NSW overhauls workplace laws: major reforms to WHS, bullying and harassment protections
01 July 2025
Last Friday, the NSW Government passed the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (NSW) (Bill).
The Bill makes major amendments to the work, health and safety laws in New South Wales. These amendments introduce significant changes affecting persons conducting a business or undertaking (PCBUs), unions and health and safety representatives (HSRs). The Bill also creates a dedicated anti-bullying and sexual harassment jurisdiction within the NSW Industrial Relations Commission (IRC).
The amendments are set to take effect on the date of assent (which is not currently known).
Key changes to the Work Health and Safety Act 2011 (NSW)
Change area | Current law | New law (once enacted) |
Prosecution time limits | Prosecutions for offences under the Act had to be commenced within two years of the offence. | Courts can permit prosecutions for offences beyond the two-year limitation period if it is in the "interests of justice" to do so. |
Legal status of codes of practice | Compliance with Codes of Practice approved by the Minister was not mandatory. | Codes of Practice approved by the Minister are now legally binding for PCBUs. Compliance is mandatory unless a PCBU can demonstrate that it manages hazards and risks in a manner that achieves an equivalent or higher standard of health and safety than the Code prescribes. |
Union-initiated prosecutions | Unions could only initiate prosecutions after SafeWork NSW declined to follow the DPP’s advice to bring proceedings. Unions could not receive a portion of fines following a successful prosecution. | Unions can initiate prosecutions after consulting with SafeWork NSW if it does not commence proceedings. Courts can now direct a portion of fines to unions following a successful prosecution, and SafeWork NSW must notify unions when proceedings are brought. |
Union entry powers | Union officials had limited powers to collect evidence when entering workplaces. | Union officials can now take measurements, conduct tests, and capture photographs or videos to collect evidence of suspected WHS contraventions. |
Union review rights | Unions had limited rights to seek reviews of decisions under the WHS Act. | Unions representing affected workers can now seek reviews of decisions made under the WHS Act. |
Notification of provisional improvement notices | No requirement for PCBUs to notify SafeWork NSW when HSRs issued a provisional improvement notice. | PCBUs must notify SafeWork NSW as soon as practicable after a provisional improvement notice is issued by an HSR. Failure to do so can result in a penalty. |
Dispute resolution via the IRC | No direct pathway to the IRC for disputes about WHS matters. | PCBUs, workers, HSRs, and unions can now refer WHS disputes (including those about work group determinations, HSR requests, health and safety committee matters, and cessation of work) directly to the IRC for resolution. Inspectors are excluded from further involvement once a dispute is referred, and notices of such dispute are published on the NSW Industrial Relations website. Each party will generally bear its own costs in relation to the dispute. |
Confidentiality provisions | Strict confidentiality provisions limited the disclosure of information about inspections and investigations. | Confidentiality provisions have been relaxed to allow disclosure of information to unions and HSRs, provided it does not prejudice ongoing investigations or prosecutions. |
Information sharing between agencies | SafeWork NSW had limited ability to share information with other agencies. | SafeWork NSW can now share information with other relevant agencies (eg NSW Police) for WHS purposes. |
Body worn recording devices for SafeWork NSW Inspectors
These amendments follow recent amendments to the Surveillance Devices Regulation 2022 (NSW) which empower SafeWork NSW inspectors to use a prominently attached body-worn recording device while acting in accordance with their inspector powers under the WHS Act provided that consent to be recorded is obtained, there is a significant risk of harm to the inspector or another person, or the recording is inadvertent or unexpected.
Collectively, these amendments represent a substantial shift in the regulatory landscape for workplace health and safety in NSW. They increase the obligations and potential liabilities for PCBUs, enhance the powers and rights of unions and introduce new mechanisms for dispute resolution and enforcement. All PCBUs should review these changes carefully to ensure ongoing compliance and effective management of workplace health and safety risks.
Key changes to the Industrial Relations Act 1996 (NSW)
Anti-bullying regime
Category | Details |
Definition of bullying | Bullying is defined in line with the NSW WHS Act as repeated unreasonable behaviour towards an individual or group at work that creates a risk to health and safety. Reasonable management action carried out in a reasonable manner is explicitly excluded. |
Stop bullying orders | Employees not covered by the Fair Work Act 2009 (Cth) can now apply for a "stop bullying" order. |
Powers of the IRC | The IRC has broad powers to address workplace bullying, including:
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Civil penalties for breaches | Civil penalties have been introduced for breaches of the IRC's orders:
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These amendments represent a significant enhancement of workplace protections against bullying, and fill the jurisdictional gap by protecting workers who are not currently covered by Federal laws, including workers in the public sector and local government sector and workers for unincorporated entities.
Sexual harassment regime
Change | Details |
Definition of sexual harassment | Sexual harassment is defined in line with the Anti-Discrimination Act 1977 (NSW). |
Sexual harassment orders | Employees not covered by the Fair Work Act 2009 (Cth) can apply for a sexual harassment order in the IRC, provided that they have not commenced proceedings or made an application or complaint in relation to the same conduct and the proceedings, application or complaint has not been withdrawn or failed for want of jurisdiction. Applications must be made within 24 months of the incident. |
Powers of the IRC | The IRC has broad powers to address sexual harassment, including:
|
Civil penalties | Civil penalties have been introduced for breaches of the IRC's orders:
|
Vicarious liability | Employers may be held vicariously liable for acts of sexual harassment committed by their employees or agents in the workplace unless they can demonstrate that they took all reasonable steps to prevent that conduct from occurring. |
These amendments streamline the process of managing sexual harassment claims by setting up the IRC as a "one stop shop" to hear all stages of a claim from conciliation to arbitration, for employees not covered by the Fair Work Act 2009 (Cth). This means that individuals seeking redress for sexual harassment at work can bring their claims directly to the IRC, simplifying the process and reducing the need to navigate multiple legal bodies.
