Australia: Major safety and industrial relations reforms passed in NSW

On 26 June 2025, the NSW Government passed the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (Bill). The Bill contains significant amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) as well as the Industrial Relations Act 1996 (NSW) (and the Industrial Relations (General) Regulation 2020 (IR Regulations)).

The Bill builds on reforms implemented in 2023, such as re-establishing the Industrial Relations Court of NSW. The Explanatory Note to the Bill explains that it aims to address workplace bullying and sexual harassment, introduce civil penalties for such conduct, and strengthen provisions regarding gender equality in bargaining. The NSW Minister for Industrial Relations, Sophie Cotsis, has also stated that through these reforms, “the Government aims to establish the conditions necessary to drive tripartite collaboration to prevent workplace injuries and deaths.”

The law reforms have passed on the eve of SafeWork NSW becoming a standalone regulator on 1 July 2025.

Amendments to the Work Health and Safety Act 2011 (NSW)

The Bill introduces a range of major and far-reaching amendments to the WHS Act aimed at strengthening regulatory compliance and enforcement as well as granting unions significant new powers and influence. Many of the changes are in response to the Prime Marble decision in 2024 in which the NSW Court of Criminal Appeal quashed charges against a PCBU relating to the deaths of two workers from the lung dust disease, silicosis, on the basis that the prosecution was brought after the two year limitation period for commencing a prosecution had expired, as well as community expectations relating to holding PCBUs accountable for long latency injuries and illnesses, especially dust diseases.

Key changes include:

• A change to the legal status of Codes of Practice, making Codes of Practice approved by the Minister legally binding for PCBUs, unless the PCBU demonstrates it can manage hazards and risks in a different manner that provides a standard of health and safety that is equivalent to or higher than that required by the code. This brings the WHS Act in line with the position in Queensland and represents a significant change for PCBUs in NSW in terms of compliance.
• A requirement for PCBUs to promptly notify SafeWork NSW when provisional improvement notices are issued by health and safety representatives (HSRs). The failure to do so can result in a maximum penalty of 50 penalty units.
• Establishment of a direct line to the IRC for the resolution of disputes about ‘WHS Matters’. The proposed provisions allow PCBUs, workers, HSRs and unions to take a dispute about ‘WHS Matters’ (including but not limited to, work group determinations, requests by HSRs (including relating to access to information and training), health and safety committee matters and issues about the cessation of work) to the IRC to deal with the dispute as it sees fit (including by way of mediation, conciliation or arbitration). Inspectors are prohibited from any further involvement in a dispute taken to the IRC. Notice of a dispute taken to the IRC will be published on the NSW Industrial Relations website and parties will bear their own costs in the jurisdiction (unless an exception applies).
• Enhanced powers for union officials exercising entry powers to collect evidence of relating to suspected contraventions of the WHS Act, including conducting tests, measurements and taking photos or videos at a workplace.
• Expansion of the right to review decisions made under the WHS Act to unions representing a worker affected by a decision.
• Granting unions the power to initiate prosecutions under the WHS Act in circumstances where the union has consulted with SafeWork about its intention to bring proceedings and the regulator has declined to act or does not bring proceedings within 12 months of being consulted. This represents a change from the far more restrictive current position where unions are only permitted to commence proceedings for certain WHS offences (category 1 and 2 offences) where SafeWork declines to prosecution, the Director of Public Prosecutions then advises SafeWork that a prosecution should be brought and SafeWork again declines to act. Additionally, the proposed amendments require the regulator to notify unions when proceedings are brought and removes the prohibition on courts directing a portion of a fine imposed under the WHS Act as a moiety to a union.
• Empowerment of courts to allow prosecutions for offences to be brought after the two year limitation period has expired, where it is in the ‘interests of justice’ to do so. This is a particularly consequential change which the NSW Work Health and Safety Minister Sophie Cotsis announced was in direct response to the challenge of prosecuting occupational exposure diseases. However, the current drafting of the Bill does not limit the ‘interests of justice’ to these circumstances. Accordingly, this change could have major implications for PCBUs and other duty holders and result in uncertainty and confusion as to whether enforcement action will be taken by SafeWork.
• Loosening of confidentiality provisions, allowing information disclosure about inspections and investigations to unions, HSRs and families of deceased workers (so long as it does not prejudice an ongoing investigation or prosecution).
• Provision for the regulator to exchange and share information with other relevant agencies for work health and safety purposes. This may have major implications for PCBUs and other duty holders who may be facing investigation by multiple law enforcement agencies or statutory authorities at the one time, which is becoming an increasing occurrence in NSW.
• Clarification that WHS entry permit holders can investigate any additional WHS breaches that they come to “reasonably suspect while at the workplace”.
• Authorisation for registered organisations, in addition to regulators, to initiate WHS civil penalty proceedings on behalf of affected individuals and to claim any resulting monetary penalties.

The reforms proposed in the Bill will significantly raise compliance expectations for PCBUs in NSW. The reforms are set to accompany the administrative changes within the regulator commencing 1 July 2025, at which time SafeWork will start operating as a standalone regulator and establish an Advisory Council to allow for community informed input in SafeWork’s strategic direction and policy.

Amendments to the Industrial Relations Act 1996 (NSW)

Bullying, sexual harassment and gender equality

The Bill establishes an anti-bullying and sexual harassment jurisdiction within the NSW Industrial Relations Commission (IRC) in a proposed new Chapter 3A. In each of these regimes, civil penalties apply for breaches, and dual claims under anti-discrimination laws are restricted to avoid double compensation. These schemes fill the jurisdictional gaps by covering public sector, local government, and unincorporated entity workers not currently protected under federal laws.

Under the proposed anti-bullying regime:

• An employee who is bullied at work may apply for a ‘stop bullying order’, provided they are not covered by the Fair Work Act 2009 (Cth).
• Bullying is defined in accordance with the WHS Act, namely repeated unreasonable behaviour that ‘creates a risk to health and safety’ and excludes reasonable management action.
• The IRC is empowered to conciliate, arbitrate, and issue orders to stop and remedy the bullying. However, the Commission must first attempt to resolve the matter through conciliation, and if unsuccessful, proceed to arbitration. It may issue orders including compensation (capped at $100,000) and behavioural restrictions.
• Civil penalties apply for breaches, namely up to $18,870 for individuals or otherwise $93,900.

Under the proposed sexual harassment regime:

• The IRC will also have jurisdiction to handle workplace sexual harassment claims in a single forum. The Commission must attempt conciliation first, followed by arbitration if required.
• Chapter 3A includes an explicit prohibition of sexual harassment related to work, including a clarifying example that: "A visitor to a small business sexually harasses an employee of the business and the owner of the business (each a protected person). The visitor contravenes this section because the visitor has harassed the protected persons in connection with the protected person being either an employee or a person conducting a business."
• Sexual harassment is defined in line with the Sex Discrimination Act 1984 (Cth), including unwelcome advances or conduct that a reasonable person would find offensive, intimidating, or humiliating.
• Affected individuals or their representatives may apply for a sexual harassment order within 24 months of the incident.
• It may issue orders to prevent or remedy harassment, including compensation (capped at $100,000) and civil penalties.
• Vicarious liability applies unless the employer can prove they took all reasonable steps to prevent the conduct.

IRC functions and procedures

The Bill expands the IRC’s powers during disputes, including issuing recommendations or directions during conciliation, even without party consent, and requiring written reasons for non-compliance. It also empowers the IRC to make interim or final arbitration orders on interpreting industrial instruments, with a $25,000 civil penalty for breaches. Additionally, the IRC may conciliate, arbitrate, and make orders, including stop-bullying orders for affected employees.

Civil penalties and civil penalty proceedings

The Bill aims to consolidate and clarify how civil penalties are handled under the Industrial Relations Act. It establishes that only the IRC in Court Session or the Industrial Magistrate can hear civil penalty proceedings, with specific rules for sexual harassment and bullying cases. A new division (Chapter 7, Part 6, Division 2) outlines who can initiate proceedings, time limits, and how penalties are treated. The reforms also aim to ensure that civil penalties are not treated as criminal offences.  

These provisions will begin on a future date to allow system updates and communication within the NSW industrial relations system.

Principles of association

The Bill also aims to clarify and expand protections related to industrial associations. It affirms members' rights to participate in union activities, broadens protections against victimisation for employees and job applicants, and reintroduces a revised reverse onus of proof test for victimisation claims. This test requires the IRC to objectively assess whether the alleged reason was a substantial cause of the detrimental action, aligning with the Barclay case precedent. Limits are also placed on seeking victimisation orders when similar claims are already underway under anti-discrimination laws.

Amendments to the Industrial Relations (General) Regulation 2020

The Bill proposes to amend the IR Regulations to introduce additional civil penalty provisions and remove the prescribed maximum amount for small claims. Previously, there was a cap on the amount that could be claimed in small claims proceedings. This change, which increases the small claims jurisdiction threshold from $10,000 to $100,000, eliminates the set maximum limit, potentially allowing for larger claims to be processed under the small claim’s procedure.

Key takeaways

Having passed both Houses of Parliament, the Workplace Protections Bill is now awaiting assent before the amendments come into force.

We expect that there will be more details to come around the projected timing and impact of the proposed amendments soon.