Major reforms to workplace protections commenced on 13 October 2025 under the NSW workplace bullying and sexual harassment reforms, introducing a new anti-bullying and sexual harassment jurisdiction within the NSW Industrial Relations Commission (IRC). The IRC can now issue “stop” orders, compel employers to take specific preventative measures, and award damages of up to $100,000 for substantiated bullying or sexual harassment claims. Civil penalties also apply where orders are breached, with fines of up to $18,870 for individuals and $93,900 for employers.
The Amendment
The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (No 42) changes several key laws. It amends the Industrial Relations Act 1996 (NSW), the Industrial Relations (General) Regulation 2020, and the Work Health and Safety Act 2011 (NSW). Together, these amendments create a single-jurisdiction pathway for managing bullying, sexual harassment, and WHS disputes across the NSW public sector. The reforms strengthen obligations for psychosocial risk prevention, early intervention, and systemic reporting. They aim to improve accountability and transparency in public workplaces.
Coverage under the NSW Workplace Bullying and Sexual Harassment Reforms
The new jurisdiction applies to NSW Government sector workers. It covers over 400,000 employees across hospitals, schools, councils, and other public institutions. Private sector workers remain covered by existing federal mechanisms. These include the Fair Work Commission’s anti-bullying jurisdiction and the Sex Discrimination Act 1984 (Cth). The NSW reforms do not replace those Commonwealth regimes. They complement them by offering a state-based framework for the public sector.
Powers of the Industrial Relations Commission
Under the amended legislation, the IRC may now receive and determine applications for stop-bullying and sexual harassment orders. These applications can be made directly by an affected employee or by an industrial organisation representing that employee. The Commission must first attempt conciliation between the parties. If conciliation fails, it proceeds to a determination phase where the IRC can make any order it considers appropriate to prevent future bullying or harassment. Orders may be directed at individuals, groups of employees, employers, or any person conducting a business or undertaking connected to the relevant conduct.
The IRC can order payment of damages up to $100,000 to workers who suffer loss from bullying or harassment. Contraventions of such orders attract civil penalties. Separate civil penalty mechanisms apply to breaches of industrial instruments under the Industrial Relations Act. The Act also introduces new WHS powers, allowing the IRC to adjudicate certain WHS disputes. These include cease-work rights and appeals from WHS decisions.
Defining Bullying and Sexual Harassment
Bullying is defined as repeated unreasonable behaviour directed at a worker or group of workers that creates a risk to health and safety. Importantly, reasonable management action carried out in a reasonable manner does not constitute bullying. Sexual harassment refers to any unwelcome conduct of a sexual nature in circumstances where a reasonable person would expect the conduct to cause offence, humiliation, or intimidation.
Enforcement and Penalties
Failure to comply with an IRC order attracts significant civil penalties: $18,870 for individuals and $93,900 for employers. The Commission also possesses power to grant injunctions restraining further contraventions and may deal with contempt proceedings where its orders are disobeyed.
Relationship with Anti-Discrimination and WHS Laws
The reforms clarify the interaction between the IRC’s jurisdiction and existing anti-discrimination frameworks. A worker cannot pursue a sexual harassment order through the IRC if they have an ongoing complaint or proceeding under anti-discrimination law regarding the same conduct, unless that process has failed for want of jurisdiction. This provision prevents duplication and double recovery of compensation.
Amendments to the Work Health and Safety Act 2011 (NSW) enable the IRC to hear certain WHS disputes, including cease-work issues, and provide for appeals under the Industrial Relations Act. SafeWork NSW must now furnish biannual reports to the Minister outlining psychosocial complaints, compliance notices, and recommendations to reduce psychological injury risks across NSW workplaces.
Relationship with the Fair Work Commission
The Fair Work Commission retains its anti-bullying jurisdiction for federal system employees. However, unlike the IRC, it cannot award damages. Consequently, NSW Government sector employees may find the IRC process advantageous, given its capacity to provide both preventative and compensatory remedies. Parties should evaluate the forum most suitable to their circumstances, considering evidentiary thresholds, timeframes, and the specific relief sought.
Practical Process Overview
Before applying, workers should compile evidence of alleged behaviour, including communications, witness accounts, or other corroborating material. Once filed, the IRC will schedule conciliation aimed at negotiated resolution – potentially through undertakings, training commitments, or policy reforms. If conciliation fails, the matter proceeds to arbitration, during which the Commission considers affidavit evidence and submissions addressing the statutory criteria. Orders made by the IRC are enforceable, and breaches may result in civil penalties or injunctions.
Employer Preparedness
Employers should take proactive measures to comply with the new obligations. This includes reviewing and updating workplace policies to define bullying, sexual harassment, and victimisation. Organisations must implement psychosocial risk controls and establish clear complaint escalation procedures. Regular staff training should be mandatory during induction and annual refreshers. Employers must also keep detailed records of all incidents, responses, and WHS consultations.
Organisations should conduct psychosocial risk assessments and adjust rostering or supervision practices where necessary. They should also prepare for potential union involvement in IRC proceedings. Employers must review insurance policies for employment-related liability coverage. Internal governance systems should be capable of implementing any orders or recommendations made by the IRC.
Common Questions
The new jurisdiction applies only to NSW public sector workers. Private sector employees must continue relying on federal or existing state mechanisms. The Act sets a six-year limitation period for civil penalty proceedings under industrial instruments. However, there is no express limitation period for preventative bullying or harassment orders. Nevertheless, prompt action remains advisable, especially where ongoing risk exists.
The IRC can award damages up to $100,000 where an employee suffers loss due to bullying or harassment, although its overarching purpose remains preventative. Applicants cannot pursue concurrent anti-discrimination proceedings for the same conduct, preventing dual compensation claims.
Strategic Implications for Practitioners
For lawyers and HR professionals, the IRC’s expanded powers alter the strategic landscape for workplace conduct disputes.The Commission’s power to grant preventative and compensatory relief, along with civil penalties, requires a proactive compliance-focused approach from employers. Evidence collection and presentation should focus on the objective nature of bullying and harassment. They must also demonstrate the reasonableness of managerial actions.
When seeking remedies, practitioners should propose orders that are both practical and proportionate, balancing worker protection with operational efficiency. Given the reputational and financial risks of non-compliance, organisations should ensure executive oversight of all required training, supervision, and reporting measures.
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
