New WHS reforms in NSW aimed at eliminating workplace injuries

More changes are coming to NSW’s WHS and industrial relations laws in line with the Minns Government’s stated commitment to establishing a modern IR framework for NSW and preventing injuries and deaths in the workplace. 

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.” Noteworthy changes include the introduction of a WHS dispute resolution pathway similar to that in place in Queensland, mandatory compliance with approved Codes of Practice (also modelled on Queensland), expanded rights upon entry for permit holders, Provisional Improvement Notice reporting requirements and streamlining of the process for unions to bring proceedings for WHS Act offences. 

It also establishes 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. This article covers the changes to the WHS Act. 

Changes to the WHS Act 

By way of snapshot, the WHS Act will be amended as follows: 

Mandatory compliance with Codes of Practice 

A person conducting a business or undertaking - or PCBU - will be required to comply with Codes of Practice approved by the Minister. Departure will only be permitted where a PCBU provides a standard of health and safety that is either equivalent to or higher than the standard required under the Code of Practice. 

Currently, compliance with Codes of Practice are only mandatory where compliance with the relevant Code (or part) is expressly required by the legislation (although failure to meet the best practice standards in a Code may nonetheless be relevant to assessing what is considered reasonably practicable). 

Disputes about WHS matter 

Any party to a “dispute” about a “WHS matter” can notify the IRC of the dispute and the IRC may deal with the dispute in any way it thinks fit. 

The new dispute resolution procedure applies to WHS matter disputes between a PCBU and any affected worker, Health and Safety Representative and/or a union. What constitutes a WHS matter is broad and includes negotiations for a work group (or variation), HSR training and HSR information access requests, matters about the constitution of a WHS Committee, and issues about cessation of work under Part 5, Division 6.  

While there are some limitations on when certain disputes can be notified to the IRC, once notified the IRC can mediate, conciliate or arbitrate and, in the case of arbitration, may make orders it considers appropriate for the prompt settlement of the dispute. In some cases, the IRC’s power of review may extend to confirming, varying or setting aside inspector’s decisions (or even returning the matter to the inspector with directions the IRC considers appropriate). 

The IRC can decide not to deal with a dispute, where it forms a view that the WHS matter is frivolous, vexatious, misconceived or lacking in substance, and it can order costs if the notifying party acted without reasonable cause. Otherwise, a party to a notified dispute must bear its own costs. The proposed provision also provides for a right of appeal under the IR Act. 

Expanded rights of entry permit holders 

The rights of an entry permit holder under s. 118 of the WHS Act will be expanded to permit holders to take measurements, conduct tests and take photos and videos directly relevant to the suspected contravention. 

Addition of union as eligible person for reviewable decisions 

A union that represents a worker whose interests are affected by a decision will be an eligible person in relation to reviewable decisions under the following sections of the WHS Act: 

• s. 54(2) - decisions following failure to commence negotiations 

• ss. 72(6) and 76(6) – decision in relation to training of HSR; and decision relating to a WHS committee 

• s. 102 – decision on review of PIN 

• ss.191, 194 and 195 - issue of improvement notice; extension of time for compliance with improvement notice; and issue of prohibition notice) 

• ss. 197B and 197E - issue of prohibited asbestos notice and extension of time for compliance with prohibited asbestos notice 

• ss.198, 201 and 207 - issue of non-disturbance notice; issue of subsequent notice; and decision of regulator to vary or cancel notice. 

PIN notification obligations 

A PCBU must give SafeWork NSW a copy of any PIN issued to them by an HSR as soon as practicable after the time of issue. The penalty for non-compliance is 50 penalty units.  

The Second Reading speech to the Bill indicates that the purpose of this new requirement is to give SafeWork NSW improved data about where WHS issues are emerging. 

Limitation periods for commencing prosecutions 

With leave of the court, a prosecution may be commenced after the expiry of the two-year statute of limitation period, expanding the previous exception for Category 1 offences.  The court must be satisfied that the granting of leave is “in the interests of justice.” 

Union prosecutions 

A union will have the right to bring proceedings concerning a matter relating to a member if it first consults with SafeWork NSW about its intention to bring the proceedings, and the regulator has declined to bring the proceedings.  

Currently, ss. 230(c) and 230(3) of the WHS Act permit unions to bring proceedings, but the right is more restricted. For example, the right is confined to Category 1 or 2 offences and only arise where SafeWork NSW declines to follow the advice of the Director of Public Prosecutions to bring proceedings. 

Confidentiality of information 

The exceptions relating to the confidentiality of information that a person obtains or gains access to in exercising any function or power under the WHS Act will be expanded to permit disclosure, access or use of a document or information to an employee association officer, employer organisation officer or HSR where disclosure relates to an inspection or investigation of a matter raised by the relevant officer or HSR with SafeWork NSW. That said, the new exception will only apply if the disclosure, access or use will not prejudice an ongoing investigation, prosecution or other exercise of compliance powers. 

Exchange of information 

SafeWork NSW may enter into or approve of an information sharing arrangement with a relevant agency, providing for the sharing of information relating to investigations, law enforcement, assessment of complaints, licensing, authorisations, notifiable incidents, dispute resolution and monitoring of WHS compliance, as well as other information relating to WHS. 

Under the arrangement, the respective parties may request and receive information and disclose information to each other, but only to the extent that the information is reasonably necessary to assist the party with the exercise of their statutory functions. 

Reporting about psychosocial matters 

Every six months, SafeWork NSW will be required to provide the Minister with a report about the following matters: 

• The number and types of complaints received by SafeWork NSW about psychosocial matters that relate to either the government sector or the private sector. 

• The number and types of notices issued under Part 10 of the WHS Act about psychosocial matters that relate to the government sector or the private sector. 

• SafeWork NSW’s insights about the issuing of notices relating to psychosocial matters, including any recommendations for improving psychosocial WHS and reducing psychosocial injuries. 

In an effort to encourage greater transparency, this information will also be published on the SafeWork NSW website. 

Preparing for WHS reforms 

In anticipation of the new reforms commencing, PCBUs should: 

• Review their WHS Management System for compliance with any relevant mandatory Codes of Conduct. 

• Review their WHS dispute resolution procedure to determine whether it is effective for managing and resolving disputes so as to avoid, where possible, referral to the IRC. 

• Update systems to ensure copies of any PINs issued by HSRs are provided to SafeWork NSW as soon as reasonably practicable after receipt. 

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.