The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW), assented on 3 July 2025, introduces a new section 26A to the Work Health and Safety Act 2011 (NSW). This section commences on 1 July 2026 and transforms approved Codes of Practice from advisory guidance into legally enforceable compliance benchmarks.

Under section 26A, a PCBU must either comply with an approved Code of Practice or demonstrate that it manages hazards and risks to a standard that is equivalent to, or higher than, the standard required under the Code. This applies to all 30 approved Codes of Practice currently in force in NSW, including the Managing Psychosocial Hazards at Work Code of Practice.

What changes on 1 July 2026

Until now, Codes of Practice in NSW have been admissible in court proceedings as evidence of what is known about a hazard and how to manage it, but they have not been legally binding in themselves. A PCBU could choose not to follow a Code and defend that choice by demonstrating an alternative approach that achieved an equivalent standard.

Section 26A changes the legal status of Codes. As the NSW Industrial Relations Commission explains, PCBUs must comply with Codes of Practice approved by the Minister unless they can demonstrate that they manage hazards and risks to a standard that is equivalent to or higher than the standard required under the Code. Non-compliance with this duty can give rise to an offence under sections 32 and 33 of the WHS Act.

This is a significant shift. A regulator no longer needs to prove that harm occurred. Falling short of the standard set by a Code may itself constitute a breach of the WHS Act. The Code becomes the default legal reference point for what acceptable risk management looks like.

This approach mirrors the position already adopted in Queensland on 1 July 2018, where section 26A of the Work Health and Safety Act 2011 (Qld) requires equivalent compliance with approved Codes of Practice.

Implications for psychosocial compliance

For psychosocial compliance, the practical effect is that the Managing Psychosocial Hazards at Work Code of Practice becomes a legally enforceable minimum standard from 1 July 2026. Organisations in NSW must either follow the Code or prove they meet or exceed it.

This operates alongside the WHS Regulation 2025, which commenced on 22 August 2025 and introduced the mandatory application of the hierarchy of controls to psychosocial risks through sections 55C and 55D. The Regulation defines how psychosocial risks must be controlled. Section 26A defines the minimum benchmark for doing so.

Together, these two instruments create a clear compliance framework. The Code sets out the practical steps for identifying, assessing and controlling psychosocial hazards. The Regulation requires those controls to follow the hierarchy, starting with higher-order measures such as work redesign before relying on lower-order measures such as training. And section 26A makes compliance with the Code a legal duty that can be enforced through prosecution.

What "equivalent or higher standard" means in practice

A PCBU that chooses not to follow the Code must demonstrate that its alternative approach provides an equivalent or higher standard of health and safety. In practice, this requires the organisation to show that it has considered the same risks the Code addresses, implemented controls that are at least as effective as those the Code recommends, and can produce evidence of this.

The NSW Industrial Relations Commission has confirmed that in determining whether a charge under section 26A is made out, a court will ask whether the PCBU complied with the relevant Code. If not, the court will ask how the PCBU manages the relevant hazards and risks, and whether that approach provides a standard of health and safety that is equivalent to or higher than the standard required under the Code.

This places the burden on the organisation to substantiate its claim of equivalence. An organisation that asserts it has an equivalent system must be able to point to documented hazard identification, structured risk assessments, implemented control measures that follow the hierarchy of controls, evidence of worker consultation, and regular review of control effectiveness. A general statement that "we have our own approach" will not satisfy the test.

The gap between the Code and the Regulation

The Managing Psychosocial Hazards at Work Code of Practice was issued in May 2021. It provides a sound foundation for hazard identification, risk assessment, worker consultation and early intervention. However, the Code predates the WHS Regulation 2025 and does not explicitly reference the mandatory hierarchy of controls now required under sections 55C and 55D, or the specific matters PCBUs must consider under section 55D when determining control measures.

This creates a gap. Organisations that comply with the Code as written, without integrating the updated regulatory expectations from the 2025 Regulation, may not meet the "equivalent or higher standard" test under section 26A. The Code remains the benchmark for what to do. The Regulation adds how it must be done, specifically by applying the hierarchy of controls and considering the matters set out in section 55D.

Organisations should map their existing psychosocial risk management systems against both instruments. Where the current approach relies predominantly on policies, procedures, training or employee assistance programmes without demonstrating that higher-order controls have been considered and applied, there is a gap that needs to be addressed before 1 July 2026.

For the full context on the model WHS Regulations that introduced psychosocial hazard provisions, and the NSW WHS Regulation 2025 that strengthened them, see the linked articles. For the state-by-state breakdown, see the compliance-by-state collection.

Disclaimer: This article provides general information on psychosocial compliance in Australian workplaces. It does not constitute legal advice. Organisations should consult qualified professionals for advice specific to their circumstances. Regulatory references are sourced from the NSW Industrial Relations Commission, SafeWork NSW, Bird and Bird, and Hamilton Locke and are current as of the date of publication.