From 1 July 2026, in New South Wales it is now mandatory for persons conducting a business or undertaking to comply with Approved Safety Codes of Practice.
While at first blush this change may seem only minor or inconsequential, there are potential implications in practice for both organisations and their officers that are worth closer consideration.
Approved Codes of Practice are now mandatory
On 27 June 2025, the NSW government passed the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW). While that Act established an anti-bullying and a sexual harassment jurisdiction in the NSW Industrial Relations Commission for non-private sector employees, it also made significant changes to the Work Health and Safety Act 2011 (NSW) (WHS Act).
Amongst those safety related changes, was a change to how employers and persons conducting a business or undertaking (PCBUs) need to apply SafeWork NSW Codes of Practice, moving them to legally enforceable compliance benchmarks. The changes have been referred to as “comply or justify” laws.
Codes of Practice tend to deal with particular or specific safety issues and set out reasonably practicable ways in which a PCBU may controls those hazards and risks. Historically compliance with Codes of Practice was not mandatory (unless a Code of Practice was expressed as mandatory under the legislation). Having said that, any failure to meet the requirements set out in a Code of Practice was often relevant in assessing whether a PCBU had taken all reasonably practicable action available to it. Whether there had been compliance with a Code was admissible in proceedings and Codes were regularly relied upon by the regulator to evidence a PCBU’s failure to take reasonably practicable steps.
With effect from 1 July 2026, the new section 26A inserted into the WHS Act requires a PCBU to either:
- comply with a Code of Practice that has been approved by the relevant Minister; or
- manage hazards and risks arising from the work carried out as part of its business in a way that is different to the code, but which provides a standard of health and safety that is equivalent to or higher than the standard required under the code.
Given Codes of Practice were already regularly utilised by the regulator to evidence a PCBU’s failure to take reasonably practicable steps, does section 26A practically change anything?
In our view, yes and no.
Managing Psychosocial Hazards at Work Code of Practice
For example, SafeWork NSW issued the Managing Psychosocial Hazards at Work Code of Practice in May 2021. When that Code of Practice was first issued, it was seen by many organisations as representing best practice steps and practical guidance in managing psychosocial hazards at work.
With that being an approved Code of Practice, from 1 July 2026 the Code now contains legally enforceable minimum standards that organisations must comply with. SafeWork NSW has stated that managing psychosocial risks is one of its current priority areas. A failure to comply with that Code, in the absence of a method of managing those risks to a higher standard, can now lead to SafeWork NSW inspectors issuing improvement or prohibition notices, or in a worst case, lead directly to prosecution for breach of the WHS Act. PCBUs may see an increase in prosecutions under the WHS Act for alleged ‘Category 3’ breaches purely by failing to comply with this Code of Practice. Further, proceedings against organisations for such failures (whether Category 3 or otherwise) could be initiated by the regulator in response to union pressure, or initiated by the union itself.
Officer due diligence duties now also extend to ensuring that the PCBU has complied with its safety obligations under section 26A and may also be breached where an approved Code of Practice is not complied with by a PCBU.
Similar issues will arise where an organisation fails to implement the approved Sexual and gender-based harassment Code of Practice issued by SafeWork NSW in June 2024, in the absence of a method of managing those risks to a higher standard.
Australian and International standards
In addition to Codes of Practice, there are Australian and international Standards and industry standards developed by professional industry associations that are designed to provide guidance to help ensure safety, performance and reliability through the specifications of goods, services and systems.
For most standards, while there is no legal requirement to comply with their terms, compliance with a standard may still be relevant to a court when determining whether a duty holder has complied with its legal obligations. This is because a standard may be considered information that a duty holder knows, or ought reasonably to know, about a hazard or risk and about the ways to eliminate or minimise the risk. Complying with the relevant standard may go to show what was “reasonably practicable” in a particular circumstance.
There can be some further complexity though. In some cases, a Code of Practice may refer to a specific Australian standard. If an approved Code of practice recommends following a specific Standard, then SafeWork NSW considers it would be reasonable to consider that the standard also forms part of that approved Code.
It is also important to note that there is a small number of Australian standards that are directly referenced in the Work Health and Safety Regulation 2025 (NSW) and as a result compliance with those standards is also mandatory.
What do employers need to do?
As stated above, failure to comply with a Code of Practice often evidenced a PCBU’s failure to take all reasonably practicable steps and therefore PCBUs should already be complying with relevant Codes or implementing measures equal to (or ideally higher) than those set out in them. Accordingly, every employer and organisation operating in NSW should:
- identify which approved Codes of Practice apply to their operations;
- undertake a comprehensive gap analysis to determine whether they are complying with the minimum performance standards set out in each relevant Code of Practice, or if not, whether they are managing those hazards and risks in a way that obtains at least the same safety standard (in mapping how the organisation is complying with those codes, particular care will need to be taken to the wording in the code itself – does the code talk of must, should or may – and how the code interacts with any existing Australian or international standards); and
- identify any areas of non-compliance and take remedial action as soon as possible, prioritising action based on risk.
For all of those organisations, the management of psychosocial hazards and risk now requires clear compliance with the Managing Psychosocial Hazards at Work Code of Practice (or an alternative achieving a higher safety standard) and the implementation of a hierarchy of control measures. With the clear focus of SafeWork NSW on this area, non-compliance will expose organisations and their officers to potential regulatory action and prosecution.
Organisations need to consult with both their workers and other duty holders in relation to all safety related changes to be introduced as a result of that gap analysis, identification of areas of non-compliance and the proposed taking remedial action.
If you need assistance with meeting your safety compliance needs, please contact one of our safety experts or one of your key contacts.
