A recent review of the work health and safety scheme in New South Wales has led to recommendations being made to amend the Work Health and Safety Act 2011 (NSW) (WHS Act) and Work Health and Safety Regulation 2025 (NSW) (WHS Regulation) (Scheme Review). The focus of the Scheme Review was on the role and rights of Health and Safety Representatives (HSRs) and workplace training, education and support for apprentices.

Despite the seemingly narrow focus, a total of 32 recommendations have been made.

The key recommendations for amendments are covered below, with the overwhelming majority being in relation to HSRs.

For persons conducting a business or undertaking (PCBUs) that engage with HSRs, particularly if they operate across jurisdictions, many will have noticed that the provisions in relation to HSRs have been evolving in recent years and, based on this Scheme Review, if not the Best Practice Review conducted by Safe Work Australia, that is likely to continue.

Background

The Scheme Review is the first of its kind in this jurisdiction.[1]

The Standing Committee on Law and Justice was given the task of overseeing the operation of the work health and safety scheme with this review commencing on 15 December 2025. Following a period of public consultation, the report was released on 15 September 2026.[2]

The recommendations in relation to HSRs cover elections, the formation of work groups for elections and the obligations on PCBUs towards HSRs. According to the Standing Committee on Law and Justice, these recommendations are about strengthening the role of HSRs “who play a key role in maintaining and improving workplace health and safety”.[3]

Specifically, the recommendations include:[4]

• Mandating the election of HSRs for PCBUs with more than 50 employees, and that those elections be conducted by accredited third-party providers or registered unions. Currently, elections for HSRs are only triggered at the request of a worker.
• Establishing a default arrangement for when work groups are being negotiated. The default arrangement would apply after a specified period of time and remain in place until an agreement has been reached or until SafeWork NSW has made a determination. Any determinations will need to prioritise the views of workers.
• Adding to the list of matters under the WHS Act that trigger the duty to consult with workers. The new matters would be the investigation of incidents and the development, management, evaluation and improvement of systems of work. Currently, when PCBUs consult with workers, that consultation must include HSRs.
• Reframing the obligation on PCBUs to provide information to HSRs as a proactive obligation, with specified timeframes for the provision of information relating to a serious risk, and with specified types of information to be provided (e.g., risk assessments). This reframing would also involve clarifying what, if any, information could be withheld on the grounds of confidentiality or commercial sensitivity.
• Requiring that, when a Provisional Improvement Notice (PIN) issued by a HSR is disputed, the dispute triggers the issue resolution provisions under the WHS Act. The Standing Committee on Law and Justice observed that there had been reports of HSRs being encouraged by SafeWork NSW to withdraw or cancel PINs, and stated that SafeWork NSW should ensure HSRs are provided with the necessary guidance and support when drafting and issuing PINs to ensure they are compliant.
• Making SafeWork NSW’s ‘Worker Representation and Participation Guide’ an approved code of practice, which in turn will require compliance unless the same or higher standard in relation to representation and participation can be achieved.

The recommendations were not limited to amendments.

The Standing Committee on Law and Justice also recommended that the state government, in consultation with SafeWork NSW, develop industry-specific training for HSRs in major industries, and carry out a review for determining what legislative reform is necessary to better protect HSRs from discriminatory and coercive conduct, among other things.[5] This review would include consideration of whether the definition of discriminatory conduct should extend to the exercise of managerial prerogative against a HSR, and what steps SafeWork NSW should take to increase the number of prosecutions for discriminatory conduct against HSRs.

According to the committee, and based on the material before it, it was not uncommon for HSRs to experience discriminatory conduct.

To date, there has only been one prosecution commenced by SafeWork NSW under the discriminatory conduct provisions (which resulted in a fine and compensation payable to the worker being ordered).[6] During the period of public consultation, SafeWork NSW explained that it takes a proportionate response to non-compliances and referred to using the Prosecution Guidelines to make decisions about whether to prosecute. SafeWork NSW also explained that a prosecution is a discretionary action, taking into account the public interest and whether there are reasonable prospects of conviction.[7]

The recommendations in relation to apprentices cover workplace training, education and support.

Based on the material before the Standing Committee on Law and Justice, New South Wales has the largest number of apprentices and trainees nationally, yet there is reportedly a disproportionate number of incidents and injuries involving apprentices. It was observed that when apprentices join the workplace, they are “fairly new with little understanding or experience of work health and safety measures and best practice” and that whilst this vulnerability is recognised, there are still gaps in relation to apprentices that need addressing.[8]

For apprentices, there was only one recommendation concerning an amendment to the WHS Regulation, which was requiring apprentices, trainees and young workers to wear green hard hats or caps (or another colour as appropriate) to ensure they are readily identifiable in the workplace and can be supported.

The other recommendations for the state government include:

• Reviewing and updating training for apprentices, trainees and young workers to ensure it includes a lived experience component for work health and safety.
• In consultation with the Building Commission NSW, among others, requiring supervisors to carry out certain training before they are allowed to supervise apprentices, trainees and young workers for PCBUs with more than 20 workers.

A response to the recommendations is due from the state government on 15 December 2026.

The recommendations above in relation to HSRs, if they were to be supported, would have practical implications for PCBUs and their current consultation arrangements at the workplace. If the amendments were to occur, current consultation arrangements would need to be reviewed and that would also likely trigger the need to consult.

Whilst the Standing Committee on Law and Justice observed a low uptake of HSRs and a lack of meaningful consultation with workers across various sectors, there are many workplaces where this is not the case. For workplaces with active HSRs, an increase in the powers and functions available to HSRs could lead to additional resources being required to manage the engagement.

The provisions in relation to HSRs nationally have been evolving in recent years, and this was recently confirmed as part of the Best Practice Review conducted by Safe Work Australia.[9] 

This Best Practice Review involved examining amendments made to work health and safety laws across the jurisdictions to date and making recommendations as to whether the Model Work Health and Safety Laws (Model WHS Laws) require amendment. The Consultation Summary released by Safe Work Australia earlier this year indicated that at least workplace consultation, participation and representation would be an area of focus.[10]

The Final Report, which was released today, includes a recommendation to amend the Model WHS Laws to enact best practice variations from various jurisdictions, including in relation to HSRs and their elections, powers and functions and training entitlements.[11] 

The Final Report, with a total of 21 recommendations, is being considered by relevant ministers.

The recommendations from the Scheme Review and Best Practice Review are only recommendations at this stage and material movement on either is not expected until next year.

In New South Wales, the state government will have the opportunity to consider the Final Report released by Safe Work Australia and can pursue any amendments to the WHS Act and WHS Regulation in relation to HSRs (and apprentices) based on the Scheme Review, or that are in accordance with the Best Practice Review, which reflects the intended harmonised approach nationally.

References

[1] Section 276C, WHS Act. The enabling provision for this type of review was introduced last year, with the intent of ensuring there is oversight of the scheme by the Standing Committee on Law and Justice.

[2] Standing Committee on Law and Justice – 2026 Review of the Work Health and Safety Scheme.

[3] Media Release, ‘Committee publishes its first review of the Work Health and Safety Scheme’ (15 September 2026).

[4] Recommendations 9-10 and 13-15.

[5] Recommendations 12 and 18.

[6] SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540, SafeWork NSW v Qantas Ground Services Ltd (No. 2) [2023] NSWDC 146, SafeWork NSW v Qantas Ground Services Pty Ltd (No. 3) [2023] NSWDC 468 and SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4) [2024] NSWDC 53.

[7] Page 3 of SafeWork NSW’s Response to Questions taken on Notice (30 April 2026).

[8] Page 2.

[9] Safe Work Australia’s Final Report – Best Practice Review of the Model Work Health and Safety Laws.

[10] Safe Work Australia’s Consultation Summary – Best Practice Review of the Model Work Health and Safety Laws.

[11] Recommendation 8.

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This article was co-authored by Nathan Goslett, Associate, in our Sydney office.

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.

Photo by Ronnakorn Triraganon on Unsplash