Union Powers in WHS - What NSW Employers Need to Know
Union Powers in WHS - What NSW Employers Need to Know
Two major legal reforms commenced in NSW in early 2026, and if you're an employer, you need to understand what they mean for your organisation.
In this Psychosocial Safety Briefing, Institute Co-Director Nicole Turnbull sits down with David Newey, Partner at Gillis Delaney Lawyers, to break down the new powers allowing unions to prosecute work health and safety breaches - including psychosocial hazards - and what employers should be doing about it.
What's actually changed
From 1 March 2026, unions can now bring criminal prosecutions against employers for WHS breaches. It's not unlimited - Unions must first consult with SafeWork NSW, and can only prosecute if the Regulator declines to act. But as David explains, the real impact may be less about unions prosecuting directly and more about unions pressuring the regulator to act.
"Do I think there will be lots of prosecutions by Unions? Probably not. Do I think that the activity of Unions will promote prosecution by the Regulator? Absolutely."
And there's a financial incentive built in. Courts can order that fines are paid in whole or in part to the prosecuting Union.
The Code of Practice is now enforceable
From 1 July 2026, Section 26A of the Work Health and Safety Act 2011 gives legal force to the Managing Psychosocial Hazards at Work Code of Practice. Compliance is mandatory unless an employer can demonstrate a superior system.
That means psychosocial risks - excessive work demands, performance management processes, workplace culture, leadership behaviour - now carry the same legal weight as physical safety hazards. As David points out, excessive work demands are likely to be one of the first areas of focus, particularly in industries like financial services and health.
"If there's a risk to health and there's a hazard, and it can be eliminated or controlled, you've got to implement the control measures."
Digital work systems: new duties incoming
The Work Health and Safety Amendment (Digital Work Systems) Bill 2025 passed Parliament just days before this briefing was recorded. Once commenced - likely 1 July 2026 pending SafeWork guidelines - employers will have a duty to ensure digital platforms, algorithms, AI tools and automated rostering systems don't expose workers to excessive work demands. Unions will have the right to access those systems where a contravention is suspected.
What employers should do now
David's advice is clear - don't panic about Unions, focus on your obligations.
"The issue is the extension of duties under the Work Health Safety Act. The new duty to comply with codes of practice. The new regulations that require us to deal with the psychosocial safety code, and in particular, introduce and eliminate hazards and introduce control measures."
That means identifying psychosocial hazards, assessing risk, implementing documented controls and reviewing them regularly. It doesn't require a room full of procedures - it requires genuine assessment, communication, consultation and documented decisions.
"Safety systems and complying with codes is all about running a business properly and protecting your asset, which are your staff."
David has written a comprehensive overview of all the NSW reforms covered in this briefing. Read more on the Gillis Delaney website here.
For legal advice specific to your situation, contact David Newey at Gillis Delaney Lawyers.
02 9394 1111
