Proposed amendments to the WHS Act

The following is from our associates at Kingston Reid Lawyers in Sydney. This article is written by Special Counsel Kate Curtain who is a senior member of the firm’s national safety and regulatory team. She can be contacted at Kate.Curtain@kingstonreid.com

Kingston Reid and Kate have kindly given us permission to reproduce a briefing given to us about the proposed amendments to the WHS Act for public view:

Date: 5 June, 2025.

Amendments have been proposed for the Work Health and Safety Act 2011 (NSW) (WHS Act).

The Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (NSW) (Bill) was introduced last week and proposed the amendments. 

This Bill is part of the reforms in relation to workers compensation that the state government has announced and also facilitates the introduction of an anti-bullying regime for the public sector and local government.

For WHS Act purposes, a summary of the proposed amendments is as follows:

Falling in line with Queensland…

• Requiring compliance with approved Codes of Practice or otherwise managing hazards and risks in a way that achieves an equivalent (or higher) standard that that required under the approved Code of Practice.   This amendment reflects the position in Queensland.  If this amendment proceeded, it would emphasise a need for duty holders to be aware of the requirements across approved Codes of Practice to ensure compliance.  

• Requiring the issue of Provisional Improvement Notices by HSRs to be shared with the regulator.

• Creating a new disputes avenue for ‘WHS Matters’.  This new Division 7A would allow parties (e.g., PCBUs, workers, HSRs and registered organisations such as unions) to take the dispute to the Industrial Relations Commission for issues that will constitute ‘WHS Matters’.  ‘WHS Matters’ is defined to include, but not limited to, work group determinations, requests by HSRs, health and safety committee matters and issues about the cessation of work.  The Industrial Relations Commission will be allowed to deal with the dispute as it sees fit (e.g., mediation, conciliation or arbitration) and parties will have to bear their own costs, unless the exception applies.  The effect of commencing this dispute will be that any involvement in the dispute by an inspector will have to stop and an inspector cannot subsequently be appointed to assist resolve the dispute.

Union focus

• Adding unions as eligible persons for the purpose of making internal review applications for a number of reviewable decisions (provided the union represents a worker(s) whose interests are affected by that decision).

• Clarifying that when union officials exercise right of entry to inquire into suspected contraventions of the WHS Act, they can take photos, videos, measurements or conduct tests relevant to the suspected contravention.

Prosecutions, with a continued union focus…

• Reducing the barriers for registered organisations such as unions to commence proceedings for an offence against the WHS Act.  Currently, this option is limited to commencing proceedings only if the regulator has declined advice from the Director of Public Prosecutions to do so and for Category 1 or Category 2 offences.  This amendment does not limit the type of offence the registered organisation can pursue.  If this amendment proceeded, registered organisations would only need to consult with the regulator about an intention to commence proceedings and if the regulator declined to commence proceedings, it then could.

• Allowing the limitation period for commencing proceedings to be extended, with leave of the court if the court is satisfied that it would be in the interests of justice.  This amendment follows the Prime Marble decision in the NSW Court of Criminal Appeal which concerned two workers exposed to silica dust who died from silicosis; the prosecution by SafeWork NSW was dismissed because it was out of time.  As explained by the relevant minister, Hon. Cotsis, this amendment "

  responds to situations in which there is delayed onset of injury or illness, such as in the case of some dust diseases, following a worker's exposure to a risk of harm.”

Information sharing

• Expanding the options for the regulator to share information with other agencies, including law enforcement agencies (e.g., the NSW Police Force and Australian Federal Police), and individuals.  These amendments include adding an exception to the current confidentiality requirement applicable to information and documents that are obtained when exercising a power or function under the WHS Act, which will allow certain individuals (e.g., officers of employee associations and HSRs) access to such information and documents provided they relate to the inspection, or investigation, of a matter raised by that individual with the regulator.    

The Bill can be viewed here.

We will continue to track this development, including any changes to the Bill.

Kate Curtain

Special Counsel

Kingston Reid

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us by email at train@courtenell.com.au or phone us on 02 9552 2066