A government employer has failed in its attempt to argue that new psychosocial safety regulations make it impossible to comply with WHS duties — a ruling that carries significant implications for organisations across Australia seeking to minimise their obligations under strengthened mental health laws.
The NSW Industrial Relations Commission rejected the employer’s submission that the requirements imposed by the WHS Regulation 2025 were unworkable in practice. The Commission found that the regulations do not create obligations that are impossible to meet, and made clear that complexity or operational difficulty does not excuse a failure to implement controls for psychosocial hazards.
The ruling is significant for a number of reasons. It establishes that the ‘reasonably practicable’ threshold under WHS law does not give employers licence to abandon their duties on the basis that psychosocial hazards are hard to measure or control. It also signals that the Commission is prepared to hold duty holders — including government agencies — to account on psychosocial compliance in the same manner as physical safety obligations.
Since the WHS Regulation 2025 commenced in August 2025, NSW employers have been required to apply the hierarchy of controls to psychosocial risks. This means eliminating hazards where reasonably practicable — through job redesign, workload management, and structural changes to how work is organised — and only then moving to lower-order controls such as training, supervision, or support services.
For office-based employers in particular, the decision is a prompt to take stock of their current approach. Policies and EAP referrals, while useful, do not satisfy the primary duty of care if higher-order controls have not first been considered and applied.
WHS professionals advise employers to document their psychosocial risk assessments thoroughly, demonstrate active consultation with workers, and show that control measures go beyond awareness initiatives to address the root causes of psychological harm in the workplace.
