From 1 July 2026, new provisions apply to workers compensation claims for primary psychological injuries said to be caused by bullying, excessive work demands, sexual harassment, or racial harassment (called ‘relevant conduct’).
Subject to some exceptions, set out below, a worker who:
must obtain a certificate of determination from the Industrial Relations Commission of New South Wales (Commission) stating that the conduct the subject of the claim was relevant conduct before an application may be made to the Personal Injury Commission (PIC) in relation to the claim.
All workers in NSW (including private sector workers) can make an application for such a certificate of determination except:
Federal Government employees can pursue disputed workers compensation claims before the Administrative Review Tribunal.
The other workers listed above should contact PIC directly for more information.
A worker may file an Application to Determine Relevant Conduct in the Commission if each of the following events are satisfied:
The Commission can only decide whether the conduct identified in the claim is relevant conduct. It cannot determine any other issues relating to the claim.
An insurer can reject a claim for more than one reason. If the reasons include that the conduct that is the subject of the claim is not relevant conduct then an application can be made to the Commission.
If an insurer rejected the claim but not for that reason the Commission cannot deal with the application. Any application received in those circumstances will not be processed and will be rejected. Those claims should instead be directed to PIC.
A worker may not apply to the Commission for a determination if an insurer rejects a claim for workers compensation on the basis that the claim does not contain enough information for the insurer to decide whether relevant conduct occurred or not. Those disputes should be referred to PIC.
If you are considering filing an Application to Determine Relevant Conduct you should read Practice Note 38, which sets out the procedure that must be followed.
The worker must complete the Form 67 – Application to determine relevant conduct and file it with a copy of:
An application may be rejected if the Form 67 – Application to determine relevant conduct is filed without the required supporting documentation.
Evidence that should be included with an application can be signed statements or affidavits along with any annexures and exhibits to those documents.
An applicant should file all their evidence at the same time as they file their application. An applicant will only be allowed to rely on evidence filed after that date if they make a successful application to the Commission at the conclusion of conciliation. If that occurs it will delay the hearing of the claim.
The application form and supporting documents must be filed with the Commission’s Registry by email: [email protected]. Alternatively, the application can be filed in person at the Registry or sent by post.
An applicant must serve the Application to Determine Relevant Conduct on the respondent. Pursuant to r 7E.6 of the Industrial Relations Commission Rules 2022 (NSW), service of the application may be undertaken by electronic mail if the insurer or employer uses electronic mail to communicate with an applicant about the claim. See also Service of documents.
This means that if the insurer has been communicating with you about your claim by email before you file your application you can serve the application by sending it to the email address used by the insurer.
If you are named as a respondent, are not self-insured and are served with an Application to Determine Relevant Conduct you should forward the application to your insurer.
A respondent must enter an Appearance – Workplace Conduct Jurisdiction, Form 68, within 7 days of being served with an application. The respondent must, by that form:
The application will be allocated to a member of the Commission for conciliation, where they will attempt to resolve the whole dispute between the parties (not just the relevant conduct aspect of the claim) without a formal hearing. If the matter cannot be resolved, it will proceed to arbitration before the Commission.
Practice Note 38 contains a procedure for parties by consent to apply to skip the conciliation and proceed direct to hearing.
At arbitration the Commission will only be able to decide whether the conduct the subject of the claim was relevant conduct; the Commission will not determine the whole dispute. It will determine whether the claimed conduct was one or more than one of:
Bullying: an individual or a group of individuals repeatedly behaving unreasonably towards the worker or a group of workers of which the worker is a member.1
Excessive work demands: work demands that are:
Sexual harassment: an unwelcome sexual advance, or an unwelcome request for sexual favours, to the worker or other unwelcome conduct of a sexual nature in relation to the worker.3
Racial harassment: an act that is:
When determining whether the conduct the subject of a claim was or was not relevant conduct, the Commission may have regard to any evidence from the employer that the conduct was reasonable management action taken or proposed to be taken by the employer.
‘Reasonable management action’ is management action carried out in a reasonable way and that is reasonable in all the circumstances.5
The Commission cannot grant workers compensation – its jurisdiction is limited to the determination of whether the claimed conduct is relevant conduct.
After the arbitration, the Commission will issue a certificate of determination that states:
and provides the reasons for the determination.
The certificate of determination is legally binding. It can be appealed, with leave, by an application to the Commission. It cannot be reviewed or redetermined by PIC.
If the Commission decides that the conduct was not relevant conduct, the worker is not entitled to any further workers compensation for that injury.6
If the Commission determines conduct was relevant conduct the worker must give a copy of the certificate of determination to the insurer, and the insurer must, not later than seven (7) days after receiving the certificate, issue a decision notice about the claim.7
If the insurer continues to dispute liability for the claim on other grounds, the applicant must make an application to PIC for determination of the other issues in dispute.8
The applicant at that point should not make any further application to the Commission. The Commission has no power to deal with any ongoing dispute and so can take no further steps in relation to the matter. The Commission does not refer files to PIC.
If the insurer accepts liability for the claim after the Commission’s determination, the worker is entitled to compensation from the date the claim was made.
If either party is dissatisfied with the determination of the Commissioner member, they may seek leave to appeal the determination to the Full Bench of the Commission.
Legal help
The Independent Legal Assistance and Review Service (ILARS) provides access to free and independent legal advice for injured workers where there is a disagreement with their insurer regarding entitlements.
Solicitors need to be approved by the Independent Review Office (IRO) to receive ILARS funding. A list of IRO Approved Solicitors can be found here. Counsel briefed to appear in a matter which is, or will be, before the Commission do not have to be an IRO Approved Barrister, however lawyers should seek approval for the counsel they intend to brief. Lawyers should consult the IR Funding Guidelines.
Support Services
Sexual harassment, racial harassment, bullying and excessive work demands can have significant impacts on your wellbeing. Support is available if you are feeling anxious, stressed, isolated, or are experiencing other effects.
Employee Assistance Program (EAP): Many workplaces offer free and confidential counselling through an EAP. Check with your employer or HR department.
Speak to Your Doctor (GP): Your GP can provide support, medical advice, and referrals to other professionals or online resources.
Free Helplines and Online Services:
Industrial Relations Commission Resources:
1 Workers Compensation Act 1987 (NSW), s 8A.; 2 Ibid s 8B.; 3 Ibid s 8I.; 4 Ibid s 8E.; 5 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 280AH(4); Workers Compensation Act 1987 (NSW), s 8F.; 6 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 280AI(1).; 7 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 280AI(2).; 8 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 280AI(4).
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