Work Health and Safety Act 2011 No 10

Executive summary of update

Effective date: 1 March 2026

This update introduces significant changes to the Work Health and Safety Act 2011, primarily focusing on enhanced accountability for serious workplace incidents and new health-specific regulations. The most critical change is the introduction of an industrial manslaughter offence, carrying severe penalties and no limitation period, which fundamentally alters the risk landscape for businesses and officers in cases of workplace fatalities. Additionally, new provisions for silica worker registration and mandatory psychosocial reporting signal a targeted regulatory focus on specific health hazards. Changes to prosecution authority empower registered organisations and modify penalty allocation, while the phased application of digital work systems access introduces new compliance considerations. These amendments collectively demand a proactive and comprehensive review of existing safety management systems, legal strategies, and operational procedures.

Impacted parties

Persons conducting businesses or undertakings, officers, workers, and registered organisations are most significantly impacted by these changes, which alter their legal obligations, risks, and enforcement mechanisms.

Change Analysis

1. Introduction of Industrial Manslaughter Offence

• What changed: A new Part 2A (Sections 34B-34F) has been inserted, creating the offence of industrial manslaughter. This applies to persons conducting a business or undertaking and officers who engage in conduct with gross negligence, causing the death of a worker or other individual to whom a health and safety duty is owed.
• Impact: This introduces severe penalties, including imprisonment for 25 years for individuals and $20,000,000 for body corporates. There is no limitation period for these proceedings. An alternative verdict for a Category 1 offence is possible under Section 34F.
• Why it matters: This significantly increases the legal and financial risk for businesses and their officers in cases of workplace fatalities, demanding heightened diligence and robust safety management systems to prevent such incidents.

2. New Focus on Silica Worker Health and Psychosocial Matters

• What changed: A new Division 1A (Sections 273A-273B) has been added to Part 14, allowing SafeWork NSW to establish and maintain a silica worker register, with mandatory information provision from businesses. Additionally, a new Section 271DA requires SafeWork NSW to report every 6 months to the Minister on psychosocial matters, including complaints and notices issued.
• Impact: Businesses now have new mandatory reporting obligations regarding silica workers, with penalties for non-compliance. The psychosocial reporting, while a duty for SafeWork NSW, signals an increased regulatory focus on psychological health and safety, anticipating future guidance and enforcement in this area.
• Why it matters: These changes indicate a targeted regulatory focus on specific health risks (silica) and an evolving understanding of workplace health to include psychological well-being, necessitating proactive measures from businesses.

3. Changes to Legal Proceedings and Enforcement Powers

• What changed: Section 230 has been amended to allow a “registered organisation” (instead of “secretary of an industrial organisation of employees”) to bring proceedings, with new consultation requirements with the regulator (Section 230(3)) and notification requirements for the regulator (Sections 230(2A) and 230(2B)). Crucially, Section 230(6) now allows the court to direct a portion of a fine to be paid to the registered organisation. For WHS civil penalty provisions, Section 260 now includes registered organisations as parties who can bring proceedings, and Section 262 allows monetary penalties to be paid to them. Furthermore, Section 229B(3A) has been inserted, allowing industrial manslaughter and Category 1 offences committed by a body corporate to be dealt with summarily unless the prosecutor elects for indictment.
• Impact: These amendments broaden the scope of entities that can initiate prosecutions and civil penalty proceedings, potentially increasing the volume of legal actions. The ability for courts to direct fines to registered organisations introduces a financial incentive for them to pursue cases. The procedural change for serious corporate offences offers prosecutors flexibility in legal strategy.
• Why it matters: This could lead to an increase in enforcement actions, particularly by unions, and changes the financial and strategic implications of penalties and legal defence for businesses.

4. Phased Application of Digital Work Systems Access

• What changed: A new Schedule 4, Part 11, Clause 1 has been added, stipulating that the power of WHS entry permit holders under Section 118(1)(a1) (to require reasonable assistance to access and inspect digital work systems) may only be exercised if relevant guidelines under Section 118A have been published.
• Impact: This introduces a condition precedent for the exercise of a specific WHS entry permit holder power, meaning the power is not immediately and universally applicable upon the Act’s commencement.
• Why it matters: Businesses need to monitor the publication of guidelines under Section 118A to understand when and how they may be required to provide access to digital work systems during inspections, ensuring readiness for compliance.

Corrective and preventive actions

• Legal
  • Part 2A: Review existing liability frameworks and internal policies for alignment with new industrial manslaughter provisions. Advise on implications for officer duties and potential personal liability.
  • Section 271DA: Monitor SafeWork NSW reports on psychosocial matters to anticipate future regulatory changes and compliance obligations.
  • Section 230, 260, 262: Review internal incident response and legal defence strategies, considering the increased likelihood of prosecutions and civil penalty actions by registered organisations.
  • Section 229B(3A): Update legal defence strategies for Category 1 and industrial manslaughter offences to account for the prosecutor’s election between summary and indictment proceedings for body corporates.
  • Schedule 4, Part 11, Clause 1: Monitor the publication of guidelines under Section 118A to prepare for potential requirements to provide access to digital work systems.
• Commercial and Procurement
  • Part 2A: Review contractor agreements to ensure clear allocation of WHS responsibilities and indemnities in light of industrial manslaughter provisions.
• Government & Regulatory Affairs
  • Section 230, 260, 262: Monitor engagement with registered organisations and their role in WHS enforcement.
  • Section 271DA: Engage with SafeWork NSW on psychosocial reporting to understand emerging regulatory expectations.
• Human Resources
  • Division 1A of Part 14: Update worker records to include relevant silica exposure information and ensure privacy protocols are in place for register data.
  • Section 271DA: Review and enhance existing policies and procedures for managing workplace stress, harassment, and other psychosocial risks. Implement training for managers on identifying and addressing psychosocial hazards.
• Operations
  • Part 2A: Ensure all operational procedures are reviewed for potential fatal risks and updated to reflect the highest level of safety control.
  • Division 1A of Part 14: Implement strict controls for silica-generating activities and ensure all workers involved are identified and monitored.
• Health Safety and Environment
  • Part 2A: Conduct a comprehensive review of critical risk controls and safety management systems to identify and mitigate risks that could lead to fatalities. Implement enhanced incident investigation protocols for serious incidents.
  • Division 1A of Part 14: Establish a system for identifying and tracking workers exposed to respirable crystalline silica. Develop a process for collecting and providing required information to SafeWork NSW for the silica worker register.
  • Section 271DA: Begin assessing psychosocial hazards and risks in the workplace. Develop strategies for managing and reporting on psychosocial matters, anticipating future regulatory requirements.
• Project Management
  • Part 2A: Integrate industrial manslaughter risk assessment into project planning and execution, especially for high-risk activities.
• Finance
  • Section 230, 260, 262: Assess potential financial impacts of increased prosecution risk and changes to penalty distribution, including the possibility of fines being directed to registered organisations.
• Engineering
  • Part 2A: Review design and operational safety of plant and structures to prevent fatal incidents.

Risks & opportunities assessment

The update introduces significant risks, including increased legal exposure and potential for severe penalties (including imprisonment for officers) due to the new industrial manslaughter offence. There is a higher likelihood of prosecutions and civil penalty actions from registered organisations, potentially leading to increased legal costs and reputational damage. Businesses face increased regulatory scrutiny and compliance burdens related to specific hazards like silica and emerging areas such as psychosocial risks. Financially, there is an impact from higher penalties and the potential redirection of fines. However, these changes also present opportunities: proactive implementation of enhanced WHS measures can improve worker safety, reduce incidents, and enhance the organisation’s reputation as a responsible employer. Early adoption of best practices in psychosocial risk management can create a healthier work environment, improving employee well-being and productivity. Strengthening relationships with workers and their representatives through effective consultation can lead to better safety outcomes and reduced disputes.