
On 25 June 2025, the Minns Government passed the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (Bill), resulting in significant changes to the Industrial Relations Act 1996 (NSW) (IR Act), Industrial Relations (General) Regulation 2020 (IR Regulation), and the Work Health and Safety Act 2011 (WHS Act).
The Bill significantly changes the legislation relating to bullying, sexual harassment, and gender equality for NSW public sector and local government workers.
It introduces an anti-bullying and sexual harassment jurisdiction in the Industrial Relations Commission (IRC), with greater powers than its national system counterpart, the Fair Work Commission (FWC), and expands the mutual gains bargaining in good faith rights for gender equality in NSW public sector and local government industrial disputes.
Changes to the WHS Act affect all NSW employers and duty holders.
An Overview of the IR Act and IR Regulation Key Amendments
The key amendments to the IR Act and IR Regulation impacting NSW public sector and local government employers and workers include:
- Adding a statutory definition of the following terms:
- ‘bullying at work’;
- ‘stop bullying order’; and
- ‘sexual harassment’ (as defined in section 22A of the Anti-discrimination Act 1977 (NSW));
- Extend the definition of:
- ‘employee’ to include a ‘worker’ as defined under the WHS Act, so that ‘workers’ may apply for a stop bullying order in the IRC; and
- ‘industrial matters’ to include return to work for employees who have received a workplace injury.
- Enabling public sector and local government workers who are bullied or sexually harassed at work, or an industrial organisation (such as unions) on their behalf, to make applications and seek preventative orders or remedies from the IRC;
- Authorising the IRC to conciliate, arbitrate and make orders concerning:
- the bullying of workers at work; and
- persons sexually harassing employees, prospective employees and persons conducting a business or undertaking (PCBU);
NB: Excludes ‘PCBUs’, ‘persons’ and ‘workers’ considered national system employees or employers under the Fair Work Act 2009 (Cth) (FW Act).
- Prohibiting workers from:
- making an application or commencing proceedings for a matter under the WHS Act or Anti-discrimination laws relating to the same conduct outlined in their applications to, or orders made by, the IRC; or
- using civil penalty proceeding evidence in criminal proceedings (with a limited exemption).
- Increase the IRC’s small claims division monetary cap from $10,000 to $100,000;
- Allowing the IRC to make broad findings, orders and remedies, including:
- dismissing a stop bullying order application where findings of reasonable management actions are established;
- findings of bullying and sexual harassment;
- finding an employer vicariously liable for sexual harassment by an employee in connection with the employment or an agent performing agent duties and categorising the vicariously liable person as if they had also done the act alleged to the aggrieved person;
- orders related to the prevention of any further risk of continuous bullying, harassment or sexual harassment, such as injunctions to restrain further contraventions, the development and implementation of a program or policy aimed at eliminating bullying, harassment or sexual harassment;
- the publication of an apology or retraction for bullying, harassment or sexual harassment matters;
- award compensation for loss or damages suffered from sexual harassment or bullying and prohibited instances of continuing or repeated bullying of up to $100,000 for each employee bullied;
- apply civil penalties for contravening:
- an industrial instrument with a maximum penalty of $10,000;
- a stop bullying order or sexual harassment in connection with work, with a maximum penalty of $18,870 for an individual or $93,900 otherwise; and
- an IRC final order or determination with a maximum penalty of $25,000.
- award cost orders for civil penalty proceedings,
- Expanding on the freedom of association and victimisation principles by:
- implementing a rebuttable presumption. This presumes that an employee experienced detriment because of a protected right under the IR Act, unless the employer satisfies the IRC that the alleged right was not a substantial and operative cause of the detriment;
- the IRC applying substantive and objective tests when determining the cause of the detrimental action. This may include conscious and unconscious factors;
- allowing employees to commence a victimisation application if they suffered a detriment because they:
- are entitled to a benefit or a claim under workers compensation;
- have a role or responsibility under an industrial legislation or instrument;
- participate or engage in, or propose to participate or engage in, or refuse to participate or engage in industrial organisation activities;
- have a ‘characteristic’ (not just an attribute) protected from discrimination under the Anti-Discrimination Act 1977 (NSW);
- made a “complaint” or “inquiry” about their employment. A concept broadly interpreted in the national system under the FW Act; or
- made a “complaint” or “inquiry” to a public authority about their employer (including matters other than their employment),
- Gender equality during good faith mutual gains bargaining and industrial disputes;
- Time limit to make an application:
- in response to alleged sexual harassment must be made no later than 24 months after the alleged conduct occurred; and
- for a civil penalty order must be made within 6 years of the alleged contravention.
An Overview of the WHS Act Key Amendments
The WHS Act changes influenced by the proposed reforms separately introduced for the state’s workers compensation system under the Workers Compensation Legislation Amendment Bill 2025 (NSW) apply to all employers and employees in NSW, irrespective of whether they are public sector, local government or private sector workers.
The key amendments to the WHS Act include:
- Expanding the definition of WHS Matters. ‘WHS matters’ includes disputes regarding work group determinations and variations, access to information by a health and safety representative (HSR), and requests by HSRs for a person to assist them in accessing a workplace.
- Codes of practice approved by the Minister are now legally binding for NSW PCBUs unless the PCBU can demonstrate it manages hazards and risks differently and provides an equivalent or higher health and safety standard than the code requires.
- PCBUs must notify SafeWork NSW as soon as practicable when HSRs issue provisional improvement notices (PINs). Failure to do so can result in a maximum penalty of 50 penalty units.
- Any party, such as a PCBU, worker, HSR, or registered organisation, such as a union, can bypass SafeWork NSW and apply directly to the IRC to use its dispute resolution procedures for any WHS matters. The IRC can conciliate, arbitrate, and make orders concerning WHS matters. Parties will bear their own costs unless an exception applies.
- Provide greater powers to registered organisations, such as unions, to:
- seek a right of entry permit and expand their rights to make measurements, conduct tests, and take photos and videos directly relevant to a suspected WHS contravention. It does not extend to the taking of statements;
- enter a multi-party information sharing arrangement with SafeWork NSW to share and exchange information and records held and obtained by SafeWork NSW in their workplace investigations;
- the power to prosecute if the registered organisation has consulted with SafeWork NSW about an intention to commence proceedings and SafeWork NSW has declined to commence proceedings;
- commence prosecution proceedings for any WHS Act offence;
- commence proceedings for contravention of a civil penalty under the WHS Act and seek payment of any portion of a fine or other penalty to the registered organisation;
- apply on behalf of a worker whose interest has been affected by a reviewable decision.
- With leave of the court in the interest of justice, extending the 2-year limitation period to commence WHS prosecution proceedings.
- SafeWork NSW providing 6-month reports to the Minister about:
- the number and types of complaints received by SafeWork about psychosocial matters;
- the number and types of notices issued by SafeWork about psychosocial risks
- insights gained through notices, and
- recommendations for improving psychosocial health and safety and reducing psychological injuries.
Key takeaways for Public Sector and Local Government Employers and Workers
Public sector and local government employers and workers must be aware of the above IR Act and IR Regulation changes and how they impact their employment and personal liability.
These changes create a positive duty and accountability for employers and workers regarding appropriate workplace behaviour and WHS practices. They require employers to ensure preventative measures are implemented and comprehensive records are maintained to avoid, where possible, an application to the IRC and an inability to defend themselves.
All NSW employers need to:
- Create or review and update any policy or procedures relating to:
- appropriate workplace behaviour policies covering topics such as bullying, harassment, sexual harassment, discrimination and victimisation;
- grievance, complaints and internal dispute resolution policy and procedures;
- WHS policy and procedures, especially around alignment with any Minister-approved codes of practice and notifying SafeWork NSW of HSR PINs;
- Injury management and return to work policy and procedures.
- Provide comprehensive training to workers to ensure they understand the relevant policies and procedures around WHS and appropriate workplace behaviour, such as mandatory induction and periodic refresher training;
- Provide additional training to managers about how to manage grievances, complaints and disputes regarding appropriate workplace behaviour, and WHS matters, and instil meticulous record-keeping practices and procedures;
- Consult with your workers and relevant parties about WHS risks and maintain clear WHS records such as risk assessments, safe work method statements, incident or near miss records, corrective action and training records.
- Consult with your workers compensation insurer to implement best practice procedures for any workplace injuries; and
- Maintain clear records and ensure your records are secure from any risk of loss or sabotage.
If you need help understanding the changes to the IR Act, IR Regulation or WHS Act, or require assistance in creating or updating any relevant policy and procedures to ensure compliance with the updated legislation, please give us a call.
We are here to help.