New IR Act reforms in NSW aimed at eliminating workplace injuries

The Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (passed by Parliament on 27 June 2025) will make changes to the Work Health and Safety Act 2011 with a stated objective “to establish the conditions necessary to drive tripartite collaboration” between employers, unions and the regulator so as to “prevent workplace injuries and death.” These changes were covered in a previous article. 

This article covers the establishment of a new anti-bullying and sexual harassment jurisdiction before the NSW Industrial Relations Commission (IRC) for the NSW public sector workforce, in addition to amending the freedom from victimisation provisions in the Industrial Relations Act 1996 (NSW) and clarifying the IRC’s powers during industrial disputes. 

The majority of changes will commence on a date to be appointed by proclamation. However, some of the IR Act changes have already taken effect as of 3 July 2025, including the expansion of the provisions relating to victimisation and the increase to the small claims threshold. 

Changes to the IR Act 

By way of snapshot, the changes to the IR Act include the following: 

Gender equality 

Expansion of the objects of the IR Act in relation to gender equality, bullying and sexual harassment.  

New IRC anti-bullying legislation 

The IRC will have the power to conciliate, arbitrate and make orders concerning the bullying of employees at work and persons sexually harassing employees, prospective employees and PCBUs.  

The proposed changes will align NSW with Western Australia and Queensland where there are already established anti-bullying jurisdictions under their respective industrial relations acts, and will make stop-bullying-at-work applications available to state and local public sector employees who are not eligible to make an application under the Federal scheme in the Fair Work Act 2009 (Cth). 

The key elements of the new anti-bullying jurisdiction that employers should be aware of are:  

• An employee is “bullied at work” if one or more individuals repeatedly behaves unreasonably towards the employee (or a group of employees of which the employee is a member) and the behaviour creates a risk to health and safety. 

• Reasonable management action carried out in a reasonable way does not constitute bullying. 

• An employee or their union may apply to the IRC for a stop bullying order if the employee reasonably believes they have been bullied at work, unless proceedings, an application or complaint under an anti-discrimination law concerning the same conduct has been made/commenced and is on foot. 

• If satisfied of both bullying at work and the risk of the bullying continuing, the IRC may make any order it considers appropriate. This may include payment of damages to the employee of up to $100,000, a prohibition on continuing or repeating the bullying or the publication, or an apology or retraction. 

Prohibition on sexual harassment in connection with work 

A person (the aggrieved person) who alleges they have been sexually harassed (as defined in the Anti-Discrimination Act 1977 (NSW)) by one or more other persons, or a union on behalf of the aggrieved person, may apply to the IRC for a sexual harassment order.  

The application: 

• must be made within 24 months after the sexual harassment takes place; and 

• cannot be made if proceedings, an application or complaint under an anti-discrimination law concerning the same conduct has been made/commenced and is on foot. 

If satisfied that the aggrieved person has been sexually harassed, then the IRC may make any order it considers appropriate, which may include, for example, damages of up to $100,000 as compensation for the loss or damage suffered from the sexual harassment and the development and implementation of a program or policy aimed at eliminating sexual harassment.  

The new jurisdiction is modelled on a “one-stop shop” approach, in which all stages of a claim, including conciliation, arbitration, and final determination, may be heard by the IRC. This moves away from the approach adopted by anti-discrimination legislation, which typically requires a two-step process (i.e. if a complaint does not resolve in a conciliation conference, it is referred to a tribunal or court). 

Significant expansion of provisions relating to victimisation 

Currently, s. 210 of the IR Act prohibits an employer or industrial organisation from victimising an employee or prospective employee because of certain prescribed reasons. 

Following discourse regarding the narrow application of s. 210, including that the provisions are not well used before the IRC, the Bill has significantly expanded the grounds on which an employee must not be victimised. This includes, if an employee is entitled to a benefit or claim under workers compensation legislation, where an employee has made a complaint or inquiry regarding their employment, or if an employee has a characteristic protected from discrimination under the NSW Anti-Discrimination Act.  

In addition, the Bill will amend the current reverse onus of proof set out at s. 210(2) of the IR Act by introducing an objective test that requires the IRC to be “objectively” satisfied that the alleged matter was not a substantial and operative cause of the detrimental action. When determining if the alleged matter was not a substantial and operative cause of the detrimental action, the IRC may now have regard to conscious and unconscious factors for the alleged matter. 

Given the significant expansion of provisions relating to victimisation, it is expected that the number of victimisation claims which are made in the IRC will increase.  

Small claims procedure 

Currently, the maximum amount that an industrial court may order an employer to pay on a small claims application in respect of an employee is $20,000. The Bill will amend the IR Act and Industrial Relations (General) Regulation 2020 (NSW) by increasing the maximum amount payable to $100,000. 

Preparing for IR Act reforms 

In anticipation of the new reforms commencing, government agencies should: 

• Review bullying, sexual harassment and victimisation policies for compliance with anti-discrimination laws and the IR Act and ensure that policies contain clear procedures for the resolution of complaints. 

• Provide training to workers (including contractors, trainees and volunteers) in the context of bullying, sexual harassment, and victimisation policies. 

• Provide tailored training to managers and supervisors on the definition of bullying, sexual harassment, and victimization, and on how to handle such complaints sensitively and expeditiously. 

• Review investigation protocols and triage of complaints to ensure that matters are escalated and investigated as appropriate. 

• Ensure, to the extent that disciplinary action is taken in respect of an employee, that the reason for the action (and who determines the relevant action) is clearly documented.   

Olivia Hillier is a Partner in the Employment, Safety and People team at Maddocks in Sydney. Dale McQualter is a Partner at Maddocks in Melbourne, specialising in workplace health and safety, employment, anti-discrimination, and industrial relations. Katie Kossian is a Special Counsel at Maddocks in Sydney, specialising in employment and industrial relations. Kenya Walker is a Lawyer in the Employment, Safety and People team at Maddocks.