In brief
Recent changes to the Work Health and Safety Act 2011 (NSW) now make NSW Codes of Practice (Codes) legally binding, requiring a person conducting a business or undertaking (PCBUs) to take steps to be compliant with the Codes, or otherwise become open to penalties for breaching health and safety duties.
Recommended actions
Businesses should consider:
- Understanding the Codes that are relevant and apply to their business operations
- Reviewing existing safety management systems, including controls, policies and procedures to ensure alignment and compliance with the Codes
- Consulting with employees and relevant parties on any changes or identified risks after reviewing the existing policies
- Undertaking steps to ensure employees are aware of expectations and standards of work health and safety (WHS) in accordance with the Codes
- Delivering workplace training for directors, officers, managers and anyone else with WHS duties to understand their obligations under the Codes
- Maintaining clear records of risk assessments, reviews and resulting actions
In depth
Background
Compliance with WHS Codes approved by the NSW Minister for Work Health and Safety is now mandatory for PCBUs for the purpose of the Work Health and Safety Act 2011 (NSW) (Act).
While compliance with Codes was previously helpful to demonstrate that a PCBU was addressing its WHS duties, compliance with the Codes is now a health and safety duty.
Failure to comply with a health and safety duty is a breach of the Act and can attract significant penalties for the PCBU and its officers, depending on the category of the offence.
New obligation and legal status afforded to Codes
The obligation arises from amendments made to the Act made pursuant to the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025, which was assented on 3 July 2025 and introduced, amongst other changes, a new section 26A. The new section 26A changes the legal status of Codes by making them legally binding and requiring strict compliance from PCBUs.
There are currently 30 Codes in force in NSW.
A PCBU may only depart from an applicable Code and manage hazards and risks in a way that is different to the Code if the standard of health and safety provided by the PCBU is either equivalent to or higher than, the standard required under the Code.
This new mandatory measure is intended to lift the standard of WHS management in NSW workplaces and mirrors the requirements introduced in Queensland on 1 July 2018. See section 26A of the Work Health and Safety Act 2011 (Qld).
Other States and Territories, as well as the Commonwealth, have their own unique codes of practice which continue to be admissible in court proceedings as evidence of what is known about a hazard, risk or control. They may also be used to determine what is ‘reasonably practicable’ in the circumstances that the code relates to.
Source: Lexology
