WorkSafe WA has commenced its first prosecution for psychosocial hazards under the Work Health and Safety Act 2020 (WA). The Western Australian Department of Justice has been charged with failing to provide and maintain a safe work environment at Bunbury Regional Prison, with WorkSafe alleging that the failure caused serious psychological harm to a former female prison officer.

The first mention took place on 7 November 2024 at Bunbury Magistrates Court. The charges are Category 1 offences under sections 19 and 31 of the WHS Act, carrying a maximum penalty of $3.5 million. Under the WA WHS Act, the only offence higher than Category 1 is industrial manslaughter.

The allegations

WorkSafe alleges that the Department of Justice did not have proper procedures in place at the prison to deal with inappropriate behaviours, and that staff were repeatedly exposed to inappropriate comments and advances, bullying, intimidation, and threats, including sexual harassment.

The regulator issued an improvement notice to the Department in March 2023, requiring it to implement procedures to manage psychological safety at the prison. According to WorkSafe, the Department failed to comply with the improvement notice, even after being granted an extension of time to do so.

The charges allege that the Department breached its primary duty of care under section 19 of the WHS Act by failing to provide and maintain a safe work environment, and that this failure caused serious harm to a worker, constituting a Category 1 offence under section 31.

Why this prosecution matters

This is significant on several levels.

First psychosocial prosecution in WA. WorkSafe WA has confirmed this is the first time it has taken prosecution action under the current legislation over psychosocial issues. Western Australia adopted the national model WHS laws on 31 March 2022, replacing the previous Occupational Safety and Health Act 1984. The psychosocial hazard regulations were introduced on 24 December 2022, defining psychosocial hazards and requiring PCBUs to manage psychosocial risks using the same risk assessment approach applied to physical hazards. Less than two years after these specific provisions commenced, WorkSafe has moved to prosecution.

Category 1 charges. The decision to pursue Category 1 charges is a deliberate signal. Category 1 is the most serious offence category under the WHS Act (below industrial manslaughter, which sits in the Criminal Code). It applies where a duty holder's failure to comply with a health and safety duty exposes a person to a risk of death or serious injury or illness, and the duty holder is reckless or negligent as to the risk. The $3.5 million maximum penalty for a body corporate reflects the seriousness the legislation attaches to this category. Squire Patton Boggs notes that the choice to lay Category 1 charges demonstrates that WorkSafe views psychosocial hazard failures with the same gravity as those relating to major risks to physical health and safety.

Prior improvement notice not complied with. The fact that an improvement notice was issued in March 2023, the Department was granted an extension, and WorkSafe alleges it still failed to comply, is a significant aggravating factor. A regulator that issues an improvement notice is providing an opportunity to remedy a breach before enforcement escalates. An employer that fails to comply with that notice, even after an extension, has exhausted the regulator's patience.

Correctional environment. Correctional facilities are inherently high-risk environments for psychosocial hazards. Workers are regularly exposed to aggression, violence, and traumatic situations. The expectation is not that these hazards can be eliminated entirely, but that the employer has a structured system to identify, assess, control and review the risks they create. The Department of Justice is not a small employer unfamiliar with WHS obligations. It is a large government department with access to resources, legal expertise and organisational capability.

The practical implications

Squire Patton Boggs observes that regardless of the outcome, this prosecution should serve as a reminder that employers have a legal duty to manage potential risks to workers' mental health, including a duty to assess psychosocial risks and ensure appropriate measures are in place to eliminate or minimise them.

For WA employers, the practical takeaways are clear. The WHS Act 2020 and the psychosocial hazard regulations are enforceable. WorkSafe has demonstrated it will use prosecution as an enforcement tool for psychosocial matters, not only improvement notices or education. The choice to pursue Category 1 charges signals that where a failure is serious and a worker has been seriously harmed, the regulator will seek the highest available penalties.

WorkSafe WA has encouraged duty holders to use the Code of Practice: Psychosocial Hazards in the Workplace and the Code of Practice: Workplace Behaviour, both published on the WorkSafe website, as practical guides for managing psychosocial risks.

The national pattern

This prosecution fits a national pattern. In October 2023, Court Services Victoria was fined $379,157 for psychosocial hazard failures at the Coroners Court. In NSW, SafeWork NSW has committed to compulsory psychosocial WHS checks for organisations with 200 or more workers under its Psychological Health and Safety Strategy 2024-2026. Queensland has integrated psychosocial hazards into its inspection and enforcement framework.

The direction is consistent across jurisdictions. Regulators are treating psychosocial hazard failures with the same enforcement approach they apply to physical safety breaches. The WA prosecution, as the first under the current legislation, adds another jurisdiction to the list of regulators that have moved from guidance and education to active enforcement.

For the full state-by-state breakdown, see the compliance-by-state collection.

Disclaimer: This article provides general information on psychosocial compliance in Australian workplaces. It does not constitute legal advice. The prosecution described is before the courts and the Department of Justice has not been convicted. Organisations should consult qualified professionals for advice specific to their circumstances. Regulatory references are sourced from WorkSafe WA, the WA Department of Commerce, and Squire Patton Boggs and are current as of the date of publication.