NSW Codes of Practice are now Mandatory: What Businesses Need to Know

From 1 July 2026, NSW businesses must comply with each approved Work Health and Safety Codes of Practice (Code) that applies to their operations or demonstrate that an alternative approach provides an equivalent or higher standard of health and safety.

The change strengthens the legal status of approved Codes and introduces a practical “comply or justify” standard. It affects Persons Conducting a Business or Undertaking (PCBUs) across all industries, as well as Officers responsible for ensuring that appropriate Work Health and Safety (WHS) systems are in place.

What has changed?

Section 26A of the Work Health and Safety Act 2011 (NSW) (the Act) commenced on 1 July 2026. Where an approved Code applies to a hazard or risk, a PCBU must either comply with the Code or manage the hazard or risk in another way that provides a standard of health and safety that is equivalent to or higher than the standard required by the Code.

Previously, Codes were influential guidance, meaning that they were admissible in court and could be relied on as evidence of what was known about a risk and what was reasonably practicable. The new duty makes the applicable Code, or a demonstrably equal or better alternative, the minimum performance benchmark.

Are Codes of Practice now Legislation?

Not exactly. Approved Codes of Practice do not replace the Act or the Work Health and Safety Regulation 2025 (NSW) (the Regulation), and businesses are not prosecuted under a Code. However, complying with an applicable Code, or proving an equivalent or higher standard, is now itself a statutory duty under the Act. A failure to meet that duty may engage the Act’s existing enforcement and offence provisions.

Which Codes are affected?

The duty applies to all approved NSW Codes of Practice, not only the Code dealing with psychosocial hazards. The current suite covers a wide range of matters, including construction work, hazardous manual tasks, confined spaces, workplace consultation, asbestos, plant, falls, electrical risks, fatigue, psychosocial hazards, healthcare and social assistance, and hazardous chemicals.

A Code will be relevant according to the work performed and the hazards and risks present. PCBUs must still identify and manage all WHS risks, including risks not addressed comprehensively, or at all, by a Code.

What does “comply or justify” mean in practice?

Following an applicable Code will generally be the most direct way to meet the new duty. A PCBU may adopt a different control, but it should be able to demonstrate through risk assessments, technical evidence, consultation records, procedures, training and monitoring that the alternative achieves an equivalent or higher safety outcome.

In the Codes, “must” will generally reflect an existing legal requirement, while “should” identifies the standard required by the Code. A different approach to a “should” provision is permissible only if it provides an equivalent or higher standard. The word “may” however, will generally indicate an optional course of action.

Why the change matters

The change was necessary since it allows compliance gaps to be now easily identified, as inspectors can compare workplace controls directly with the Code. Since an incident is not required before action may be taken, a deficiency may be enforceable before an injury or illness occurs.

To implement alternative controls, the organisation will need supporting evidence, as undocumented custom practices may be difficult to defend as equivalent or better and detailed record keeping is required. Governance oversight is therefore critical, and Officers should ensure the organisation has a systematic process for identifying applicable Codes and testing compliance. Organisations must also monitor new and revised Codes and update their systems promptly.

Five steps for NSW businesses

There are five important steps that organisations should take to ensure ongoing compliance with these changes.

1. Map the applicable Codes. Identify the activities, hazards and risks across each workplace and determine which approved Codes apply.
2. Complete a gap analysis. Compare current controls, policies, procedures, risk assessments and safe work method statements against each relevant Code.
3. Address deficiencies. Update controls and documents, assign accountable owners and set realistic completion dates based on risk.
4. Evidence any alternative approach. Record why the alternative is used, the evidence supporting it and how the organisation has determined that it provides an equivalent or higher standard.
5. Consult, train and monitor. Consult workers and other duty holders, provide role-appropriate training, and schedule periodic reviews and assurance reporting.

Key takeaway

The amendments do not eliminate flexibility, but they raise the evidentiary bar. NSW organisations should treat the relevant Codes as the baseline for their WHS systems. If a business departs from that baseline, it should make the decision deliberately, consult appropriately and retain clear evidence that its alternative delivers an equal or better safety outcome.

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