A new health & safety duty is on its way – be prepared!
Important: In law, not yet in force
On 3 July 2025, changes affecting NSW’s WHS laws became law, although they are not in force yet.
The most significant change for SMEs is that there is a new health & safety duty for PCBUs (which stands for Persons Conducting a Business or Undertaking).
That new duty concerns the role of a Code of Practice (as opposed to the Act and regulations).
As a quick refresher, under WHS laws:
The WHS Act 2011 – contains the legal duties and obligations that everyone in the workplace must comply with.
The WHS Regulation 2016 – identify the steps and processes that everyone must follow in order to comply with those duties and obligations.
A Code of Practice – provides more detailed information on how everyone can comply with their legal duties and obligations under WHS laws.
For now
For now, the relevance of a Code of Practice is that, if a PCBU be prosecuted for breach of its health & safety duty, the Court may use it as evidence when deciding whether, in the circumstances, the PCBU has breached its duty.
It will do this by referring to the Code to determine:
what is known, in relation to topic explained in the Code, about a:
hazard or risk
risk assessment, or
risk control, and
what is ‘reasonably practicable’ in the circumstances.
Of course, there is nothing to stop a PCBU from adopting control measures that, although different from those described in the Code of Practice, provides a higher standard of work health & safety.
Once the law comes into effect
A PCBU will be subject to a new health & safety duty – to comply with the contents of all approved Codes of Practice.
(Again, there is nothing wrong with adopting measures that provide a higher standard of work health and safety than is being provided by the Code of Practice).
In other words, a failure to follow the requirements of an approved Code of Practice will, of itself, be a breach of a health & safety duty.
Our recommendation: Be prepared – get to know your code!!!
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