9. Law reform

The Model Code of Practice explains how employers must manage psychosocial risks at work. In healthcare, these hazards include excessive patient-doctor ratios, time pressure, unsafe hours, night shifts, poor recovery, low control over rosters and rotations, poor supervision, bullying, sexual harassment, discrimination, racism, incivility, occupational violence, trauma exposure, role confusion, poor change management, chronic vacancies, skeleton staffing, lack of backfill for leave, unsafe on-call arrangements and remote or after-hours work.

Senior clinicians and other leaders must identify these hazards unit by unit, including in emergency department, intensive care units, theatres, wards, outpatients, and on-call systems. They should use incident data, rosters, payroll records, overtime patterns, sick leave, workers’ compensation claims, exit interviews, security logs, and cultural safety surveys. They must assess risk by considering duration, frequency, and severity, and recognise how risks combine - for example, high workload plus low control plus repeated trauma.

The duty is to control risk at the most senior level, not simply tell clinicians to be more resilient. This means safe staffing, maximum hours, night-work limits, protected breaks, escalation protocols, junior-senior coverage, zero tolerance of bullying, harassment and occupational violence, confidential reporting systems, debriefing after trauma, safe redeployment, trauma-informed leadership, secure after-hours access, duress alarms, safe rooms and confidential psychological support outside line management.

All staff must be trained about psychosocial hazards, reporting options, whistleblower protections, rights under discrimination and workplace laws, and responses to occupational violence. 

Senior clinicians and other leaders should monitor lead indicators such as roster compliance, overtime, leave denials, time to close grievances and code-black events, as well as lag indicators such as injury claims, turnover and sentinel events.

If a hospital, health service, or practice cannot show it has identified psychosocial hazards, assessed them, and implemented effective controls, it is exposed to WHS enforcement, including Category 1 offences or industrial manslaughter in catastrophic cases.

Industrial manslaughter

All Australian jurisdictions now have industrial manslaughter offences, and penalties for reckless conduct have increased. 

WHS law now treats mental injury from psychosocial hazards as seriously as physical injury.

Industrial manslaughter is rare, but catastrophic. It may apply where gross negligence or recklessness causes a worker’s death. In healthcare, this could include deaths linked to physical hazards, assault, maternal or foetal harm, exhaustion from excessive work demands, or suicide related to work-related mental injury from unmanaged bullying, discrimination, racism, harassment, trauma, or violence.

This is why suicide prevention must be treated as a WHS issue, not simply an individual wellbeing issue. Evidence-based prevention includes mental health promotion, early identification of mental illness, timely access to optimal treatment, trauma-informed care and postvention after a death or serious incident.

WHS compliance is no longer a bureaucratic checklist. It saves lives. 

Senior clinicians are uniquely placed to identify risks before they escalate, model respectful behaviour, and insist that WHS and cultural safety become core clinical training.

The Amendment to the Sex Discrimination Act and the positive duty 

Employers now have a positive duty to take reasonable and proportionate steps to eliminate, as far as possible, sexual harassment, sex-based harassment, sex discrimination, pregnancy and carer discrimination, hostile work environments on the ground of sex, and victimisation.

This is not optional. It is a proactive legal obligation, enforceable through investigations, compliance notices and Federal Court orders.

Policies and one-off training are no longer enough. Employers must demonstrate active risk management, safe and confidential reporting pathways, manager and bystander training, and monitoring of trends and outcomes. Pregnancy and carer discrimination must be addressed through safe rostering, genuine access to leave, return-to-work support, and fair career progression.

Court-ordered remedies and damages may apply. While the positive duty is civil rather than criminal, ignoring court orders may carry serious consequences.

Clinicians can report concerns early and in writing and ask how their workplace is meeting its positive duty through risk assessment, controls, and monitoring. 

Large employers also have obligations under workplace gender equality laws. 

Organisations with five hundred or more employees, including many public and private hospital networks, must set and improve against gender equality targets over a three-year cycle, with public reporting. This should drive equal remuneration, fair promotion pathways, senior representation, safe parental leave, and carer support. Providing false or misleading data may attract prosecution. 

The Racial Discrimination Act and Anti-Racism Framework

The Racial Discrimination Act prohibits overt and indirect racial discrimination. 

The National Anti-Racism Framework raises expectations for culturally safe workplaces, better data, and systemic reform, including in healthcare.

This means stronger attention to culturally safe clinical environments, fair recruitment and promotion, support for international medical and health graduates, and measurable action to address racialized harm.

Potential consequences include civil remedies, compensation, injunctions, and court orders following Australian Human Rights Commission processes.

Clinicians should document racialised incidents and patterns, including derogatory comments, exclusion from training, unfair case allocation, or barriers to promotion. 

Whistleblower protections 

Victimising a whistleblower or breaching their confidentiality is both a criminal and civil offence. Courts are increasingly imposing substantial penalties, and criminal liability for individuals is a growing risk.

Health entities structured as companies must provide confidential reporting channels that are independent of the person complained about. They must protect identities and prevent detriment. 

Retaliation may include roster changes, denial of training, exclusion, hostile performance management, reputational harm, or dismissal.

Clinicians should ask for their hospital or organisation’s whistleblower policy, use designated channels, keep timelines and copies of communications, and escalate promptly if career detriment follows reporting.

Given healthcare’s longstanding speak-up failure, this is a major emerging risk for boards, executives, and senior clinicians.

Forced resignation provisions under the Fair Work Act

The Fair Work Act protects workers from adverse action when they exercise a workplace right, including making discrimination, bullying, harassment, or safety complaints.

Adverse action may include dismissal, demotion, reduced shifts, denial of training, punitive rostering, hostile performance management, or pressure to resign. “Performance management” used as retaliation for speaking up is unlawful.

Complaint handling and performance processes must be clearly separated, procedurally fair and properly documented. If a clinician is performance-managed soon after raising a concern, they should seek early advice. Timing and motive are critical in adverse-action claims.

Potential consequences include civil penalties, compensation, and possible reinstatement.

Intentional underpayment as wage theft 

Intentional underpayment is now a crime at the federal level, alongside existing state offences. This includes systemic underpayment of overtime, on-call work, penalties, allowances, leave, and misclassified training time. The historic reliance on “goodwill” to cover additional hours of work on an unpaid basis is now a legal, financial, and reputational risk.

Rostering, payroll, and supervision must reflect reality. All hours worked should be recorded and paid. Breaks must be protected. Training time must be correctly classified.

Penalties include exceptionally large fines and imprisonment of up to 10 years for individuals responsible for intentional wage theft.

Innovative technologies are emerging to help doctors in training compare payslips, hours worked and EBA entitlements. As these tools become more widely used, systemic underpayment will become harder to hide. Collective data may expose payroll shortfalls, trigger repayments, and create potential liability for organisations, directors and officers who knew of systemic underpayment and failed to act.

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