Compulsory or recommendation: navigating NSW’s new WHS laws

A major reform to New South Wales’  Work Health & Safety Act has now come into effect – here's what your business needs to know.

As of 1 July 2026, the new duty to comply with approved Codes of Practice under section 26A of the Work Health and Safety Act 2011 (NSW) has come into effect. This is a landmark regulatory change for the state – but what does it actually mean for businesses?

In Australia, Workforce Health & Safety (WHS) laws operate at a state level, which means that each state and territory will have its own set of standards that businesses will need to follow.

In all jurisdictions except Victoria[1], these regulations are largely harmonised as these states have all adapted their legislation from model laws drafted by Safe Work Australia. However, they are still ultimately enacted and enforced as separate pieces of legislation and have been customised by each individual state and territory regulator.

Navigating these different regulatory landscapes can be quite challenging, especially for businesses operating across multiple states. There's no shortage of media coverage and government resources available on this subject, but this influx of information often makes it difficult to untangle exactly which actions businesses are required to take by law and which are guidelines for actions that they could take in order to meet their legal obligations.

Here's how it works:

Each jurisdiction's WHS framework is governed by three different types of legal instruments: Acts, Regulations and Codes of Practice.

Acts and Regulations form the governing legislation, which refers to the legally binding laws that outline broad legal obligations, overall objectives and what must be achieved. 

On the other hand, Codes of Practice sit below Acts and Regulations in the regulatory hierarchy. Where legislation sets out what must be achieved, a code explains how it could be achieved.  A code only has legal effect in a particular jurisdiction if it is an approved Code of Practice, meaning that it has been approved by the WHS regulator in that specific state or territory[2].

1. Acts – these are the primary piece of legislation passed by parliament. In WHS, Acts set out the overarching legal duties that apply to PCBUs, officers and workers, and establish the broad objective that a safe working environment must be maintained.
2. Regulations – these are subsidiary legislation made under the authority of the Act. Regulations provide more detailed and specific rules about how particular obligations under the Act are to be applied in practice.
3. Codes of Practice – these are not laws in their own right and are not mandatory unless expressly required by legislation. Instead, they offer an example of what is ‘reasonably practicable’ in order to achieve the objectives required by the legislation and provide detailed, practical guidance on identifying particular hazards and implementing appropriate risk controls.

Both Acts and Regulations are legally binding. A failure to comply with either constitutes a breach of the law and can result in penalties, fines or prosecution.

On the other hand, in most Australian states outside of Queensland a business that departs from an approved code can still demonstrate compliance, provided it still meets the required objectives outlined in the legislation. However, for all jurisdictions, approved WHS Codes of Practice are admissible in court proceedings as evidence of whether a duty or obligation under the Act has been complied with. 

What’s changing in NSW?

When the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill assented[3], it inserted a new section 26A into the Work Health and Safety Act 2011 (NSW)[4] that creates a statutory duty for PCBUs to comply with approved Codes of Practice.

This means that as of 1 July 2026, all approved WHS Codes of Practice are now legally enforceable minimum standards – and compliance is no longer optional.

Wherever the relevant minister has approved a Code of Practice, a person conducting a business undertaking (PCBU) must either comply with that code or demonstrate that it has an alternative approach – such as a technical or an industry standard – achieves a standard of health and safety that is equivalent to, or higher than, the standard set out in the code.

Within these codes, the terms ‘must’, ‘should’, and ‘may’ are also used to indicate legislative expectations[2].

• Must – represents a requirement that is typically a duty by law that PCBUs must comply with.
• Should – is used to identify the standard required by a code. PCBUs can only manage the identified hazard or risk in a different way if doing so provides an equivalent or higher standard of work health and safety than the standard required by a code.
• May – indicates an optional course of action, or something that may also be done.

This change applies to all of the more than thirty approved codes of practice currently in force in New South Wales – which means all businesses operating in this jurisdiction must review all their control measures to ensure they meet the standards set out in the relevant code of practice.

Another important factor that business should be aware of, is that a number of New South Wales’ approved WHS Codes of Practice include reference to Australian Standards.

Australian Standards are not laws, so there is no legal requirement to conform or comply to a Standard – unless there is a law which says you must conform with it.

In this case, compliance with a WHS Code of Practice means you must comply with the relevant Australian Standard referenced in that code, and a failure to do so may result in a breach of the WHS laws[5].

A full list of all Australian Standards referenced in New South Wales’ WHS Regulation can be found on the SafeWork NSW website.

Queensland introduced similar legislation in 2018[6], and currently these two states are the only juristictions in Australia where PCBUs have a statutory duty to comply with WHS Codes of Practice. While in all other states, non-compliance is not an offense in itself, a court may admit an approved code as evidence of what is known about a hazard or risk and of what is reasonably practicable to do about it.

What you need to do now

In practice, this change means that businesses will need to review their New South Wales operations against all of the relevant WHS Codes of Practice that apply to the work being done and ensure compliance – and with these new laws in force you cannot afford to wait.

Compliance isn’t just a requirement, it’s a competitive advantage. Strong systems protect your people, reduce the risk of business disruption, and prove to stakeholders that you are someone they can trust.

An effective way to manage compliance with WHS legislation is to establish a legal register that outlines all the health, safety, and environmental legislation and guidance that applies to your business. This includes obligations under local, state, and federal laws, as well as any relevant codes of practice or industry-specific requirements. 

It is also strongly advisable that your legal register is reviewed annually, and to undertake a gap assessment to link the register to your business operations.

WHS legislation is evolving rapidly across Australia, and jurisdictional differences are only making it more challenging for businesses to stay ahead of the curve.

Our mission at Peter J Ramsay & Associates is to help businesses eliminate the guesswork. Every organisation is unique, and an effective solution needs to be grounded in a deep understanding of your objectives and real-world operational needs.

If you are unsure whether your current polices meet New South Wales new standards, our multi-disciplinary team can conduct assessments and audits to gain a proper understanding of how your businesses operates and then work with you to provide tailored strategies that protect your people, safeguard your operations and enhance your reputation.

Giorgia McGuigan

03 9690 0522 (Melbourne)
02 83381655 (Sydney)