Category 3 offence under the 2025 WHS Regulation amendments.
What the Courts Have Said: Cases That Defined the Obligations
Court Services Victoria (2023): The Landmark Psychosocial Conviction
The most significant psychosocial hazard conviction in Australian WHS history to date was handed down at the Melbourne Magistrates’ Court on 19 October 2023. Court Services Victoria (CSV), the entity responsible for operating Victoria’s court system, was convicted and fined $379,157 under section 21(1) of the Occupational Health and Safety Act 2004 (Vic) for failing to provide and maintain a safe working environment.
The facts were damaging. Between 2015 and 2018, workers at the Coroners Court of Victoria were exposed to multiple concurrent psychosocial hazards: high workloads requiring staff to perform the duties of two or three people simultaneously, exposure to traumatic materials including deceased persons and post-mortem content, poor workplace relationships, bullying, verbal abuse, intimidation, and inadequate management response to repeated complaints.
In September 2018, an in-house lawyer, Jessica Wilby, died by suicide after being diagnosed with work-related major depressive disorder and insomnia. She had previously raised concerns about her workload and received no adequate response.
The Magistrate stated the gravity of the offending was significant, that the culpability and degree of responsibility of CSV was high, and that he would have imposed a higher penalty if the Magistrates’ Court’s jurisdiction allowed it. CSV admitted it had failed to take any adequate steps to identify or assess psychosocial risks to the health of workers.
This case is available through the WorkSafe Victoria prosecution summaries database. The legal analysis is available at KWM’s commentary.
Key lessons from this case:
- Failing to identify psychosocial hazards is itself a breach, independent of whether harm results
- Organisations must have a documented process for identifying, assessing and controlling psychosocial risks
- Tolerating a toxic workplace culture over years, despite complaints, is strong evidence of systemic failure
- The fine was the maximum the court could impose; the Magistrate expressly would have gone higher
SafeWork NSW v Western Sydney Local Health District (2022-2025)
In 2022, SafeWork NSW commenced prosecution against Western Sydney Local Health District (WSLHD) alleging failure to manage psychosocial risks during a clinical review investigation of two nurses. Both nurses passed away in the months following the investigation. SafeWork alleged WSLHD had failed to apply its own policies during the investigation, exposing the nurses to psychosocial hazards arising from poor organisational justice.
The prosecution was withdrawn in March 2025 after WSLHD successfully objected to expert evidence. However, the preliminary findings of the District Court before withdrawal are instructive for all PCBUs. The Court found that:
- Workplace investigations and disciplinary processes can constitute psychosocial hazards
- Employees’ subjective statements about feeling stressed are relevant evidence in assessing whether a PCBU breached its duty
- Causing stress through a legitimate process is not automatically a breach, but the way that process is conducted can be
The case is a clear signal that HR processes, performance management, disciplinary procedures and grievance handling are now within scope of psychosocial hazard management. They are not protected from scrutiny because they are “normal management actions.”
WorkSafe WA v Department of Justice (2024)
In late 2024, WorkSafe WA commenced its first psychosocial prosecution under the Work Health and Safety Act 2020 (WA). The Department of Justice was charged with failing to provide and maintain a safe working environment at Bunbury Regional Prison, with allegations including repeated exposure of prison officers to sexual harassment, bullying, intimidation and threats.
An improvement notice had been issued in March 2023. WorkSafe alleged the Department failed to comply even after being granted an extension. This case is significant because it demonstrates that Western Australian regulators are actively enforcing psychosocial obligations despite the absence of a mandatory hierarchy requirement under the WA Regulations. See OHS Representative reporting on the WA prosecution for further background.
For further reading on how prosecution case law shapes WHS compliance obligations, see our analysis of chemical safety failures and lessons from recent cases.
The 17 Psychosocial Hazards: Are You Managing All of Them?
Most organisations focus on the obvious ones: bullying, harassment, and workload. But regulatory scrutiny is increasingly extending to the less visible hazards in the list.
Job insecurity is now a formal psychosocial hazard under the Commonwealth Code. Ongoing contract uncertainty, restructuring without communication, and use of short-term contracts in high-demand roles all give rise to psychosocial risk. PCBUs covered by Commonwealth jurisdiction (federal public sector, federal courts, Comcare scheme employers) must address this.
Intrusive surveillance is similarly recognised in the Commonwealth Code. Algorithmic monitoring of keystrokes, biometric tracking, constant location monitoring and similar practices can constitute psychosocial hazards. The 2024 Senate Select Committee on Adopting Artificial Intelligence explicitly recommended extending WHS laws to cover AI-related workplace risks. The 2025 Victorian Inquiry into Workplace Surveillance made the same connection at state level.
Remote and isolated work is a psychosocial hazard directly relevant to construction, mining, and renewable energy operations. Workers in remote locations face elevated exposure to multiple hazards simultaneously: isolation, poor support, unpredictable workloads, and limited access to emergency assistance. This intersection of psychosocial and physical risk is particularly acute for solar farm operations, where long-term site-based workers may be isolated for extended periods.
For a detailed breakdown of how psychosocial hazards interact with physical risk in high-hazard industries, visit HSE Direct’s WHS resources page or contact our team through our WHS services page.
The Workers Compensation Data: Why This Is Escalating
The financial scale of psychosocial harm should be understood clearly by every PCBU and officer:
- Mental health conditions account for 10.5% of all serious workers compensation claims in Australia (2022-23), up 97.3% from 2012-13
- The median time lost for a mental health claim exceeds 34.2 working weeks, compared to 8.0 weeks for physical injuries
- The median compensation paid for mental health conditions is more than three times greater than for physical injuries
- The highest proportion of mental health claims are attributed to work-related harassment and bullying (27.5%), work pressure (25.2%) and workplace violence and aggression (16.4%)
These figures come from Safe Work Australia’s psychological health in Australian workplaces report and the workers compensation data on psychological injuries.
For a PCBU with 100 employees, a single mental health compensation claim costs an average of more than three times the amount of a physical injury claim, before accounting for lost productivity, investigation costs, legal fees and the reputational impact of regulator scrutiny.
The academic literature on this is also developing. See the AustLII article Liability for Workplace Psychiatric Injury in Australia for the evolving negligence law framework, and NSW Workers Compensation: Claims for Psychological Injury for the compensation law perspective.
Building a Compliant Psychosocial Risk Management System
Given the jurisdictional differences and the enforcement trajectory, what does a legally defensible psychosocial risk management system look like in 2026?
Step 1: Identify Your Jurisdictional Obligations First
Before designing any system, identify every jurisdiction in which your workers are employed or perform work. If you have workers in New South Wales, Queensland, South Australia, the ACT, Northern Territory or Commonwealth-covered workplaces, you must apply the hierarchy of controls. If you also have workers in Western Australia or Tasmania, you do not have a mandatory hierarchy obligation in those jurisdictions, but you remain obligated to manage the risks so far as reasonably practicable and enforcement is happening regardless.
Do not design a lowest-common-denominator system. Design to the highest applicable standard and apply it uniformly.
Step 2: Conduct a Genuine Hazard Identification Exercise
Use the full list of 17 psychosocial hazards as your baseline. Do not limit identification to complaints made. Use People at Work assessments or equivalent validated tools, confidential worker interviews, analysis of turnover, absenteeism and leave data, incident reports and near-miss data.
See Safe Work Australia’s job demands guidance for practical identification approaches for individual hazard categories.
Step 3: Apply Higher-Order Controls Before Administrative Ones
This is where most organisations fail. The Court Services Victoria case was not about the absence of an EAP. CSV likely had an EAP. The breach was the failure to identify hazards and redesign the work. Higher-order controls for psychosocial hazards include:
- Restructuring roles to remove excessive demands (elimination/substitution)
- Redesigning reporting lines to address poor organisational justice
- Reducing team sizes or span of control to improve support
- Changing rostering to address shift work and fatigue (particularly relevant to construction, mining and healthcare)
- Physically redesigning workspaces to reduce isolation
Administrative controls, including policies, EAPs and training, are supporting measures, not primary controls where higher-order options are reasonably practicable.
Step 4: Document Everything
The absence of documentation was fatal in the Court Services Victoria case. CSV admitted it had not taken any adequate steps to identify or assess psychosocial risks. In a regulatory investigation or prosecution, the question will be: what did you do, and when did you do it? Your only answer is documentation.
Risk assessments, meeting minutes, action logs, corrective action registers, review dates and worker consultation records are your evidence of due diligence.
Step 5: Conduct Regular Reviews
Section 55D of the NSW WHS Regulation 2025, and equivalent provisions in other mandating jurisdictions, require PCBUs to review and revise controls when they are no longer adequate. The law explicitly contemplates that psychosocial hazards change over time, and that controls implemented today may become inadequate as work changes.
Review your psychosocial risk register at a minimum annually, after significant organisational change, after any incident or near-miss involving psychosocial harm, and when workers raise concerns.
How the Biological Hazards Code Interacts With Psychosocial Risk
It is worth noting that psychosocial hazards do not sit in isolation from other emerging regulatory obligations. The Biological Hazards Code of Practice 2026 introduces control obligations for biological exposures that can have both physical and psychosocial dimensions, particularly in healthcare, waste management and emergency services settings. Workers exposed to traumatic biological incidents face compound psychosocial risk from the exposure itself and from the manner in which their organisation responds to it.
Similarly, the right of entry framework intersects with psychosocial risk in workplaces where unions are active. Where workers are experiencing psychosocial hazards and have raised concerns with a union, the regulator and the employer may all be dealing with those concerns simultaneously. See our article on WHS right of entry in construction for practical guidance on managing this intersection.
Why You Need a Specialist: The Complexity Is Not Going Away
The psychosocial regulatory landscape in 2026 is genuinely complex. The jurisdictional split on the hierarchy of controls creates different legal obligations for the same organisation depending on where its workers are located. The Commonwealth Code’s three new hazards apply to a specific category of employer but signal the direction all codes are likely to travel. Case law is developing rapidly, with courts in multiple jurisdictions now imposing significant fines and articulating clear expectations.
Getting psychosocial risk management right requires more than a policy update or a mental health awareness week. It requires a structured hazard identification process, a documented risk assessment, genuinely higher-order controls where they are reasonably practicable, evidence of worker consultation, and regular review.
HSE Direct provides specialist WHS auditing services specifically designed to assess and close gaps in psychosocial risk management systems across single and multi-jurisdictional operations. Our WHS services cover the full compliance lifecycle from hazard identification through to system development, incident response and regulatory engagement.
Further Resources
- Safe Work Australia: Psychosocial Hazards
- Safe Work Australia: Model Code of Practice Managing Psychosocial Hazards
- Comcare: Managing Psychosocial Hazards Regulatory Guide
- SafeWork NSW: Code of Practice Managing Psychosocial Hazards
- WorkSafe Victoria: Psychosocial Regulations 2025
- Safe Work Australia: Workers Compensation Psychological Injuries
- Safe Work Australia: Job Demands Guidance
- AustLII: Liability for Workplace Psychiatric Injury in Australia
- AustLII: NSW Workers Compensation Claims for Psychological Injury
- Comcare: WHS Laws Are Changing
- HSE Direct WHS Resources
- HSE Direct WHS Audits
- HSE Direct WHS Services
This article was last updated March 2026. WHS legislation governing psychosocial risks is subject to ongoing change across all Australian jurisdictions. Always verify current regulatory requirements with the relevant regulator in your jurisdiction before making compliance decisions. If your organisation needs specialist support navigating psychosocial risk obligations, contact the HSE Direct team.
