NSW: A New Legal Environment for WHS Enforcement, Bullying and Harassment and Disputes over the provision of Suitable Duties to Injured Workers
The Industrial Relations and Other Legislation (Workplace Rights) Act was passed by Parliament on 26 July 2025 introducing sweeping changes to WHS enforcement, and creating a bullying and harassment jurisdiction in the Industrial Relations Commission(IRC) dramatically altering the compliance landscape for businesses:
- Unions can now prosecute WHS offences where the Regulator declines to do so—after mandatory consultation with the Regulator.
- Unions may receive a portion of the penalty imposed on the business following a successful prosecution.
- New rights for unions and workers include taking WHS related disputes and disputes about the return to work of an injured worker to the IRC. The IRC has the power to conciliate and arbitrate disputes about:
- Return-to-work for injured employees
- Access to safety information and training
- Health and safety committee issues
- Rights of workers to cease unsafe work
- The previous two-year limitation period for commencing WHS prosecutions can now be extended where it is deemed to be in the interests of justice.
- The IRC can make stop bullying orders and award damages up to $100,000 where there is bullying by public sector employers, sole traders and partnerships that are not governed by the Fair Work Act.
- The IRC can make orders to stop harassment and award damages up to $100,000 where there is harassment by public sector employers, and employers not governed by the Fair Work Act.
- Employers are vicariously liable for acts of their employees for the purpose of stop bullying and stop harassment applications.
The Workers Compensation Amendment Bill 2025 in its current form vests jurisdiction in the IRC to determine disputes about the “relevant event” alleged to have caused psychological injury and whether there was reasonable management action.
The IRC is now positioned as a central body to handle WHS prosecutions and disputes, disputes over the return to work of injured employees and whether there has been a relevant event to trigger a psychological injury claim.
The Workers Compensation Amendment Bill 2025 has been referred to an Inquiry by the Public Accountability and Work Committee with submissions due by 22 July 2025, a Hearing to take place on 29 July 2025 and a reporting date to be set by the Committee. The first sitting day of both Houses of Parliament after the Hearing is 5 August We will see if that’s time enough for the Committee to report back.
