Employer Mental Health Duty

For an employer or principal contractor, mental health is not optional goodwill — it is an enforceable WHS duty that extends beyond your direct employees to labour-hire and subbies, and ignoring a disclosed crisis exposes you to WHS prosecution, discrimination claims, workers' comp and even civil damages. Here is the duty and what it requires.‍‌​​​‌​‌‌​‌‌‌‌‌​​‌‌‌​​​‌​‌‌‍

The legal basis (and who is covered)

• "Health" includes psychological health. Under the model WHS Act, a PCBU's primary duty to ensure health and safety so far as reasonably practicable covers mental health, not just physical. And "worker" is broad — employees, labour-hire, subcontractors and their workers, apprentices, work-experience students and volunteers — so the duty is owed to far more than your payroll.
• Mandatory psychosocial risk management. The WHS Regulations now include a specific psychosocial division: identify reasonably foreseeable psychosocial hazards, assess and control the risks (eliminate or minimise so far as reasonably practicable), apply the hierarchy of controls (engineering and work design before administrative measures, training or "resilience"), and maintain and review.
• Codes of Practice back it — the model Code, the Commonwealth's Managing Psychosocial Hazards at Work Code of Practice 2024, and NSW's Code (in force since 2021) — all built on the four-step identify → assess → control → review.

Mental health as a disability — reasonable adjustments

Under the DDA 1992, "disability" is defined broadly enough to cover clinically diagnosed depression, anxiety, PTSD and severe burnout where they substantially affect functioning — including current, past, imputed and future conditions. Where a worker has such a condition and you know (or ought to know), you must make reasonable adjustments unless it would be unjustifiable hardship. Typical construction adjustments:

• Modified duties — temporarily reallocate high-stress or safety-critical tasks (complex crane ops, high-risk confined space, dispute-heavy client roles) while the worker stabilises.
• A phased return — staging hours and duties over weeks (see Returning to Work After Mental Health).
• Adjusted rosters — limiting consecutive night shifts, reducing overtime, consistent start and finish, guaranteed rest days.
• Team or environment changes — moving someone away from a crew or supervisor where conflict or trauma occurred.
• Leave or flexibility during acute treatment.

"Reasonable" depends on your size and resources and the job's safety needs — but regulators and courts expect you to explore and document options, not reject them out of hand.

What happens if you ignore a disclosed crisis

Where there are indicators of self-harm risk or severe impairment and the employer does nothing, the exposure is real and stacks:

• WHS enforcement — a breach of the primary duty and the psychosocial obligations; regulators can issue improvement and prohibition notices and prosecute the PCBU and its officers (fines, and imprisonment for serious recklessness).
• Discrimination / failure to adjust — if a worker discloses a condition amounting to a disability and you refuse to discuss adjustments, ignore medical advice or penalise them, that is a DDA and state-law complaint (compensation, reinstatement, training orders).
• Workers' compensation — psychological injury — covered where there is a diagnosed injury with a work causal link, unless it was wholly or predominantly caused by "reasonable management action carried out in a reasonable manner" (the statutory exclusion). Psych-injury claims are rising, and tribunals scrutinise whether you managed the psychosocial risks.
• Civil damages — the High Court has confirmed that psychiatric injury can ground damages for breach of contract where an employer's breach of its duty to provide a safe system of work causes psychiatric harm.

The principal contractor's duty for subbies

This is the part head contractors miss: as the PCBU controlling the site, your duty extends to the psychosocial hazards arising from site-wide systems — work programming, deadlines, site rules, supervision and foreperson behaviour — regardless of whether the affected worker is your employee, labour-hire or a subcontractor's. Subcontractor companies and labour-hire firms are also PCBUs with overlapping duties, and where more than one PCBU owes a duty, you must consult, cooperate and coordinate. Practically: put psychosocial hazards in the WHS management plan and risk register (not "off-site HR"), train supervisors to recognise and escalate, design rosters to avoid unreasonable fatigue across all trades, and apply the bullying, fatigue and violence policies equally to subbie and labour-hire workers.

Confidential support (even for small subbies)

An EAP (confidential counselling for workers and family, with critical-incident debriefing) is the common control on larger sites. A small subcontractor is still a PCBU and must manage psychosocial risk, but is not legally required to provide a branded EAP if other effective measures are reasonably practicable — options include a low-headcount EAP package, joining an industry or association scheme, formalising referral pathways (so workers know how to reach Medicare-subsidised sessions via a GP, crisis lines and MATES — covered in inductions and toolbox talks), or arranging with the head contractor that subbie workers can use the site EAP. The key point: workers have timely, confidential support avenues and you can show reasonable, documented steps.

Common mistakes

• Treating site-wide psychosocial hazards as "the subbie's HR problem" (your duty extends to them).
• No psychosocial hazards in the WHS plan or risk register.
• Ignoring a disclosed condition instead of exploring and documenting adjustments.
• Assuming "reasonable management action" covers poorly-handled grievances or relentless workloads.

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