On 1 July 2026, the New South Wales Parliament introduced one of the most significant changes to workplace health and safety (WHS) compliance in recent years. Section 26A of the Work Health and Safety Act 2011 (NSW) now requires Persons Conducting a Business or Undertaking (PCBUs) to either comply with an approved WHS Code of Practice or demonstrate that an alternative approach provides an equivalent or higher standard of health and safety.
Historically, Codes of Practice provided practical guidance on how to meet WHS obligations. While they were admissible as evidence in legal proceedings and often used by regulators to determine what was reasonably practicable, they were generally not mandatory. The new legislation elevates approved Codes of Practice from guidance documents to enforceable minimum performance standards. This new legislative change in NSW mirrors the approach taken in Queensland in relation to their CoPs.
Importantly, the legislation does not prevent organisations from adopting innovative or alternative safety measures. However, if a PCBU chooses not to follow a Code of Practice, it must be able to demonstrate that its alternative controls achieve an equivalent or higher level of protection. This places a greater emphasis on documented evidence, risk assessments, consultation, and ongoing monitoring to justify any departure from an approved Code.
For many organisations, the practical implications are significant. PCBUs should identify which Codes of Practice apply to their operations and how they apply (that is, is the Code of an ‘advisory’ or ‘mandatory’ nature), then review existing policies and procedures against the relevant Code requirements and address any compliance gaps. Worker consultation, training, and clear documentation will become increasingly important in demonstrating compliance during inspections, investigations, or legal proceedings.
The bottom line is that NSW businesses, like those in Queensland, will need to ensure their management systems align with the relevant Code or can clearly demonstrate an equivalent or better approach.
Ultimately, these reforms are designed to improve workplace safety by providing greater certainty about regulator expectations and encouraging consistent safety standards across industries. Organisations that proactively review their WHS management systems and align them with applicable Codes of Practice will be better positioned to demonstrate compliance and, most importantly, protect the health and safety of their workers.
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