Partner, HWLE Lawyers
With 12 years of legal practice spent predominantly across workers' compensation and common law actions, Bronte brings deep specialist expertise to LGIS and local government members.
Bronte has extensive experience representing clients across all stages of the WorkCover WA Conciliation and Arbitration process, as well as in the District Court and Supreme Court. She understands the distinct risk and operational environment that the local government sector faces and is well placed to advise on the full spectrum of statutory insurance and common law obligations arising from injuries at work.
Bronte is focused on achieving sound, commercially sensible outcomes that serve the best interests of her clients, and doesn’t shy away from a challenge.
While the Act retains a broad definition of injury, section seven contains a new exclusion for psychological and psychiatric disorders arising from ‘reasonable administrative action’ taken by an employer.
The primary definition of ‘injury’ in the Act provides that a disease, or the recurrence, aggravation or acceleration of a pre-existing disease (which is the category applicable to psychological injury claims), will be an ‘injury from employment’ where it is contracted in the course of employment and the employment contributed to it to a significant degree.
However, section seven creates an exception. A psychological or psychiatric disorder will not be an injury from employment if it results solely or predominantly from administrative action that is not unreasonable and harsh on the part of the employer, or where the worker has an expectation of administrative action.
Congratulations to the Shire of Kellerberrin on receiving the Tier 2 Diligence in Safety Award. CEO James Sheridan visited the Shire earlier this month to meet the team and present the award. The award recognises strong results through LGIS’s ‘3 Steps to Safety’ program.
From marquees, stages and sound systems to temporary fencing, generators, catering equipment and vehicles, third-party asset hire is a practical way to meet short-term needs without owning everything year-round.
The Workers Compensation and Injury Management Act 2023 (WA) introduced a significant change to the assessment of psychological injury claims in Western Australia. While the Act retains a broad definition of injury, section seven contains a new exclusion for psychological and psychiatric disorders arising from ‘reasonable administrative action’ taken by an employer.
Although there are not yet any published appellate decisions considering section seven of the new WA legislation in detail, guidance can be drawn from decisions interpreting equivalent provisions in other jurisdictions.
Those decisions distinguish between administrative action and operational action, confirming that the critical question is whether the action relates to the administration of the employment relationship between a particular employee and employer.
Administrative action concerns decisions and conduct directed specifically toward an employee in the employer’s capacity as employer. In contrast, something which is an operational action will relate to the activities, functions or business operations of the organisation itself.
Matters such as workload allocation, staffing levels, organisational restructures affecting the workforce generally, or exposure to difficult or unpopular operational circumstances will often be characterised as operational rather than administrative action because they relate to the activities and functions of the organisation, rather than the management of a particular employee. A notable exception is retrenchment. Although retrenchment decisions frequently arise from operational or organisational considerations, section seven expressly includes action taken in connection with a worker’s retrenchment within the definition of administrative action.
Administrative action is therefore concerned with the management of the individual employment relationship, rather than the ordinary operational features of a workplace.
Importantly, the exclusion does not provide a blanket defence to psychological injury claims arising from workplace behaviour. Claims arising from alleged bullying, harassment, interpersonal conflict or other conduct that is not properly characterised as administrative action may still be compensable if the statutory requirements are otherwise satisfied.
Although section seven is commonly referred to as the “reasonable administrative action” exclusion, the statutory test is whether the relevant administrative action was not unreasonable and harsh on the part of the employer. The distinction is important, as the focus of the inquiry is not whether the action was ideal or beyond criticism, but whether it can properly be characterised as unreasonable and harsh.
Whether administrative action is unreasonable and harsh is determined on a case-by-case basis having regard to all of the circumstances. Relevant considerations will commonly include:
The assessment is objective and considers both the decision itself and the process adopted by the employer.
Many of the administrative actions captured by the reasonable administrative action exclusion are inherently stressful and personal to the employee affected. While they are often necessary components of management of the workforce, employers should ensure decisions are evidence-based, policies are consistently applied, investigations are conducted promptly, matters are kept confidential and employees are afforded a fair opportunity to respond to concerns.
Well-documented decision making processes will assist in demonstrating that administrative action was reasonable. Conversely, poorly managed processes, significant procedural defects or unnecessarily aggressive conduct may undermine reliance on the section seven exclusion.
Where there is a genuine concern regarding actual or perceived bias, employers may wish to consider engaging an appropriately qualified external investigator or decision-maker. While not necessary in every case, external involvement may assist in demonstrating procedural fairness and independence in more sensitive matters.
It is also important to recognise that the test under section seven differs from the unfair dismissal jurisdiction under the Fair Work Act 2009 (Cth). The issue under the workers’ compensation legislation is whether the administrative action was unreasonable and harsh for the purposes of the statutory exclusion, rather than whether a dismissal was “harsh, unjust or unreasonable” for the purposes of unfair dismissal law.
As case law develops under the new WA Act, further guidance will emerge. For now, employers should focus on ensuring administrative decisions are supported by evidence, implemented fairly and undertaken in accordance with applicable policies and legal obligations. In many cases, the quality of the process adopted by the employer will be just as important as the decision ultimately made.
This year marks the significant milestone of the 30th anniversary of LGIS. It’s an opportunity to reflect on the remarkable journey we have undertaken together over the past three decades. Since our founding in 1995, LGIS has evolved from a practical response to emerging risks into a pioneering mutual scheme that proudly serves the diverse needs of Western Australia’s local governments.
Psychological injury doesn’t typically begin with a single moment; it builds when the day-to-day job keeps asking more than people can sustainably give. Local government managers will recognise the pressure their teams deal with, constant community visibility, competing priorities, and the expectation to stay responsive across hybrid teams.
Waste management operations are under sustained pressure, with members balancing service expectations and environmental outcomes against tightening budgets and regulatory environment.
