After October 2025: The Consultation Evidence Problem at the Heart of NSW's Psychosocial Reforms

The October 2025 reforms to NSW's Work Health and Safety Act 2011 have been widely framed as more obligations for businesses and more power for unions. That framing misses the structural shift.

The reforms create few genuinely new duties. What they create - across six distinct legislative levers - is new audiences for the same body of evidence that PCBUs have always been expected to maintain. And the enforcement record from the second half of 2025 makes clear what those audiences are looking for: not policies, not training records, not Employee Assistance Program statistics, but evidence that consultation actually happened at each decision point where psychosocial risk was foreseeable.

This is the consultation evidence problem. The 2025 reforms make it sharper, faster, and harder to avoid.

What actually changed on 13 October 2025

The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW) was assented on 3 July 2025, with most provisions commencing on 13 October 2025. The remaining provisions phase in across 2026.

Six structural changes matter for psychosocial risk management.

Codes of Practice become compliance benchmarks. New section 26A creates a statutory duty on every PCBU to comply with an applicable approved Code of Practice - or demonstrate that their hazard management provides an equivalent or higher standard of health and safety. The Managing Psychosocial Hazards at Work Code (2021) becomes the default benchmark for psychosocial risk in NSW. This brings NSW into alignment with Queensland, which has had the same provision since 2018. The legal status of the Code shifts from "evidence of what is known about a hazard" (admissible at trial) to a directly enforceable standard.

Union prosecution rights extended to all WHS offences. Registered organisations can now bring proceedings for any offence under the WHS Act, subject to giving SafeWork NSW first opportunity. Previously this right did not extend to Category 3 - the broad "failure to comply with a duty" category that captures consultation breaches under sections 47-49. A court may direct part of any fine or penalty to the union.

Limitation periods can be extended. Section 232(1)(a)'s two-year limit can now be extended with leave of the court if doing so is in the "interests of justice." This responds directly to the NSW Court of Criminal Appeal's decision in Prime Marble & Granite Pty Ltd v SafeWork NSW [2024], where a prosecution following the 2020 deaths of two former workers from silicosis was dismissed as statute-barred because SafeWork had sufficient information in 2017-2018 to form a reasonable belief that an offence had been committed.

The Industrial Relations Commission has WHS jurisdiction. The IRC can now mediate, conciliate, or arbitrate WHS disputes about work group determinations, HSR access to information, HSR training, health and safety committees, and cessation of work. PCBUs, workers, HSRs, and unions can bypass the inspector-led process and go directly to the Commission. Civil penalties of up to $25,000 are available for non-compliance with arbitrated outcomes.

PIN copy obligation. New section 97A requires a PCBU to provide SafeWork NSW with a copy of any Provisional Improvement Notice issued by an HSR, as soon as practicable. Non-compliance attracts up to 50 penalty units.

Six-monthly psychosocial transparency reporting. SafeWork NSW must now report to the Minister every six months on the number and types of psychosocial complaints received, the number and types of psychosocial notices issued, and recommendations for improving psychological health and safety. The data is published.

The first such report, published in March 2026, covered the six months to 31 December 2025. Of 7,570 requests for service relating to WHS concerns, 1,476 - almost one in five - related to psychosocial harm. Construction was the leading industry by total volume, at 41 per cent of all requests.

This is now a measured, published activity of government. The volume cannot be allowed to drop.

The pattern in late-2025 enforcement

Four enforcement events between September and December 2025 illustrate what regulators, HSRs, and courts are now testing. None turned on a hazard identification failure. All four turned on the absence of demonstrated consultation, demonstrated risk assessment, or demonstrated decision-making at moments of foreseeable psychosocial harm.

University of Technology Sydney (2 September 2025). SafeWork NSW issued a prohibition notice halting a planned restructure affecting approximately 800 staff and around 400 proposed redundancies. The inspector reasonably believed workers "are and will be" exposed to a serious and imminent risk of psychological harm. The reported concerns: short-notice meeting invitations, "finalistic" language suggesting outcomes were predetermined, and inadequate consultation under applicable laws and instruments. The notice was lifted on 5 September after UTS extended consultation timelines and changed the way information was distributed to affected staff. It was the first reported instance in NSW of a prohibition notice being used to halt a corporate restructure on psychosocial grounds.

Australian National University (17 September 2025). HSRs issued a cease work order under the Commonwealth WHS framework after compiling a report alleging aggression, bullying, harassment, and self-harm disclosures linked to ANU's "RenewANU" restructuring program, which had already resulted in nearly 400 redundancies. Roughly 30 employees in the College of Arts and Social Sciences were directed to leave the workplace. The order was lifted on 23 September.

Macquarie University (2 October 2025). SafeWork NSW issued an improvement notice for failing to adequately consult with workers on a restructure. The university was required to undertake further consultation with unions and workers to identify psychosocial risks, demonstrate that employee feedback had been considered, and remedy the contravention by 13 November 2025.

Department of Defence (19 December 2025). The NSW Local Court convicted Defence and imposed a $188,000 fine plus an adverse publicity order under section 236 of the Commonwealth WHS Act. The case concerned a 34-year-old RAAF technician who took his own life on duty at RAAF Base Williamtown on 28 July 2020. Defence pleaded guilty to a single charge under section 33 (failure to comply with a health and safety duty), admitting it did not take reasonably practicable measures to eliminate or minimise psychosocial risks. The Comcare investigation established that the worker had been subjected to four separate Work Plans over a six-month period, that he displayed increasing signs of distress and ill-health during the process, and that supervisors had not been trained to identify a Work Plan as a psychosocial hazard, to assess associated risks, or to act on indicators that the process should be suspended pending medical assessment. This is the first conviction of a Commonwealth employer for failing to manage psychosocial risks under federal WHS law. The maximum penalty for the Category 3 offence was $500,000.

The pattern across all four is striking. In every case, the hazard was identifiable. In every case, the risk was foreseeable. In every case, what the regulator or court could not find was a contemporaneous record of consultation, risk assessment, control selection, or decision-making at the moments where psychosocial harm crystallised.

The structural shift: new audiences for the same evidence

Before October 2025, the audience for psychosocial consultation evidence in NSW was effectively one: SafeWork NSW. Inspectors, when they came, asked the regulator's questions, on the regulator's timeline, by the regulator's standards.

After October 2025, that audience has multiplied.

• A registered organisation can now prosecute a Category 3 consultation breach directly, after giving SafeWork first refusal. Where a union represents affected workers, this is no longer a hypothetical pathway.
• The Industrial Relations Commission can hear and determine WHS disputes, with unions granted standing as parties. Consultation records are evidence in IRC proceedings, not just regulatory investigations.
• HSRs and registered organisations can now access SafeWork NSW's confidential information about matters they raised, subject to not prejudicing ongoing investigations. This creates an asymmetric information environment in which the people who triggered an inspection can see what the regulator found.
• The published six-monthly reports create a public audience and a political audience. Volumes, types, and trends in psychosocial enforcement are now matters of public record.
• The court itself is now a potential audience years after the fact, given that limitation periods can be extended where the interests of justice require it.
• Workers' compensation claimants under the NSW Workers Compensation Legislation Amendment regime face a 42-day liability determination window for psychological injury claims linked to bullying, harassment, or excessive work demands. Whatever evidence the PCBU has must hold up at that timeline.

Each audience asks broadly the same question - was there genuine consultation, was the hazard assessed, were controls selected proportionately, was the decision documented - but each asks it differently, at a different speed, under a different evidentiary standard. The evidence base has to survive all of them.

What the evidence threshold now looks like

The Williamtown matter offers the clearest template, because the conviction record makes the missing evidence explicit. The questions Comcare and the court asked, in substance, were:

• Was each successive Work Plan consulted on as a hazard exposure, not just as a performance management instrument?
• Were observable signs of distress documented at the time they occurred?
• Were supervisors trained to recognise the Work Plan itself as a psychosocial hazard requiring its own controls?
• At each decision point where the process could have been suspended, was that decision made, recorded, and justified?

For a NSW PCBU after October 2025, the same questions can now be asked by SafeWork NSW, by an HSR-supported union via the IRC, by a registered organisation prosecuting a Category 3 offence, or by a worker pursuing a psychological injury claim under the accelerated workers' compensation pathway.

Most PCBUs cannot produce this evidence today. They have policies. They have training matrices. They have wellbeing programs and EAP utilisation statistics. None of these answer the questions above. What is required is decision-trail evidence - the contemporaneous record of work that occurred at moments where psychosocial risk crystallised.

Three priorities for officers under section 27

For officers exercising due diligence under section 27 of the WHS Act in NSW after October 2025:

Treat the Code of Practice as a compliance benchmark, not as guidance. Map the psychosocial risk register against the Managing Psychosocial Hazards at Work Code (2021), and against the updated requirements in sections 55C and 55D of the Work Health and Safety Regulation 2025. Where the PCBU departs from the Code, the equivalent-or-higher standard test under section 26A applies. The departure itself must be evidenced.

Treat each restructure, performance management process, role change, and grievance as a discrete psychosocial risk event with its own consultation record. The four enforcement events of late 2025 are not isolated cases. They are the regulator's stated focus: SafeWork NSW psychosocial inspectors must now complete a Psychosocial WHS Check at every workplace with 200 or more workers, supported by 20 newly deployed psychosocial hazard inspectors as part of a $127.7 million workplace mental health funding package.

Ensure consultation records can survive scrutiny by audiences other than SafeWork NSW. A record that satisfies an internal HR audit is not necessarily a record that survives an IRC arbitration, a union-led prosecution, or a workers' compensation liability determination at 42 days. The evidentiary bar is set by whichever audience tests it first.

The deeper point

The 2025 NSW reforms are not a step-change in what PCBUs are legally required to do. They are a step-change in how thoroughly, by whom, and on what timeline that work will be examined.

Psychosocial risk management has been treated by many organisations as a documentation exercise - a matter of having the right policies, the right training records, and the right wellbeing language. The October 2025 reforms close the gap between what PCBUs say they do and what they can evidence having done. That gap is no longer a documentation problem. It is an evidence-of-consultation problem.

And in NSW, four different audiences can now ask the same question.

Working through the full risk management framework and a worked example of a risk assessment is the most direct way to make these obligations concrete in your operating context.