NSW government plans to allow greater union involvement in work sites, among work health and safety changes

If passed, many organisations should be prepared for greater union involvement at their worksites, and managers will need to understand the new powers of permit holders so they do not hinder or obstruct them from carrying out their legal function.

Civil penalties for civil breaching a stop bullying or sexual harassment order will also be introduced.

The finalised Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (Bill) was introduced to NSW Parliament on Tuesday 27 May by Minister for Industrial Relations Sophie Cotsis.

Notably, the legislation will make it easier for unions in NSW to prosecute a ‘person conducting a business or undertaking’ (PCBU), allow proceedings to be brought after the two-year limitation period in certain circumstances, expand rights of entry permit holders to investigate suspected WHS contraventions at worksites and introduce increased penalties for workplace bullying and sexual harassment.

Prosecution process simplified

The process for unions to initiate prosecutions for breaches of the Work Health and Safety Act 2011 (NSW) is simplified under the bill, resulting in a union being able to bring a proceeding for any WHS offence after it has consulted with the regulator about its intention to do so, and the regulator has either declined to act or failed to commence proceedings within 12 months of being consulted.

Currently, unions can only prosecute for specific offences if SafeWork NSW declines to act following an investigation, and there has been referral to the Director of Public Prosecutions.

Cotsis, during her second reading of the bill, said: “allowing the union greater ability to commence proceedings against contravening organisations will aim to deter offending behaviour”.

Significantly, the current prohibition on unions being awarded a portion of the penalty following a successful prosecution, known as a ‘moiety’, will be removed, meaning that the courts can direct part of a fine or other penalty to be paid to the prosecuting union organisation.

For example, if a court imposes a penalty of A$1 million (approx. US$649,000) against a corporate organisation, the union can seek a moiety of A$500,000, which may encourage unions to bring prosecutions against organisations for WHS contraventions.

Limitation periods eased

The new legislation will also create an opportunity for prosecutions to be brought against PCBUs beyond the current two-year limitation period “if it is in the interests of justice” and with the court’s approval.

Cotsis indicated that this extension is likely to be granted is cases where injury or illness is delayed after a worker was initially exposed to the risk of harm. This could significantly affect high-risk industries such as tunnelling and granite mining, where dust-related diseases like silicosis often take years to develop.

In June 2024, the NSW Court of Criminal Appeal quashed WHS charges against a PCBU after two workers died of silicosis because it was beyond the two-year limitation period.

In that case, SafeWork NSW had laid charges against Prime Marble and Granite Pty Ltd almost four years after the two-year limitation period had expired. Although SafeWork NSW did not learn of the deaths until 2021, the limitation period started in 2017 when a SafeWork NSW inspector had first identified unsafe levels of crystalline silica dust at the PCBU’s premises.

Rights to investigate work sites expanded

Rights of WHS entry permit holders to enter a worksite and investigate suspected contraventions of WHS laws are also be enhanced under the bill, with new powers given to permit holders including the ability to take measurements and conduct tests and take photos and videos relevant to suspected WHS breaches at the site.

The entry permit holders’ new powers include the right to conduct air monitoring, which will be relevant for organisations in the tunnelling and granite mining industries where poor air quality and dust-related diseases are prevalent.
Additionally, there will be enhanced notification and information sharing requirements, including:

• mandated notification of provisional improvement notices to SafeWork NSW when a health and safety representative issues a organisation with a provision improvement notice. This change is aimed to help improve the data given to SafeWork NSW in relation to health and safety issues on worksites;
• disclosure of confidential information to an employee association officer, organisation officer or health and safety representative in relation to an inspection or investigation raised by these persons, so long as it does not prejudice, for example, ongoing investigations or prosecutions; and
• greater transparency between the regulator, other agencies, and individuals.

Higher penalties and new stop orders for workplace bullying and sexual harassment

Significant changes to how workplace bullying and sexual harassment are addressed are introduced in the Bill, with important implications for both organisations and workers. These proposed changes currently apply to public sector and local government workplaces, and it is unclear whether they will extend to the private sector, with further clarification likely to be provided before the Bill becomes law.

Under the proposed changes, NSW’s Industrial Relations Commission (Commission) will be able to:

• conciliate, arbitrate and issue ‘stop bullying orders’ and ‘sexual harassment orders’ to prevent and remedy bullying and sexual harassment at work;
• award compensation of up to A$100,000 per employee, provided no compensation has already been given to the employee under anti-discrimination laws; and
• order corrective actions such as public apologies and retractions, policy changes, and the implementation of programs to eliminate bullying and sexual harassment in the workplace.

By defining an ‘employee’ as a ‘worker’ under the Work Health and Safety Act 2011 (NSW), the new laws for stop bulling orders and sexual harassment orders will apply to not only direct employees of an organisation, but anyone who carries out work for the organisation. This will include, for example, contractors, subcontractors, apprentices, trainees, students gaining work experience and volunteers.

The orders will be able to be made against the individual responsible, the employee’s employer and a PCBU if the bullying or sexual harassment occurred in connection with the business or undertaking.

Unions will be able to apply for stop bullying and sexual harassment orders on behalf of employees. To make the order, the Commission must be satisfied that the employee has been bullied or sexually harassed at work and will continue to be unless the order is made.

Importantly, civil penalties for breaching a stop bullying or sexual harassment order can reach up to A$93,900 for bodies corporate and up to A$18,870 for individuals.

These explicit prohibition provisions in the Bill are in line with the prohibitions against harassment and discrimination under the Sex Discrimination Act 1984 (Cth).
Co-written by Camille Wright-Gray of Pinsent Masons.