From 1 March 2026, unions and other registered organisations in New South Wales can prosecute employers for work health and safety breaches — including psychological harm — when the regulator declines to act, and courts can direct part of the fine to the organisation that ran the case. Paired with enforceable psychosocial codes from 1 July 2026, it is the biggest shift in WHS enforcement in years.
Key facts at a glance
- The law: Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW), passed 27 June 2025; the enforcement changes commenced 1 March 2026.
- Unions and registered organisations can now start proceedings for any offence under the WHS Act after consulting the regulator and the regulator declining — the old requirement for a Director of Public Prosecutions referral is gone.
- Courts can now direct part of any penalty to the prosecuting organisation (previously prohibited) — a direct financial incentive to enforce.
- Union WHS entry-permit holders can take photos, videos, measurements and tests, and act on any new suspected breach they notice on site.
- The regulator must now publish a report every six months on complaints and notices about “psychosocial matters”.
- Psychosocial hazards are the stated priority: SafeWork NSW added 51 inspectors in March 2026, 20 dedicated to psychosocial safety.
What exactly changed on 1 March 2026?
For years, only a WHS regulator could realistically prosecute a breach. A union could bring proceedings only in narrow cases — Category 1 and 2 offences, and only after the regulator declined, referred the matter to the Director of Public Prosecutions, and the DPP advised it should proceed. In practice, that multi-step gate almost never opened.
The Workplace Protections Act 2025 removes that barrier. A registered organisation can now commence proceedings for any offence under the WHS Act once it has consulted the regulator and the regulator has declined to act. Just as significantly, the rule that a court could not pay any part of a penalty to a registered organisation has been repealed — so a prosecuting union can now be awarded a share of the fine.
Why does this matter for psychosocial hazards specifically?
Because psychosocial risk is exactly where this new pathway is most likely to be used. Complaints about bullying, excessive workloads, poor support, toxic culture and unmanaged trauma are the fastest-growing category of workplace harm — precisely the issues unions raise on members’ behalf. The same Act requires the regulator to publish a report every six months on psychosocial complaints and notices, keeping psychological safety at the top of the enforcement agenda.
This sits on top of a companion change: from 1 July 2026, approved codes of practice — starting with Managing Psychosocial Hazards at Work — became enforceable benchmarks under section 26A of the WHS Act, so employers must follow the code or demonstrate an equal-or-better standard. Together, the two reforms mean a psychosocial failure can be measured against a mandatory benchmark and pursued by more than one party.
Union prosecution power: before vs after the 2026 reform
| Feature | Before | From 1 March 2026 |
|---|---|---|
| Who can prosecute a WHS breach | Effectively the regulator only | Regulator or a registered organisation (e.g. a union) with an affected member |
| Which offences a union could pursue | Category 1 and 2 only | Any offence under the WHS Act |
| Pre-conditions | Regulator declines + DPP referral + DPP advice to prosecute | Union consults the regulator; regulator declines to act |
| Share of the penalty | Court could not pay any part to the organisation | Court can direct part of the penalty to the prosecuting organisation |
| Right of entry powers | Enter and inquire | Also take photos, videos, measurements, tests; act on newly suspected breaches |
| Psychosocial transparency | No specific reporting duty | Regulator reports on psychosocial complaints/notices every six months |
Does this apply outside New South Wales?
The prosecution and right-of-entry changes are NSW-specific, but the underlying psychosocial duty is national. Queensland, the ACT, the Northern Territory, South Australia, Tasmania, Western Australia and the Commonwealth all operate under the model WHS laws, and Queensland has had an enforceable psychosocial hazards Code of Practice since 1 April 2023. NSW is the most-watched WHS jurisdiction in the country, and reforms that widen who can enforce — and give them a financial reason to do so — tend to shape expectations everywhere.
What are regulators and unions now looking for?
The common thread is documented, active management of psychosocial risk — not policies that sit in a drawer. Regulators and, increasingly, unions want to see that an employer has identified its psychosocial hazards, put real controls in place, consulted workers, trained the managers who apply the system, and kept records. It mirrors the enforcement build-up we tracked in psychosocial enforcement in 2026: more inspectors, more notices, and now more parties able to go to court.
What does this mean for employers?
The practical exposure is straightforward: a poorly handled psychosocial complaint can now attract a regulator’s notice, a union-led prosecution if the regulator declines, and a surprise site visit by a permit holder gathering evidence — all measured against an enforceable code. Managing psychosocial risk under the primary duty of care is no longer optional, and “we had a policy” is not a defence if it was not followed in practice. Capability is the gap most organisations still need to close — the people who lead teams and respond to incidents need to be trained to recognise psychological distress and act on it.
Where does accredited psychological first aid fit in?
Training managers and supervisors to understand psychosocial hazards and respond to workers in distress is one of the clearest, most defensible controls an employer can point to — it turns a written commitment into a demonstrable one.
FMS Training delivers PUARCV001 Provide Psychological First Aid, a nationally recognised unit of competency, fully online and available Australia-wide. As a registered training organisation (RTO 45189) with over 1,300 five-star reviews, we equip managers, HR teams and support officers to become accredited Psychological First Aiders — a practical measure that strengthens your psychosocial risk-management system. Explore the accredited Psychological First Aid course.
Frequently asked questions
Can unions prosecute employers for work health and safety breaches?
In New South Wales, yes. From 1 March 2026, a registered organisation such as a union can commence proceedings for any offence under the Work Health and Safety Act after it has consulted the regulator and the regulator has declined to act.
What law gave unions the power to prosecute WHS breaches?
The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW), which passed parliament on 27 June 2025, with the enforcement changes commencing on 1 March 2026.
Can a union be paid part of a WHS fine?
Yes. The reform removed the rule that prevented a court from paying any part of a penalty to a registered organisation, so a court can now direct a share of the penalty to the organisation that brought the proceedings.
How does this change affect psychosocial hazards?
Psychosocial complaints — bullying, excessive workload, poor support, toxic culture — are the most likely to be pursued under the new pathway, and the regulator must now report on psychosocial complaints and notices every six months.
Do these changes apply outside New South Wales?
The prosecution and right-of-entry powers are NSW-specific, but the psychosocial duty exists nationally under the model WHS laws, and other states closely watch NSW enforcement reforms.
What new powers do union WHS entry-permit holders have?
Permit holders exercising right of entry can now take photos, videos, measurements and tests relevant to a suspected breach, and can act on any further contravention they come to suspect during the visit.
What should employers do to reduce the risk?
Identify and assess psychosocial hazards, put real control measures in place, consult workers, train managers and supervisors on psychosocial duties, and document everything — following the enforceable Managing Psychosocial Hazards at Work code or an equivalent standard.
Is psychological first aid training nationally recognised?
Yes. PUARCV001 Provide Psychological First Aid is a nationally recognised unit of competency delivered by registered training organisations such as FMS Training (RTO 45189), online and Australia-wide.
Sources: Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW), NSW Legislation; SafeWork NSW — Legislation; Kingston Reid — Workplace Protections Bill (Part 2): how NSW’s WHS laws are changing; WorkSafe Queensland — Psychosocial hazards.