Recent developments in work health and safety law

The latest issues, decisions and proposed changes impacting business and workplace risk 14 min read

Redundancy process poses 'serious and imminent risk of psychological harm'

By Sam Betzien, Emma Gillman and Cleo Gamlin 

PCBUs must be proactive in managing psychosocial hazards and risks

SafeWork NSW recently issued a prohibition notice to halt a redundancy process at the University of Technology Sydney (UTS), on the basis that workers would be exposed to a serious and imminent risk of psychological harm if the process proceeded as planned. The notice has since been lifted, following engagement between SafeWork NSW and UTS.

Key takeaways

• This is the first time we are aware of that a safety regulator has issued a prohibition notice in relation to a workplace redundancy process. This reflects the regulator's increasing focus on psychological health and safety, including in 'white collar' workplaces.
• Persons conducting businesses or undertakings (PCBUs) must proactively manage psychosocial hazards and risks when consulting with employees about workplace matters—a reactive approach is not enough.
• Psychosocial hazards and risks must be managed in the same way, and treated with the same importance, as any other health and safety issue.

Background

UTS launched its 'Operational Sustainability Initiative' late last year. The aim of the initiative is to boost its surplus to $94 million by 2029, through various cost-cutting measures, including job cuts.

On 2 September, approximately 800 staff were invited to attend meetings to discuss the possible loss of 150 academic jobs. The meetings were scheduled to take place on 3 September, and the change proposal was set to be released on 4 September.

On 2 September, SafeWork NSW issued a prohibition notice to halt the redundancy process, on the basis that 'workers are, and will be, exposed to a serious and imminent risk of psychological harm from actions taken, and planned'.¹ It ordered UTS to consult with staff in accordance with applicable laws and instruments, and to ensure that any eventual release of the change proposal included management of psychosocial risks.

The notice has since been lifted, following engagement between SafeWork NSW and UTS.

An interventionalist approach going forward

Under the Work Health and Safety Act 2011 (NSW), an inspector may issue a prohibition notice if they reasonably believe that an activity is occurring, or may occur, at a workplace that involves a serious risk to health or safety because of an imminent exposure to a hazard.

Historically, prohibition notices have been used to halt high-risk activities that pose a serious and imminent risk to workers' physical health and safety.

However, SafeWork NSW's issuing of the prohibition notice in this case is reflective of its increasing focus on the management of psychosocial hazards and risks, including in 'white collar' workplaces.

PCBUs must ensure that they are taking a proactive approach to the management of psychosocial hazards and risks—as with the management of all other health and safety issues, a reactive approach is not enough.

Safe Work Australia best practice review 

By Sam Betzien and Fiona Austin 

There's still time for businesses to have their say

Safe Work Australia is undertaking a best practice review of the model Work Health and Safety Act (the model WHS Act) and model WHS Regulations. A discussion paper has been released and public consultation is open until 3 November 2025.

There is a range of potential outcomes, extending to specific regulation of new industries and work types, and even national regulation under a single Commonwealth regime.

Key takeaways

• The best practice review is a broad-ranging inquiry likely to result in significant policy and regulatory changes to Australia's model WHS legislation.
• Businesses and industries now have the opportunity to comment on the impacts of WHS regulation on their business, and to lobby for changes to the existing regulatory context.
• There is also real potential for an expansion of WHS regulation to address emerging industries, work types and technologies, so stakeholders in industries that have not previously been the subject of prescriptive regulation should still carefully consider making submissions at this time.

The review

Safe Work Australia is undertaking a best practice review of the model WHS Act and model WHS Regulations, to identify opportunities to strengthen and maintain harmonisation of WHS laws, and ensure the laws reflect contemporary best practice. The aim is to ensure the model laws provide the highest level of protection for workers.

To set the scene, trends in current performance data have been analysed. It is reported that in 2023, 200 workers died from traumatic injuries while working. The fatality rate has dropped 19% since 2013, but has failed to reduce further in recent years. Serious injuries were also analysed. Mental health conditions now account for an increasing proportion of serious injuries, at 10.5%—a 97.3% increase since 2013.

Inconsistency in harmonisation across Australian jurisdictions

A central theme of the review is jurisdictional harmonisation. Although all Australian jurisdictions except  Victoria have now adopted the model WHS laws, jurisdictions have increasingly made variations within their own versions of them. This has resulted, in part, from various jurisdiction-specific reviews taking place since harmonisation.²

The review considers that unnecessary inconsistency creates confusion and inequality, and weakens national productivity.

For example, at the legislative level:

• Victoria maintains separate legislation and has not adopted the model laws.³
• Queensland maintains distinct electrical safety legislation⁴ and industry-specific legislation for mining.⁵
• The Commonwealth maintains separate regulatory schemes for offshore oil and gas and electricity.⁶

Further, the review notes significant differences between the jurisdictions where the model laws are applied. For example:

• South Australian obligations for management of risk are specifically expressed as qualified by the extent of influence or control.⁷
• Many jurisdictional variations exist in relation to consultation, representation and participation provisions, including differing union right of entry regimes between each jurisdiction.⁸
• Queensland, South Australia, Western Australia and New South Wales have distinct dispute resolution processes and rights to refer different types of matters to tribunals for resolution.⁹
• Many jurisdictional differences exist between the structure and powers of regulators, including independent regulators and prosecutors in some jurisdictions.¹⁰
• Legal proceedings are approached separately in each jurisdiction, including differing limitation periods, an intent to enable unions to initiate prosecutions in New South Wales¹¹ and differing rights for individuals to request prosecutions if they are not brought.¹²
• Infringement notice schemes are applied differently between each jurisdiction, with the model laws not having been included in Western Australia, ACT, Queensland and the Northern Territory.
• Significant jurisdictional differences exist in the applicable penalties for offences generally,¹³ with only the Commonwealth and ACT having adopted the latest updated model laws.¹⁴
• Material variations in industrial manslaughter offences exist between jurisdictions, including in relation to the elements of the offence, the duty holders covered and the maximum penalties that apply.¹⁵
• There are differences in WHS Regulations, including Western Australia's regulation of tobacco and vaping,¹⁶ New South Wales's regulating of delivery riders,¹⁷ Queensland's regulating of quad bikes¹⁸ and amusement devices,¹⁹ Western Australia having a different regime for high-risk work licences, and variations in the regulation of psychosocial risk.²⁰
• Many jurisdictional differences exist for construction work and high-risk construction work, including South Australia regulating falls over 3 metres rather than 2 metres, as in other jurisdictions,²¹ differences in the value of construction projects regulated under the regimes, and variation between requirements and licensing for demolition work.²²
• Codes of practice vary significantly between the jurisdictions.²³

The review seeks input on the impacts of this lack of harmonisation and how the harmonisation objective can be strengthened.

The discussion paper raises various potential solutions, such as harmonised data reporting together with independent monitoring of outcomes, and even goes so far as to hint that consideration might be given to a national legislator based on referral of powers to the Commonwealth.

A focus on particular industries and work types

The review highlights that the WHS Regulations reflect historical concerns of the periods in which they were developed, focusing heavily on high-risk physical labour in industrial settings.

Viewed through a modern lens, some industries are conspicuously underrepresented, including agriculture, road transport, accommodation and food services, public administration and safety, health care and social assistance.

The review seeks to explore whether additional industries or work areas should be specifically targeted by additional regulation. Consideration is given to whether criteria should be developed to establish what types of matters should be included within Regulations and Codes.

Australian Standards

The review identifies that some Australian Standards are called up as mandatory in various jurisdictions, and that this creates cost and compliance issues, particularly when standards are updated.

It is seeking submissions on the use of Australian Standards in WHS regulation and how this should be addressed.

Changing nature of work

The review undertakes a scan of the environment, noting major transformations in the nature of work and the resulting hazard profile.

Flexible, remote and hybrid working arrangements are explored. The report identifies that by 2023, 36% of workers were working from home²⁴ but that this creates an emerging risk profile associated with psychosocial risks, sedentary work and blurred work life boundaries, as well as emerging concerns regarding workplace surveillance.

Demographic changes are also flagged, with the workforce now spanning five generations.²⁵ Migration and diverse linguistic contexts are noted as well. Risks associated with increased vulnerability to hazards and additional risks, such as discrimination, are identified.

Labour shortages in key industries are also addressed, along with labour market changes, and a shift towards service-based industries and clean energy sectors.

Non-standard work arrangements are mentioned.²⁶ Digital platform work and the gig economy are examined, with the review recognising that WHS roles and responsibilities for this context may not be clearly defined under the existing regulatory regime.

The review seeks input as to whether or not these changes require modifications to be made, to achieve best practice regulation for this emerging context.

Digital technologies

Digital technologies are a particular focus, including robotics, drones, wearables, smart personal protective equipment and artificial intelligence. These offer significant potential to improve WHS outcomes and also present new risks.

The review notes that recent government inquiries have recommended that the existing WHS legislative framework be extended to address workplace risks posed by the adoption of artificial intelligence,²⁷ and recorded the serious risks associated with increasing digitisation.²⁸

It is suggested that the existing WHS regulation will be tested by these new developments, and input is sought on how this should be addressed in this regime.

Regulating the algorithm: NSW proposes new duties for digital work systems

By Nathan Shannan 

PCBUs should review their existing digital systems now

The New South Wales Government has introduced the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (the Bill)²⁹ proposing specific WHS obligations on PCBUs using digital work systems. The Bill also expands union rights to inspect these systems for suspected non-compliance.

Key takeaways

• If the Bill is passed, PCBUs would need to ensure, so far as reasonably practicable, that the way digital work systems allocate work does not create risks to health and safety.
• PCBUs should proactively review and audit existing digital systems to identify whether they may compromise health and safety, including through excessive workloads, unrealistic performance metrics, intrusive monitoring or discriminatory outcomes.
• They should also be aware that WHS entry permit holders would gain expanded rights to access and inspect digital platforms, and underlying data, where a contravention is suspected.

A new duty

Under existing WHS laws, PCBUs have a primary duty to provide a safe workplace and to manage risks to health and safety so far as is reasonably practicable.³⁰ While this obligation extends broadly to systems of work, the obligation has not previously singled out 'digital work systems' and their allocation of work as a distinct source of risk.

The Bill marks the first time in Australia that digital work systems would be expressly regulated under work health and safety laws. It broadly defines these work systems as:

• algorithms;
• artificial intelligence;
• automation;
• online platforms; or³¹
• software

The Bill proposes the creation of a new section 21A that would establish two mandatory obligations for PCBUs:

• to ensure, so far as is reasonably practicable, that the way digital work systems allocate work does not expose any person to health and safety risks; and
• to consider whether the use of digital work systems creates or contributes to specific risks, comprising:
  • excessive workloads;
  • unrealistic performance metrics;
  • intrusive monitoring; or
  • discriminatory outcomes.

The Bill also requires PCBUs to provide reasonable assistance to WHS entry permit holders seeking to inspect a digital work system connected with a suspected contravention.

Moving forward

For many PCBUs, digital platforms and algorithmically optimised software are already embedded in rostering, work allocation and performance monitoring. If the Bill becomes law, the deployment of these systems will be treated as a WHS matter in their own right, rather than sitting only under the general duty to provide a safe workplace.

PCBUs should integrate digital systems into their WHS risk frameworks, paying particular attention to psychosocial risks such as workload intensification and intrusive monitoring.

The Bill is currently before the NSW Parliament, and remains subject to debate and potential amendment. We will keep you updated.

Managing biological risks in the workplace: Safe Work Australia’s draft Code of Practice

By Isabel Horsley 

Employers must assess their risk and be prepared to manage it

Safe Work Australia's draft model Code of Practice on managing biological hazards in the workplace (the Code) is intended to apply to any workplace where workers or others may be exposed to biological hazards, which include bacteria, viruses and mould.

Key takeaways

• If approved, the Code, released 24 July 2025, will provide practical guidance for employers on identifying, assessing and controlling biological hazards.
• Unlike existing Codes of Practice that focus on specific high-risk industries, the Code would apply broadly to all workplaces where biological hazards may be present.
• Duty holders would be required to identify biological hazards, assess associated risks, and implement appropriate control measures according to the hierarchy of controls.
• Codes of Practice set out known hazards, risks and controls, and illustrate what is generally required for compliance.

Industries at risk

The Code emphasises that biological hazards can occur in all industries and workplaces, including both indoor and outdoor settings. However, it identifies the following industries as presenting a higher risk of exposure:

• laboratory and research facilities;
• health and human services, including education;
• agriculture, animal and food industries; and
• construction and mining.

Practical guidance for employers

If implemented, the draft Code will join a suite of existing model Codes of Practice that provide practical guidance to employers on how to fulfil their health and safety duties under the model WHS Act and Regulations.

It encourages employers to follow a four-step risk management process to eliminate or minimise exposure to biological hazards so far as is reasonably practicable, by:

1. Identifying hazards: Understand potential sources of biological hazards and how employees and others may be exposed, taking into account the industry, work activities and environment. Recognise that not all biological hazards may be reasonably foreseeable.
2. Assessing risks: Consider the likelihood and consequences of exposure, and evaluate the effectiveness of existing control measures.
3. Controlling risks: Implement the most effective measures, from removing sources of biological hazards entirely to using automated systems to reduce exposure.
4. Maintaining and reviewing control measures: Regularly inspect the workplace, analyse records and data, and consult with workers to ensure controls remain effective and current.

Next steps

Public consultation on the Code closed on 4 September 2025. Safe Work Australia will now review submissions before finalising it for consideration by Commonwealth, state and territory WHS ministers. If approved, it will become a model Code of Practice in each jurisdiction. The process is expected to be finalised by early 2026.

Approval would represent a significant shift in Australia's WHS framework, placing a clear obligation on employers to proactively manage biological hazards in the workplace. Employers should begin assessing their risk of exposure to biological hazards, and be prepared to implement appropriate processes, training and controls to manage these risks.

Strengthened safety: work health and safety reforms pass in New South Wales

By Nathan Shannan 

Big changes include new powers for unions and regulators

The recent enactment of the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW)³² (the Act) guarantees significant changes to work health and safety laws in New South Wales, and expands the powers of unions, regulators and the Industrial Relations Commission (the IRC).

Key takeaways

• The Act makes important amendments to both the Work Health and Safety Act 2011 (NSW) and the Industrial Relations Act 1996 (NSW), raising baseline compliance obligations for PCBUs.
• PCBUs should be aware that timeframes and processes for WHS prosecutions have been broadened, as well as potential enforcement avenues.
• The IRC now has jurisdiction over anti-bullying and sexual harassment matters affecting employees in the New South Wales public sector, reinforcing the growing regulatory emphasis on psychological health and safety.

Binding Codes of Practice

PCBUs will need to comply with any relevant Code of Practice, unless they can demonstrate that alternative measures deliver an equal or higher level of safety. Previously (and as is the case in most harmonised states), these codes served as guidance on what might constitute 'reasonably practicable' steps in defending an alleged safety breach.

Moving forward, once a Code of Practice is approved by the Minister, it will become a legally binding standard. PCBUs should ensure they are either fully compliant with applicable Codes of Practice, or otherwise demonstrate that alternative safety measures offer equivalent or higher standards of protection.

Expanded union and IRC powers

The Act significantly increases the role of both unions and the IRC in WHS matters.

The reforms that broaden the rights of unions and their officials in relation to WHS enforcement include:

• union officials with entry permits may now take photographs, videos and samples on site, and are not confined to the suspected contravention that justified the initial entry; and
• unions may commence prosecutions where SafeWork NSW declines to act.

The reforms that expand the IRC's jurisdiction in both WHS and workplace conduct matters include:

• to resolve WHS disputes such as disagreements over health and safety representative training or work group arrangements. We think it is likely that issues that cannot settle internally or with a SafeWork representative may escalate more quickly to a tribunal setting; and
• to hear bullying and sexual harassment complaints from public sector and local government employees not covered by the federal workplace system. The IRC may attempt conciliation and, if necessary, issue binding orders or award compensation of up to $100,000.

Amended prosecution timeframes and notification requirements

Previously, a prosecution generally had to be brought within two years of an incident first coming to a regulator' attention. Courts may now exercise discretion to permit cases to proceed outside that window if it is in the 'interests of justice' to do so. This shift particularly affects matters involving long-latency conditions, such as dust diseases and asbestos-related conditions, including silicosis.

PCBUs are also obligated to notify SafeWork NSW upon receipt of a Provisional Improvement Notice issued by a health and safety representative. Non-compliance may attract a maximum penalty of 50 penalty units. Too, the Act enables SafeWork NSW to share more information with unions, health and safety representatives and families of victims, and to enter information-sharing arrangements with other regulators.

Psychosocial safety on the agenda

The reforms carry on a trend whereby psychological health and safety continues to have greater emphasis. SafeWork NSW must now report every six months on psychosocial complaints and enforcement activity, and has also appointed additional inspectors with a focus on hazards such as bullying, harassment, stress and fatigue.

PCBUs should be aware that, consistently with previous years, psychosocial risks should be treated and viewed with the same degree of seriousness as physical hazards. Any policies and risk assessment should reflect this sentiment.