What Two Real Enforcement Cases Reveal About Managing Psychosocial Hazards in Australia

“We Have an EAP, We’re Covered”: Why That No Longer Meets Your Psychosocial Hazard Duty

Meta description: An EAP alone doesn’t meet your psychosocial hazard duty. Two real WHS prosecutions show what regulators actually expect, and how to close the gap.

It’s one of the most common things Skodel’s Sam McKenzie hears when she sits down with executive teams: “We’ve got an EAP in place, so we think we’re covered.” It’s an understandable assumption, and, under current Australian WHS law, an incorrect one.

In a recent myosh Academy session, Skodel’s Ian Fagan (co-founder and director) and Sam McKenzie (Director of Psychosocial Compliance & Engagement, and a former Lead Counsel at WorkSafe Victoria) joined myosh’s Kristina Shields to unpack what’s actually changed in psychosocial hazard law, why an Employee Assistance Program doesn’t close the gap on its own, and what two real enforcement cases reveal about what regulators expect in practice. Here’s what safety and HSEQ leaders need to take from it.

An EAP is a corrective control, not a preventative one

Since 2015, every Australian jurisdiction has progressively mandated the identification, assessment and control of psychosocial hazards, the same legal duty that applies to physical hazards. As Fagan explained, when regulators across the country sat down to assess where an EAP actually fits in the hierarchy of controls, the consensus was clear: it sits low down, because its purpose is to help someone after harm has occurred, not to prevent that harm from happening in the first place.

“[An EAP’s] main intention is not to reduce or eliminate harm, more so to mitigate harm once it’s taken place.”, Ian Fagan, Skodel

That distinction matters because the legal duty is about work design, job demands, control, support, role clarity, how change is managed, not about individual resilience or “toughening up.” Employers must identify, assess, control and review psychosocial hazards, and an EAP addresses none of those four steps directly.

A practical way to assess any of the 17 hazards

The Safe Work Australia Model Code of Practice names 17 psychosocial hazards, from high job demands and low job control through to bullying, fatigue and poor psychosocial safety climate. Rather than trying to tackle all 17 at once, Skodel uses a simple two question method for each one: first, an exposure question (for example, “over the last three months, have you had the tools and resources to do your job effectively?”), and second, an impact question (to what extent has this affected your wellbeing at work?). Plotting exposure against impact shows which hazards are a genuine priority for a given workforce, and, crucially, the same method works again after controls are introduced, to prove whether exposure is actually coming down.

Fagan also flagged a category of “predictable moments” worth watching for: restructures, performance management, return to work processes, changes of manager, and promotion decisions. “If it’s predictable, then the response to it should be too”, meaning these moments deserve a planned approach, not an assumption that they’ll sort themselves out.

What this means in practice

Two real cases from the session make the stakes concrete. In WorkSafe Victoria v Printco (Aust) Pty Ltd, a signage company’s bullying policy existed only on paper, no reporting information, no definitions, no training, and its director was personally fined $20,000 alongside the $20,000 company fine. In Comcare v Department of Defence, the first ever Commonwealth conviction for a psychosocial risk failure, a technician’s supervisors knew he wasn’t coping but had never been trained to recognise that a performance management process could itself be a psychosocial hazard; the case resulted in a $188,000 fine and an adverse publicity order.

The pattern in both cases was the same: a policy that existed but was never operationalised. As McKenzie put it, describing a conversation with one company’s board about the Comcare case: “$188,000 is not very much money to us. If anything, the reputational risk is a lot greater for us, but even bigger than that is that if that occurs at our workplace, I will struggle to sleep at night.” That’s the shift happening in boardrooms: psychosocial risk is increasingly a leadership issue, not just a compliance one.

This is where the identify, assess, act, monitor system of work comes in. Skodel’s role is to identify and assess, surveying the workforce, scoring exposure and impact, and providing a defensible evidence base, while myosh’s platform supports the “act” step, helping businesses turn that evidence into practical control measures suited to their operations, before the cycle closes with ongoing monitoring to prove those controls are actually working.

Key Takeaways

• An EAP is a corrective control, not a preventative one, it doesn’t satisfy the legal duty to identify, assess, control and review psychosocial hazards on its own

• Every Australian jurisdiction now mandates action on psychosocial hazards, with Victoria’s standalone regulations and NSWs amended WHS Regulation among the most recent developments

• A simple exposure and impact question pair can be used to assess any of the 17 named hazards, and to prove whether controls are working overtime

• “Predictable moments”, restructures, performance management, return to work, deserve a planned response, not an assumption they’ll resolve themselves

• Two real prosecutions show regulators expect a policy to be applied and followed in practice, not just written down, and personal director liability is a real outcome, not a theoretical one

Watch the Full Session

This article only scratches the surface of what Ian and Sam covered, including a full walkthrough of both enforcement cases and the state-by-state regulatory timeline.  

This session is part of the myosh Academy free weekly webinar series. Explore our full webinar library and register for upcoming sessions at myosh Academy.

Ian Fagan is cofounder and director of Skodel. Sam McKenzie is Skodel’s Director of Psychosocial Compliance & Engagement and a former Lead Counsel at WorkSafe Victoria. Kristina Shields is an operations Consultant at myosh.

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