The NSW Government has now introduced major industrial relations and work health and safety reforms.
On Friday 27 June 2025, the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (NSW) (Bill) passed both houses of parliament and will amend the Industrial Relations Act 1996 (NSW) (IR Act) and the Work Health and Safety Act 2011 (NSW) (WHS Act). The amendments for the IR Act are specific to all state and local government employers.
According to the NSW Government, the Bill is aimed at modernising workplace protections, improving gender equality outcomes and strengthening the jurisdiction of the Industrial Relations Commission (IRC) in addressing critical issues, including sexual harassment and bullying.[1] The Bill is part of, and complements, the proposed reforms separately introduced for the state’s workers compensation system under the Workers Compensation Legislation Amendment Bill 2025 (NSW).
The changes in the Bill are important and potentially far-reaching.
Changes to the WHS Act
Upon introducing the changes to the WHS Act, the Minister for Industrial Relations and Work Health and Safety, Sophie Cotsis, said that the Bill focused on measures to strengthen work health and safety protections for workers and that the NSW Government wants employers, unions and the regulator working together to protect workers from harm. [2]
The key changes to the WHS Act are summarised below.
Changing the status of approved Codes of Practice
Persons conducting a business or undertaking (PCBU) will be required to comply with approved Codes of Practice or otherwise manage hazards and risks in a way that achieves an equivalent (or higher) standard than that required under the approved Codes of Practice.
Currently, compliance with these codes is not mandatory although they are admissible in proceedings as evidence of whether there has been compliance with a duty or obligation.
Expanding the rights of WHS entry permit holders
Union officials exercising right of entry to inquire into suspected contraventions of the WHS Act will be able to take photos, videos, measurements or conduct tests relevant to the suspected contravention.
During the entry, if the union official comes to reasonably suspect another contravention of the WHS Act, the union official will also be able to exercise their powers in relation to that new suspected contravention.
A new disputes avenue for ‘WHS Matters’
A new disputes avenue for ‘WHS Matters’ will be created allowing parties (a PCBU, workers, a Health and Safety Representative (HSR) or a registered organisation such as a union) to take a dispute to the IRC for issues that will constitute ‘WHS Matters’.
‘WHS Matters’ is defined to include, but is not limited to, work group determinations, requests by HSRs, health and safety committee matters and issues about the cessation of work. The IRC will be allowed to deal with the dispute as it sees fit (e.g., mediation, conciliation or arbitration) and parties will have to bear their own costs, unless an exception applies.
Upon commencing a dispute, any involvement by an inspector will have to stop and an inspector cannot subsequently be appointed to resolve the dispute unless the dispute concerns an immediate or imminent exposure to a hazard.
Expanding the power of unions to commence proceedings
Registered organisations, such as unions, will have an expanded power to commence proceedings for an offence under the WHS Act.[3]
Prior to the Bill, the power had been limited to commencing proceedings for Category 1 or Category 2 offences (which are limited to offences in relation to health and safety duties) and only in circumstances where the regulator had declined to commence proceedings and, following a referral to and subsequent advice from the Director of Public Prosecutions to commence proceedings, continued to decline to commence proceedings.
This process has proven to be quite a barrier. With the passing of the Bill, the power to prosecute will be available if the registered organisation has consulted with the regulator about an intention to commence proceedings and the regulator has declined to commence the proceedings. Registered organisations will also have the power to commence proceedings for any offence under the WHS Act. This is a notable change.
The current restriction on the court to not pay any portion of a fine or other penalty to a registered organisation will also be removed.
Registered organisations will have a new power to commence proceedings for contraventions of civil penalty provisions under the WHS Act which will extend to Part 7 – Workplace entry by WHS entry permit holders (i.e., right of entry exercised by union officials).
In addition to commencing proceedings, unions will be added as eligible persons for the purpose of making applications for reviews of a number of reviewable decisions (provided the union represents a worker(s) whose interests have been affected by that reviewable decision).
Limitation period for commencing proceedings
Extensions to the limitation period will be allowed, with leave of the court, if the court is satisfied that it would be in the interests of justice. As explained by Minister Cotsis, this particular change “responds to situations in which there is delayed onset of injury or illness, such as in the case of some dust diseases, following a worker’s exposure to a risk of harm”.[4]
Information sharing and reporting
Provisional Improvement Notices issued by HSRs to PCBUs will need to be given to the regulator.
The options for the regulator to be able to share information with other agencies, including law enforcement agencies, and individuals will be expanded. These changes include adding an exception to the current confidentiality requirement applicable to information and documents that are obtained when exercising a power or function under the WHS Act, which will allow certain individuals (e.g., HSRs and persons who hold office in, or are an employee of, a registered organisation) access to such information and documents provided they relate to the inspection, or investigation, of a matter raised by that individual with the regulator.
The regulator will be required to prepare a report every six months in relation to complaints received about “psychosocial matters”, the statutory notices issued about “psychosocial matters” and any insights about the issuing of those statutory notices, including any recommendations for improving psychosocial work health and safety and reducing psychological injuries.
Key takeaways
Duty holders need to be prepared for inquiries on how risks to health and safety are being managed.
The change in status for approved Codes of Practice should prompt PCBUs to consider how they have approached these codes to date and whether improvements are needed to ensure compliance.
The changes in relation to worker consultation, representation and participation should also prompt review of the relevant parts of a PCBU’s system of work, including any protocols for right of entry.
According to Minister Cotsis, one of the aims of the reforms was to “establish the conditions necessary to drive tripartite collaboration” among employers, unions and the regulator to prevent workplace injuries and deaths.[5] The role of the union under the WHS Act as a result of the changes has certainly grown.
Conclusion
The Bill awaits assent with the changes to commence on a day to be confirmed.
Please do not hesitate to contact the authors for a detailed briefing of the Bill.
This is part two of a two-part Insight series. For an overview of how the Workplace Protections Bill is changing the Industrial Relations Act 1996 (NSW), please see part one of the series here.
[1]Ministerial media release, Minns Labor Government introduces flagship legislation to prevent psychological and physical workplace injuries, 27 May 2025.
[2] Second Reading Speech by Minister Cotsis (27 May 2025).
[3] ‘Registered organisations’ will be defined as industrial organisations of employees under the IR Act or an association of employees registered, or taken to be registered, under the Fair Work Act 2009 (Cth). The registered organisation must have a member(s) concerned in the matter to which the proceedings relate.
[4] Second Reading Speech by Minister Cotsis (27 May 2025). This change follows a decision in the Court of Criminal Appeal, which concerned two workers exposed to silica dust who died from silicosis; the prosecution by SafeWork NSW was dismissed because it was filed out of time and after the limitation period had ended: Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105. SafeWork NSW was refused special leave to appeal: SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] HCATrans 83 (25 November 2024).
[5] Second Reading Speech by Minister Cotsis (27 May 2025).
The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.