What are psychosocial hazards?

New South Wales workplace health and safety law is governed primarily by the Work Health and Safety Act 2011 (NSW) and the accompanying Work Health and Safety Regulation.

In recent years, psychosocial hazards have become a major focus of WHS enforcement across Australia, including in NSW.

What are psychosocial hazards?

Psychosocial hazards are workplace factors that can cause psychological harm, emotional distress, anxiety, depression, trauma, or physical injury arising from psychological stress.

They are treated under WHS law similarly to physical hazards. Common psychosocial hazards include bullying, harassment, aggression and violence, unreasonable workloads, role conflict, poor workplace support, exposure to traumatic events, fatigue, remote or isolated work, poor organisational culture, and repeated exposure to conflict or hostility.

Legal duties under NSW WHS law

Under the WHS Act, a Person Conducting a Business or Undertaking (PCBU) including councils, businesses and organisations has a duty to ensure, so far as reasonably practicable for the health and safety of workers, including psychological health.

This means employers must identify psychosocial hazards, assess risks, implement controls, review whether controls are effective.

The duty applies not only to employees, but can also extend to contractors, volunteers, councillors in some contexts and others at the workplace.

The “reasonably practicable” test

A key concept in NSW WHS law is whether actions are “reasonably practicable”.

Courts consider likelihood of harm, seriousness of harm, what the organisation knew or should reasonably have known, available ways to eliminate or minimise risk and cost relative to risk.

Importantly inconvenience, embarrassment, political discomfort, criticism, or media scrutiny are not automatically WHS risks simply because they cause stress or discomfort.

There generally needs to be a reasonably foreseeable risk of actual psychological injury.

Psychosocial hazards and public institutions

This becomes complex in environments like local councils, politics, media scrutiny, public meetings and governance disputes.

Public officials are expected to operate within environments involving criticism, scrutiny, disagreement, public accountability and reputational pressure.

Regulators generally distinguish between legitimate public scrutiny and disagreement and unlawful bullying, harassment, threats or targeted harmful conduct.

WHS law does NOT automatically override democratic transparency

One of the key tensions emerging across Australia is the use of WHS language in public governance settings.

A growing debate exists around whether WHS concerns are sometimes being used appropriately to protect workers, or whether WHS frameworks can unintentionally be expanded into areas involving public criticism, journalism or political accountability.

In practice, organisations must balance psychological safety, public transparency, free communication, procedural fairness and democratic accountability.

For example banning a journalist, excluding members of the public, restricting access to meetings or limiting communication would generally need to be based on evidence-based risk assessments, not merely disagreement, criticism or discomfort.

SafeWork NSW and psychosocial enforcement

SafeWork NSW has increasingly focused on psychosocial hazards.

The regulator expects organisations to proactively manage risks, document assessments, consult workers and demonstrate proportional responses.

Poorly justified or inconsistent WHS responses can themselves create governance and legal risks.

Common legal grey areas

Some of the most disputed areas include when criticism becomes bullying, social media commentary, public accusations, media attention, repeated complaints, political conflict, activist behaviour and public participation in government processes.

Courts and regulators usually assess pattern of conduct, reasonableness, proportionality, intent, foreseeability of harm, and whether conduct was part of legitimate public discourse.

Key principle

Under NSW law, psychosocial safety is real and important but WHS legislation is not generally intended to shield public bodies or officials from legitimate scrutiny, criticism, journalism or democratic participation.