Safety (compliance) first! Understanding the 2025 NSW Workplace Protections Amendments

On 13 October 2025, amendments to the Work Health and Safety Act 2011 (NSW) and Industrial Relations Act 1996 (NSW) came into effect, with the stated aim of establishing “the conditions necessary to drive tripartite collaboration” between employers, unions and the regulator with respect to workplace injuries and death.

The amendments have expanded the powers of unions, SafeWork NSW and the Industrial Relations Commission of New South Wales (IRC) in relation to work health and safety (WHS) matters and, notably, have increased the responsibility of NSW persons conducting a business or undertaking (PCBUs) to protect the physical and psychological safety of their workers, particularly those in industries:

1. covered by an applicable SafeWork NSW Code of Practice;
2. with a strong union presence or active Health and Safety Representatives (HSRs); and
3. of high risk of physical or psychosocial hazards.

This article will address the key changes and provide guidance on how PCBUs should respond.

Key Changes

Mandatory Compliance with Codes of Practice

PCBUs must now either comply with Minister-approved Codes or manage hazards and risks in a way that provides an equivalent or higher standard than required under the Code. This alters the nature of the Codes from guidance documents to legally enforceable minimum standards, mirroring the position already adopted in Queensland.

This change directly impacts PCBUs in industries with extensive Codes covering physical hazards such as construction, manufacturing, and warehousing. 

Accordingly, PCBUs should review all Codes applicable to their business or industry and ensure they have robust hazard management systems are in place. Industries with high-risk physical hazards face stricter compliance requirements under Codes, combined with enhanced union investigative powers. 

Industries with High Risk of Psychosocial Hazards

SafeWork NSW must now report every six months to the Minister about the number and types of complaints and notices relating to psychosocial matters in both the government and private sectors. While this amendment does not impose direct obligations on PCBUs in relation to psychosocial matters, the indirect implication is that SafeWork NSW will increase its scrutiny on complaints about psychosocial matters.

PCBUs should therefore expect increased scrutiny from SafeWork NSW in relation to psychosocial matters and strengthen their internal psychosocial hazard management systems.

Expanded Union Powers 

These amendments expand union powers in WHS matters across several major areas. Below is a summary table of the changes:

PCBUs should:

• ensure they engage proactively with unions and union representatives on safety matters before formal entry or enforcement action takes place;
• ensure robust compliance with WHS obligations to withstand enhanced scrutiny;
• prepare for more detailed union investigations involving objective evidence gathering; and
• maintain comprehensive WHS documentation to defend against potential union-initiated proceedings.

Provisional Improvement Notices to be provided to SafeWork NSW

Pursuant to the amendments, when an HSR issues a provisional improvement notice (PIN) to a PCBU, the PCBU must give a copy to SafeWork NSW as soon as practicable after it has been issued. Failure to do so could result in a maximum 50 penalty unit fine. This transforms PINs from private workplace matters into regulatory notifications, increasing accountability of PCBUs.

Confidential information obtained by SafeWork NSW in the exercise of functions under the WHS Act may now be disclosed to union representatives and HSRs, provided that:

• the matter was raised with SafeWork NSW by such persons; and
• the disclosure, access or use of that confidential information does not prejudice an ongoing investigation, prosecution or other exercise of compliance powers by SafeWork NSW.

Additionally, HSRs are now considered parties to WHS disputes and may, upon receipt of that confidential information or otherwise, give notice to the IRC about disputes, enabling direct participation in IRC dispute resolution processes.

In light of this, PCBUs should:

• implement immediate PIN notification processes to SafeWork NSW;
• engage proactively with HSRs to resolve safety concerns before PINs are issued; and
• prepare for HSRs to have access to investigation outcomes and participate in IRC dispute resolution processes.

Expanded Jurisdiction of IRC

The IRC now has jurisdiction to resolve disputes about WHS matters through mediation, conciliation or arbitration. This includes, but is not limited to, disputes with respect to work group determination and variation matters, access to information by HSRs, requests for workplace access by persons assisting HSRs, HSR training matters, health and safety committee matters, and cessation of work issues. It also now has jurisdiction to both conciliate and arbitrate workplace bullying and sexual harassment claims and enables the IRC to award damages to employees in cases of bullying, extending the IRC’s powers beyond those of the Fair Work Commission in dealing with bullying claims.

When dealing with disputes by arbitration, the Commission may make binding orders for prompt settlement, with penalties of up to 100 penalty units per contravention. 

These recent NSW WHS amendments have significantly increased union and regulatory powers, necessitating a proactive response from PCBUs. Bird & Bird can assist with reviewing WHS policies for Code compliance, advise on hazard management systems, managing union and SafeWork NSW engagement, and representing your interests in IRC dispute resolution.