Workplace safety
NSW WHS codes of practice and the s 26A duty
Section 26A of the Work Health and Safety Act 2011 (NSW) commenced on 1 July 2026. A business must now comply with each approved code of practice that applies to its work, or manage the hazards in a different way that gives an equivalent or higher standard of health and safety. Before then, NSW codes were only evidence of what was reasonably practicable.
Updated . General information, not legal advice.
What does s 26A of the NSW WHS Act require?
If the Minister has approved a code of practice, a person conducting a business or undertaking must either comply with the code or manage the hazards and risks differently in a way that provides a standard of health and safety equivalent to or higher than the code requires.
Section 26A was inserted by the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 and commenced on 1 July 2026 (Work Health and Safety Act 2011 (NSW)). It sits in Division 3 of Part 2, the further duties of businesses. Section 30 defines a health and safety duty as a duty under Divisions 2, 3 or 4 of Part 2, so failing to meet s 26A can be prosecuted as a Category 1, 2 or 3 offence, like any other health and safety duty.
Section 26A is not a new idea. Queensland’s WHS Act has had the same comply-or-equivalent duty in its own s 26A since 2017.
How has the legal status of NSW codes changed?
Before 1 July 2026, an approved code was admissible in a prosecution as evidence of whether a duty had been met and of what was reasonably practicable (s 275). That still applies, and s 26A now adds a duty to comply with the code or meet an equivalent or higher standard.
| Provision | Effect |
|---|---|
| s 274 | The Minister approves, varies or revokes codes. A code must be developed through consultation between the Commonwealth, state and territory governments, unions and employer organisations |
| s 275(2)–(3) | In a prosecution, a code is admissible as evidence of compliance, and the court may rely on it to decide what is reasonably practicable |
| s 275(4) | You can still show compliance by a different method that gives an equivalent or higher standard |
| s 26A (from 1 July 2026) | A positive duty to comply with an applicable code or achieve an equivalent or higher standard |
SafeWork NSW describes codes as now being the minimum performance standards a business is expected to meet (codes of practice). An inspector can refer to a code when issuing an improvement or prohibition notice.
How should I read the words in a code?
SafeWork NSW says ‘must’ marks a legal requirement, ‘should’ marks the standard the code requires, which you can depart from only with an equivalent or higher alternative, and ‘may’ marks an optional course of action.
The ‘should’ statements are where s 26A changes most in practice. Before July they were recommendations that a court could take into account. Now, if you do not follow a ‘should’, you need to be able to show your alternative is at least as protective.
Which codes of practice are approved in NSW?
SafeWork NSW lists about 50 approved codes as at 5 November 2026, covering general risk management, consultation, facilities, first aid, psychosocial hazards, harassment, fatigue and many industry- or task-specific risks.
| Code | Version |
|---|---|
| How to manage work health and safety risks | August 2019 |
| Work health and safety consultation, cooperation and coordination | December 2022 |
| Managing the work environment and facilities | August 2019 |
| First aid in the workplace | January 2020 |
| Hazardous manual tasks | August 2019 |
| Managing psychosocial hazards at work | May 2021 |
| Sexual and gender-based harassment | June 2024 |
| Managing the risk of fatigue at work | February 2026 |
| Managing electrical risks | August 2019 |
| Managing noise and preventing hearing loss at work | December 2022 |
Several codes carry 2026 version dates, including codes on biological hazards, elevating work platforms, the healthcare and social assistance industry, respirable crystalline silica, worker accommodation and tunnels and shafts in construction. Check the SafeWork NSW list for the current version of any code you rely on, because an updated code can move your benchmark.
How do I comply with s 26A?
Work out which approved codes apply to your work, compare your controls against each one, and either adopt the code’s approach or record why your alternative gives an equivalent or higher standard.
- List your hazards and match each one to the applicable codes.
- For each code, check every ‘must’ and ‘should’ against what you do now.
- Where you depart from a code, write down the alternative, the reasoning and the evidence that it is at least as protective.
- Consult workers and health and safety representatives about the review and any changes.
- Train managers and officers on the codes that matter to your operations.
- Keep records of the risk assessments, reviews and actions, and review them when a code is updated.
Officers must exercise due diligence to ensure the business complies (s 27), so the code review is also evidence for directors. The officer due diligence audit, consultation duty checker and WHS record-keeping checker help structure the work.
How do codes work outside NSW?
Queensland has the same comply-or-equivalent duty. WorkSafe Victoria says a duty holder who complies with its psychological health compliance code is taken to have complied with the duties the code covers. Under the model WHS Act, s 275 makes an approved code admissible as evidence of what is reasonably practicable.
If you operate in several states, apply the strictest approach across the business: treat applicable codes as the standard to meet unless you can document an equivalent or better control. For psychosocial risk specifically, see NSW psychosocial compliance and psychosocial hazards and risk assessment.
Questions
Is breaching a code of practice an offence in NSW?
The code itself is not an offence provision. Failing to comply with a code, or to meet an equivalent or higher standard, breaches the s 26A duty, which can be prosecuted through the existing Category 1 to 3 offences.
When did s 26A start?
Section 26A of the Work Health and Safety Act 2011 (NSW) commenced on 1 July 2026.
Can I use my own method instead of the code?
Yes, if your method gives a standard of health and safety equivalent to or higher than the code. Document the comparison so you can show it to an inspector.
Do Australian Standards have the same status as codes?
No. Only codes approved by the Minister under s 274 are covered by s 26A. A code may adopt or refer to a standard, and SafeWork NSW publishes guidance on how codes and standards interact.
Sources
- Work Health and Safety Act 2011 (NSW)
- SafeWork NSW: Codes of practice and the s 26A duty
- Work Health and Safety Act 2011 (Qld)
- WorkSafe Victoria: How to use the psychological health compliance code
- Safe Work Australia: Model WHS Act
Checked against these sources on 5 November 2026. Spotted something out of date? Tell us.