On 1 July 2026, approved NSW Codes of Practice became legally enforceable. The main changes include establishing codes as mandatory compliance benchmarks.
Key Regulatory and Legal Shifts:
- Commencement of Section 26A: Under the Work Health and Safety Act 2011, a business must comply with an approved Code of Practice or prove an equal or higher safety standard is in place.
- No Injury Required for Enforcement: Regulators do not need to a workplace accident or injury to occur to issue a notice or penalty if a code is breached.
It’s important to note this change covers every approved code, not just psychosocial hazards.
What does this mean for NSW businesses?
Since 1 July 2026, a business must follow the approved code of practice that applies to a risk within that business. Alternatively, the business must be able to demonstrate it manages that risk equally or more safely than the code requires.
This applies to every approved code, approximately 30 in total, and not only the managing psychosocial hazards at work code of practice, which has applied in NSW since May 2021.
Effective from 1 July 2026, Section 26A of the Work Health and Safety Act 2011 (NSW) makes following an approved code a legal duty. In situations where a business already manages the risk to an equal or higher standard than the code stipulates, it can depart from that code.
Your obligated duty to comply with a Code of practice
A code of practice now becomes the default minimum performance standard a business is expected to comply with in their industry.
Codes provide information about hazards and risks. They offer practical guidance on how to achieve WHS standards in achievable ways to control those hazards and risks.
While a code of practice may not cover all risks and hazards, it deals with particular issues. As a business owner with employees, it is your responsibility to identify and apply the Codes relevant to the risks and hazards associated with your industry and business operations.
A code of practice is not law
Introducing a new code of practice or changing an existing code of practice is often confused with a law change or update.
A code of practice is not an Act or a regulation. It is guidance that has been approved by a Minister. Therefore, a business cannot be charged under a code. A breach of a legal duty can be prosecuted through an Act’s existing offence provisions, just not under the code itself.
The change makes following a code a legal duty, enforced through the offence provisions that already exist within work health and safety legislation. If you choose not to follow a relevant code, without a sound alternative, this can be considered a breach on its own, even if no one has been injured.
How will codes of practice be enforced?
SafeWork NSW Codes of Practice have served to help businesses understand what is considered reasonably practicable for specific hazards.
In addition to SafeWork NSW inspectors, including 20 dedicated to psychosocial hazard enforcement, the Industrial Relations Commission will play a role in resolving work health and safety disputes.
The relevant code of practice will form the reference point when authorities are acting on regulatory proceedings.
What are the penalties?
Workplace health and safety is serious. And so are the penalties for failing to follow an applicable code.
If a situation is deemed as gross negligence or reckless conduct the maximum fine for a company can be as high as $11.15 million, or up to 10 years imprisonment for an individual.
The middle category of fines can be up to $2.24 million for a company, and the lower category of fines up to $748,000.
The penalty handed down will depend on the seriousness of the failure.
What you need to do as an employer
As a business owner in New South Wales, you should already be complying with relevant Codes. At the very least you should be implementing measures equal to (or higher) than those set out in the relevant code.
Start by identifying which approved Codes of Practice apply to your business operation. Complete a comprehensive analysis to determine if you’re complying with the minimum standards.
This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.