Legal obligations and rights

Key information

• Everyone has a legal right to a healthy and safe workplace.
• Everyone has a right to a workplace free of discrimination, to have their privacy respected and to request reasonable work adjustments if they are experiencing mental ill-health.
• Employers have a legal obligation to manage risks and ensure workers’ health and safety.
• Workers have a legal obligation to work in a safe way and look out for their own and others’ health and safety at work.
• Read SafeWork NSW's Managing Psychosocial Hazards at Work Code of Practice for more detailed information about your obligations.

Employers’ legal obligations and rights

Your obligations

The NSW Work Health and Safety Regulations were updated on the 1st October 2022 to include more detail about employers' minimum requirements (duties) to manage psychosocial risks. 

• Access the new Work Health and Safety Amendment Regulation 2022 at SafeWork NSW
• Read a summary of the new regulations for managing the risks of psychosocial hazards
• Read SafeWork's Managing Psychosocial Hazards at Work Code of Practice for more detailed information about how to comply with your obligations

As an employer you must:

• Provide a healthy and safe workplace both physically and mentally. This is a legal requirement under work health and safety laws.

• Prevent harm by identifying and managing any factors that can impact workplace mental health.

• Prohibit any discrimination against a worker for having a mental health condition. Fair Work has more information about protection from discrimination at work.

• Respect workers’ privacy by not disclosing their personal or health information or mental health condition to others unless the worker gives consent.

• Make reasonable adjustments such as changes in work hours or daily tasks that support ‘recovery at work’ and have a return to work program in place. Not only is this a legal requirement, but it leads to better outcomes for your team and your business. Learn how to support recovery at work

• Keep a record of workplace illness or injuries, including psychological injuries. You can do this by having a ‘registry of injuries’. SafeWork NSW has advice on having a register of injuries.

Your rights

As an employer or business owner you have the right to:

• Ask questions – you can ask a worker about their mental health condition but only if you have a legitimate reason, such as to determine whether the person can perform their essential duties or if reasonable adjustments are needed to support them.
  
  Workers are not required by law to disclose their mental health condition to their employer if it does not affect the ability to do their job.

• Refuse unreasonable workplace adjustments – if a request from a worker is not ‘reasonable’ or means they won’t be able to meet the core requirements of their role, you can legally refuse the request but you must be clear about why.

More about workplace adjustments

• Generally, an adjustment that’s very expensive or one that disturbs or prevents other employees from doing their work, could be considered unreasonable.
• Most workplace adjustments are simple and low cost. It is important to work together to find solutions that meet both individual and business needs.

Workers’ legal obligations and rights

Your obligations

As a worker you have a legal obligation to:

• Follow your workplace policies and processes and comply with work health and safety instructions from your employer.

• Take reasonable care for your own and others’ health and safety at work.

• Report injuries and unsafe or unhealthy situations to your supervisor or health and safety representative.

SafeWork NSW has more information about your legal obligations and how to report WHS issues.

Your rights

These are your rights under the law. Creating a mentally healthy workplace is about taking the next steps to reduce stigma, support co-workers, seek support and create a culture that prioritises mental health.

As a worker you have the legal right to:

• A safe and healthy workplace – your employer must provide you with a safe and healthy workplace and prevent or minimise any factors that may cause mental ill-health.

• Protection from discrimination – if you are living with or have had a mental illness , there are laws to ensure you are not discriminated against at work.
  
  If you feel that you’re being discriminated against, the Fair Work Ombudsman has more information on what to do.

• Protection from harmful workplace behaviour – everyone has the right to not be bullied or harassed at work.
  
  If you feel you’re being bullied or have been exposed to bullying at work, we have advice on what you can do.

• Privacy – if you choose to tell your employer you are living with or have a mental illness, they cannot disclose this to anyone else without your consent under privacy legislation.
  
  You do not have a legal obligation to tell your employer about your mental health if it is not affecting the way you do your job. 
  
  If you’re trying to decide whether or not to tell your employer about your mental health, you can use the READY? Tool to help you decide. 
  
  The Headspace website also has tips.

• Support to stay at work - if you are experiencing or recovering from mental ill-health, your employer must assist you to continue to do your job by making reasonable changes to ‘recover at work’, such as flexible working arrangements or a change of work responsibilities. Our recovery at work resource kit has more advice.

Code of practice

• SafeWork NSW, as the NSW work health and safety regulator, has a range of codes of practice.
• Read the Psychosocial Hazards Code of Practice for more detailed information about your right and obligations.

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• See a list of all codes of practice on SafeWork NSW's website.

Legislation

• The Work Health and Safety Act means employers, business and workers all have legal obligations at work.
• The Disability Discrimination Act makes it illegal for a worker to be discriminated again at work due to a mental illness.
• The Privacy Act means that employers must keep workers’ personal information private and confidential.