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Summary
- From 1 July 2026, approved codes of practice in NSW are legally enforceable, meaning businesses must either comply or prove their alternative controls meet an equivalent standard.
- Union entry permit holders now have expanded powers to inspect digital work systems where a WHS breach is suspected.
- A recent court decision resulted in a $472,500 fine after a worker’s death, highlighting that simple, well-known safety controls must be in place before an incident occurs.
- This article is a plain-English guide to recent work health and safety (WHS) developments in New South Wales, written for business owners and officers operating in NSW.
- It has been prepared by LegalVision, a commercial law firm that specialises in advising clients on work health and safety law.
Tips for Businesses
Review which codes of practice apply to your operations and conduct a gap analysis. Document how your controls meet or exceed each code’s requirements. Establish formal isolation procedures for plant maintenance, assign clear WHS responsibilities, and ensure all training is recorded before any incident occurs.
Staying informed about Work Health and Safety (WHS) developments is an ongoing obligation for officers and business owners. This round-up examines the latest updates in WHS, including:
- the commencement of enforceable codes of practice in NSW;
- expanded union powers; and
- recent court decisions demonstrating the consequences of inadequate safety systems.
These updates are intended to assist officers in meeting their duties and keeping pace with regulatory changes that affect their businesses.
Legislative Updates
Codes of Practice Become Mandatory in NSW
From 1 July 2026, approved codes of practice in NSW are no longer guidance documents. Under the Work Health and Safety Act 2011 (NSW) (WHS Act), Persons Conducting a Business or Undertaking (PCBUs) must now either comply with any relevant codes or demonstrate that they have implemented alternative risk control measures that achieve an equivalent or higher standard of WHS.
This change gives codes of practice much greater legal effect. Previously, they served as guidance and evidence of good WHS practice, but failing to follow a code was not, by itself, a breach. Now, approved codes are legally enforceable. If your business does not follow a code, you must be able to prove that your alternative approach provides the same or a higher standard of safety.
What This Means in Practice
If a SafeWork NSW inspector attends your workplace and identifies that your approach departs from an applicable code, you will need to justify that departure with documented evidence.
It is not sufficient to rely on good intentions or general assertions that your approach is adequate.
You must be able to demonstrate that your controls achieve the same or better health and safety outcomes, follow the hierarchy of control, and are based on current WHS knowledge and best practice.
SafeWork NSW does not need to prove that an incident or injury occurred. If a person or business fails to meet the standards in an applicable code of practice, SafeWork NSW may treat that failure as a breach on its own. This is a major change from the previous approach.
Regulators usually had to show that a PCBU failed to eliminate or minimise risks so far as was reasonably practicable. In many cases, they also relied on evidence from an incident that had already occurred.
Penalties and Consequences
The penalties for non-compliance are significant.
For PCBUs, a failure to comply with WHS duties constitutes a category 3 offence, with maximum penalties of up to $133,540 for individuals. SafeWork NSW does not need to prove that an incident or injury has occurred. Simply failing to meet the standards in an applicable code may be sufficient to establish a breach.
Officers of PCBUs face separate personal liability. Officers who fail to exercise due diligence face personal fines up to approximately $447,000 for a category 2 breach and up to $2.3 million plus potential imprisonment for category 1 offences.
Financial penalties are not the only risk. Enforcement action can disrupt business operations, increase regulatory scrutiny, and damage a business’s reputation. Unions can also bring strategic or test cases, especially where businesses fail to manage psychosocial hazards or consult workers properly. As a result, businesses should expect closer scrutiny of their WHS decisions, records, and consultation processes.
What Businesses Should Do Now
Review the current codes of practice and determine which are applicable to your operations. This should be followed by a structured process to ensure compliance, which typically involves:
- confirming code of practice applicability;
- undertaking a gap analysis against code requirements to identify areas of non-compliance;
- prioritising remediation actions;
- implementing appropriate controls;
- verifying that controls meet the required standard; and
- validating and recording compliance so that it can be demonstrated if required.
The emphasis is not just on having controls in place, but on being able to clearly evidence that those controls meet or exceed the standard set by the relevant code of practice.
Officers should take active steps to acquire and maintain up-to-date knowledge of which codes apply to their business, whether the business is compliant, and whether appropriate processes are in place and working in practice.
Digital Work Systems Guidelines in Development
SafeWork NSW is currently developing guidelines for the new union entry permit holder powers under the Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) (DWS Act). These guidelines will explain when union officials can require PCBUs to provide reasonable assistance so they can access and inspect digital work systems. This includes systems that use algorithms, AI, automation, or online platforms where they suspect a WHS breach.
The guidelines are being developed through a staged consultation process, including targeted stakeholder engagement and broader public consultation. Once finalised and published, the new entry permit holder powers will commence at least one month later.
The DWS Act also clarifies that a PCBU’s existing duty of care extends to managing risks arising from digital work systems, including:
- risks from work allocation through digital systems;
- surveillance and monitoring of workers; and
- decision-making processes that utilise digital technology.
PCBUs should monitor the development of these guidelines and prepare for the commencement of the expanded entry permit holder powers. This includes:
- reviewing how digital work systems are used across the organisation;
- assessing associated health and safety risks; and
- ensuring appropriate documentation and risk management processes are in place.
Cases and Incidents
A recent decision of the NSW District Court demonstrates the severe consequences of inadequate safety systems and the importance of implementing proper controls before an incident occurs.
What Happened?
A company was convicted and fined $472,500 after a worker was fatally crushed by a feed wheel whilst clearing a blockage in a green waste grinder.
Note that the company also received a 25% discount for an early guilty plea.
What the Court Found
The court identified multiple systemic failures that contributed to the incident:
- the grinder had no formal isolation procedures;
- workers did not consistently use the safety bar, and no system monitored compliance;
- training was informal, undocumented, and unverified;
- no one had clear responsibility for WHS, and supervision was inadequate;
- risk assessments did not address the crush hazard created by the modified toggle switch; and
- the Safe Work Method Statement was inadequate, and workers were not trained to follow it.
The court found that the risks associated with workers entering a plant to perform maintenance tasks are well-known in the industry, as is the need to properly isolate plants before such work. The control measures that should have been implemented were straightforward and not unduly expensive.
Post-Incident Actions That Should Have Been Taken Earlier
Following the incident, the company implemented significant safety improvements that the court noted would have prevented the tragedy. These included:
- decommissioning the grinder and sending it to engineers for modification to install a mechanically-inserted safety mechanism;
- developing and implementing formal lock-out procedures;
- introducing structured training programs for all workers operating the grinder;
- removing the modified toggle switch that created the crush hazard;
- implementing a two-person requirement for all maintenance tasks, ensuring supervision and assistance; and
- engaging external providers to re-train and re-induct all employees.
The court accepted that these steps demonstrated a strong commitment to workplace safety and good prospects of rehabilitation.
The court made clear that these measures should have been in place before the incident occurred.
Key Takeaways
This case shows that businesses must implement proper safety systems before an incident occurs. The required controls were simple, well-known, and readily available.
The court found the offence was objectively serious because the risks were obvious and foreseeable, the potential consequences were catastrophic, and simple, low-cost steps could have reduced or eliminated the risk.
Where these factors exist, a court is likely to treat the offence as serious, even if an incident was unlikely to occur.
To avoid similar outcomes, businesses should:
- implement formal isolation procedures for plant and equipment during maintenance;
- ensure workers use safety devices and verify compliance;
- provide documented training and assess workers’ understanding of safety procedures;
- clearly assign WHS responsibilities and provide adequate supervision;
- conduct risk assessments that address all hazards, including equipment modifications; and
- regularly review and update Safe Work Method Statements to keep them clear and task-specific.
The incident cost the business far more in fines and reputational damage than it would have cost to put proper safety systems in place from the start.
Questions?
If you need legal assistance with a WHS matter or need help identifying an officer, book a consultation call on Prism. As a member, you can request unlimited legal advice consultations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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