Over the last few years there has been a transformative change to work health and safety laws in New South Wales.
In addition to various legislative changes, there have been extensive governance changes to SafeWork NSW as the main safety regulator, the re-creation of the NSW Industrial Court, and an increase in enforcement activity. Those changes have also included:
- the introduction of an industrial manslaughter offence;
- the introduction of a positive duty in relation to psychosocial hazards and risks;
- the creation of SafeWork NSW as an independent and standalone regulator; and
- recent changes to provide unions a greater role in WHS enforcement.
The NSW government has also now proposed reforms to cover risks arising from the introduction of artificial intelligence into the workplace, being the first Australian jurisdiction to do so. It remains to be seen whether those reforms will be introduced given they have been proposed as part of controversial wider proposed reforms to the NSW workers compensation system.
This article provides an overview of the recent changes in this area.
Compliance and enforcement reforms
On 27 June 2025, the NSW government passed the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW) (Workplace Protections Act), with that Act being assented to on 3 July 2025.
The Workplace Protections Act made significant changes to both the Work Health and Safety Act 2011 (NSW) (WHS Act), along with major changes to the Industrial Relations Act 1996 (NSW). In the latter case, the Workplace Protections Act established an anti-bullying and a sexual harassment jurisdiction in the NSW Industrial Relations Commission (NSW IRC), generally excluding private sector employees but leaving the new jurisdiction for employees working in the NSW public service and for local governments [see our previous articles here].
In relation to work health and safety laws, the Workplace Protections Act amended the WHS Act to introduce the following key changes:
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PREVIOUS POSITION
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NEW LAWS
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Example
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Codes of Practice
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Compliance with Codes of Practice has historically not been mandatory, unless a Code of Practice was expressed as required to be complied with under legislation. Having said that, any failure to meet the requirements set out in a relevant Code of Practice may be relevant in assessing whether a person conducting a business or undertaking (PCBU) has taken all reasonably practicable action. |
Codes of Practice which have been approved by the NSW government will now be mandatory and legally binding on PCBUs. A PCBU may only depart from a Code of Practice if they can demonstrate that they can manage a safety hazard / risk in a different way but nonetheless achieve a standard of health and safety that is equivalent to or higher than the standard required under the Code of Practice. |
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Prosecution time limits
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Prosecutions for breaches of work health and safety laws were generally subject to a 2 year limitation period, commencing from the time when an offence first comes to SafeWork NSW’s (or another regulator’s) attention (and, not as commonly thought, 2 years from an incident or the offence occurring). In relation to Category 1 offences, proceedings can be commenced after that period if fresh evidence is discovered and the Court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period. Where there has been a coronial inquiry or inquest held, then a prosecution must be commenced within 1 year after a coronial report is made or an inquiry/inquest ended, if it appears from the report or those proceedings that an offence has been committed. |
The previous stricter time limits have now been amended. A prosecution may now also be commenced after the 2 year limitation period, with the leave of the Court where leave will be granted by the Court if it considers it is in “the interests of justice” to do so. While the NSW government has explained the reason for this change as being to facilitate the prosecution of longer latency and dust disease matters, it is important to note that this potential extension to the period available for prosecution is not limited to only those matters. |
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Provisional improvement notices
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Where a health and safety representative reasonably believes that a person:
they can issue a provisional improvement notice. |
There is now a further compliance obligation on PCBUs. Where a health and safety representative issues a provisional improvement notice to a PCBU, the PCBU must give SafeWork NSW a copy of that notice as soon as practicable after the provisional improvement notice is issued. Failure to inform SafeWork NSW can lead to a penalty. |
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Union rights of entry
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Previously, a union official holding a WHS entry permit could do various things in relation to a suspected breach of work health and safety laws, including:
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In addition to the existing powers, a WHS entry permit holder may now also:
The WHS entry permit holder may also exercise those powers in relation to any other suspected breach that they come to reasonably suspect while at the workplace. |
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Union initiated and commenced prosecutions
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Previously, a union was able to bring a prosecution for a Category 1 offence or a Category 2 offence, but only where SafeWork NSW had declined to prosecute, had referred the matter to the NSW Director of Public Prosecutions, and SafeWork NSW had declined to follow the advice of the Director of Public Prosecutions to prosecute. Where proceedings were commenced by a union, the Court could not direct that any portion of a fine or other penalty be paid to the prosecutor (the union). |
There has been a relaxation on the position as to when a union may commence proceedings. A union may now bring proceedings if:
SafeWork NSW must notify a union, as soon as practicable after they commence proceedings that have been raised with them by a union. The prohibition on a portion of a fine or penalty being ordered by a Court to be paid to a prosecuting union has been removed. It is intended that this information will also be published on SafeWork NSW’s website. |
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Confidentiality of information
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A person who obtains information or gains access to a document in exercising any power or function must generally not do any of the following:
There are various exceptions to those prohibitions including:
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Those exceptions have now been expanded to include where disclosure, access or use is given or allowed by a regulator to:
where disclosure, access or use is given by a regulator in relation to an inspection or investigation of a matter raised by the person with the regulator. This is only allowed, however, where that disclosure, access or use would not prejudice an ongoing investigation, prosecution or other exercise of compliance powers. |
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NEW LAWS
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INDIVIDUAL
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Example
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Dispute resolution with the NSW IRC
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This change allows PCBUs, workers, health and safety representatives and unions to take a dispute about a “WHS matter” directly to the NSW IRC, rather than via the relevant SafeWork NSW inspector. A “WHS matter” is defined to include:
The NSW IRC can deal with those disputes as they consider appropriate, including by way of mediation, conciliation, or arbitration. |
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Exchange of information with other agencies
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This change may have major implications for any PCBU facing potential prosecutions from multiple agencies. SafeWork NSW may enter into, or approve of, an arrangement (an information sharing arrangement) with another agency for the purposes of sharing or exchanging information held by each of them. The information to which an information sharing arrangement may cover includes:
SafeWork NSW and the relevant agency can request and receive information from each other, and disclose information to the other party, but only to the extent that the information is reasonably necessary to assist in the exercise of their statutory functions. |
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Reporting about psychosocial matters
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Every 6 months, SafeWork NSW must provide the NSW government with a report on the following matters in relation to both the government sector and the private and non-profit sectors:
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Body worn recording devices
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The NSW government has separately commenced a state-wide rollout of body worn video to deter violence or aggression against SafeWork NSW inspectors. Inspectors are legally allowed to use body worn video to record when entering a workplace using their powers under the WHS Act, if they form the opinion that there is a significant risk of harm to themselves or another person, and the device is prominently attached to the inspector’s clothing. |
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SafeWork NSW as a standalone regulator
As a result of the Work Health and Safety Amendment (Standalone Regulator) Act 2025 (NSW) (Standalone Regulator Act), effective 1 July 2025, SafeWork transitioned from being part of the NSW Department of Customer Service, to being an independent statutory regulator. This change is intended to enhance SafeWork NSW’s independence, accountability, and its ability to focus on its core mission -securing safe and healthy workplaces across the state.
The Standalone Regulator Act, which amended the WHS Act, also introduced a new governance model with:
- a dedicated SafeWork Commissioner, responsible for leading the regulator and setting its strategic direction; and
- a newly formed SafeWork Advisory Council, tasked with monitoring emerging risks and advising on regulatory priorities.
The NSW government has appointed Janet Schorer as the inaugural SafeWork NSW Commissioner, with Ms Schorer having over 27 years of public sector experience.
In an effort to create greater transparency, the SafeWork Commissioner is required to report every 6 months on the achievements, challenges, program management and regulatory engagement governance of SafeWork NSW. These reports will be posted on the SafeWork NSW website and include:
- the High-Risk Workplaces and Repeat Offenders program list and a summary of actions taken under that program;
- a summary of completed investigations and their outcomes, and where considered appropriate, a list of current investigations;
- a summary of the number and type of complaints by industry received by SafeWork NSW; and
- a summary of any action taken following advice received from the SafeWork Advisory Council.
The SafeWork Advisory Council has various functions, including the monitoring of emerging risks and trends in the field of work health and safety, advising the SafeWork Commissioner on the strategic direction and priorities of SafeWork NSW, and advising the SafeWork Commissioner or the Minister on any matters referred to the Council.
NSW's regulatory approach and priorities for 2025-26
SafeWork NSW has released its Annual Regulatory Statement outlining its key areas for attention over 2025 - 26. In 2025 - 26, SafeWork NSW will:
- strengthen enforcement of work health and safety laws, targeting large and high risk workplaces that are not providing safe systems of work;
- continue to target larger and well-resourced organisations with swift and strong regulatory action until satisfactory work health and safety improvements are made and sustained;
- maintain tight supervision of workplaces with dust exposure risks for workers; and
- enforce compliance with the duty of a business to consult workers on physical and psychosocial risks, and actions to manage them.
SafeWork NSW will also take specific actions to prevent or reduce the risk of death, injury and illnesses in NSW workplaces, with five priority areas for action:
- falls from heights;
- harms to workers in the health care and social assistance sector;
- managing psychosocial risks at work – including sexual harassment;
- exposure to hazardous substances including asbestos, crystalline silica and welding fumes; and
- injury from mobile plant, vehicles or fixed machinery.
Potential reforms in relation to digital work systems
On 6 August 2025, the NSW government introduced into parliament the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (NSW) (Bill).
Controversially, the Bill also includes reforms to the workers compensation regime in NSW and in particular, to modify the ability of workers to claim compensation when they suffer psychological injuries. Those changes were first included in the Workers Compensation Legislation Amendment Bill 2025 (NSW), but after that earlier bill had passed the lower house and was then referred to an indefinite upper house inquiry, the NSW government sought to reintroduce largely identical legislation in the form of the Bill. That approach by the NSW government has been heavily criticised by opposition parties, professional bodies and leading commentators. For detail on those broader reforms, please see our earlier articles here and here.
The Bill proposes changes to NSW’s work health and safety laws, by seeking to introduce a new section 21A into the WHS Act to place a new duty on all PCBUs that use a “digital work system” to ensure, so far as is reasonably practicable, that the allocation of work by, or using the digital work system, is without risks to the health and safety of any person.
A “digital work system” is defined to mean an algorithm, artificial intelligence, automation, online platform or software.
In meeting that duty, a PCBU must consider whether the allocation of work by, or using a digital work system, creates or results in any of the following risks:
- excessive or unreasonable workloads for workers at work in the business or undertaking;
- the use of excessive or unreasonable metrics to assess and track the performance of workers at work in the business or undertaking;
- excessive or unreasonable monitoring or surveillance of workers at work in the business or undertaking; or
- discriminatory practices or decision-making in the conduct of the business or undertaking.
In addition, PCBUs will be required to provide WHS entry permit holders reasonable assistance to access and inspect any digital work systems relating to suspected WHS contraventions.
In the second reading speech for the Bill, a little more detail was provided:
“The bill will also strengthen the powers of work health and safety entry permit holders to require relevant persons to reasonably assist in the access and inspection of digital work systems relating to a suspected contravention of the Work Health and Safety Act 2011. As an example, such matters that could be inspected are code or algorithms used in the digital system, performance metrics, records, data logs or audit trails produced by a digital system. Together, these new powers and duties will help to ensure that existing worker rights and protections are appropriately balanced with workplaces embracing new technologies to drive innovation and productivity. While advances in AI and digital services will drive rapid change both in and out of the workplace over the coming years, these changes must not come at the cost of the health and safety of workers. …”
This additional duty appears to be closely modelled on those previously proposed by the Greens party and are similar to recommendations made in the Senate’s Select Committee on Adopting Artificial Intelligence final report delivered in November 2024 to extend and apply the existing work health and safety legislative framework to the workplace risks posed by the adoption of artificial intelligence.
Some commentators have already argued that this “new” duty is unnecessary, given that PCBUs are already required to provide workers a safe work environment and to implement safe work practices and given the access that WHS permit holders currently enjoy. Others have expressed views that the imposition of a new and relatively ill-defined duty may simply operate to stifle innovation and change, and may lead to workplace disputation.
It is also unclear how the imposition of this new duty in NSW will operate in conjunction with the review to be undertaken by Safe Work Australia as to how to improve the harmonisation of the model work health and safety laws across Australia, as the number of specific jurisdictional differences are increasing.
Implications for employers
All of the above changes, when considered together with increased funding to SafeWork NSW and resulting increased enforcement activity, means that PCBUs and employers need to be even more vigilant in ensuring that they meet their WHS obligations.
In particular, PCBUs should:
- review their systems, policies and processes to ensure that they remain compliant with work health and safety laws and any mandatory Codes of Practice;
- understand and comply with the new rules relating to permit holder rights and provisional improvement notices;
- continue to conduct regular risk assessment to identify safety hazards, and to implement measures to eliminate (where possible) or control identified risks, including those that particularly arise from psychosocial hazards and from the use of artificial intelligence and automated decision-making in their operations; and
- ensure their officers fully understand their due diligence obligations to ensure that their PCBU is meeting all of its obligations.
