The NSW Psychosocial Code of Practice from Guidance to Legal Benchmark under the 2025 Regulation
7 min read
The landscape of psychosocial risk management in New South Wales has changed again, this time decisively.
From 13 October 2025, the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 introduces section 26A to the WHS Act 2011 (NSW), creating a new duty for PCBUs to comply with approved Codes of Practice, or to meet an equivalent or higher standard of health and safety.
In effect, Codes of Practice, including the Managing Psychosocial Hazards at Work (2021) Code, will become de facto mandatory compliance benchmarks.
Combined with the WHS Regulation 2025 (sections 55C and 55D), which formalises how psychosocial hazards must be controlled, these changes make psychosocial risk management both a legal and evidentiary priority for every NSW organisation.
This article explains what these changes mean for PCBUs, what the Psychosocial Code still gets right, where it falls short, and how the new laws transform it from guidance to enforceable standard.
From Advisory to Enforceable the New Section 26A Duty
Under section 26A (WHS Act), a PCBU now has a positive legal obligation to
“Comply with an approved code of practice under this Act or achieve an equivalent or higher standard of health and safety.”
This reform means
Following an approved Code of Practice is now a legal pathway to compliance, not merely guidance.
If a PCBU chooses a different method, it must prove that its approach delivers a safety outcome equal to or better than the Code.
Failure to comply may constitute a breach of the WHS Act, even without an incident.
For psychosocial hazards, the Managing Psychosocial Hazards at Work Code of Practice (2021) is the primary approved code. From 13 October 2025, it becomes a default legal benchmark for psychosocial risk management in NSW.
What the Code Still Gets Right
A Legal and Practical Foundation
The Psychosocial Code remains the official reference for how PCBUs can meet their duty under the WHS Act and Regulation. It provides practical examples for hazard identification, worker consultation, and early intervention, and now, under s 26A, compliance with its provisions can directly demonstrate that a PCBU has met its WHS duties.
Alignment (At a High Level) with Regulatory Duties
The Code recognises that psychosocial hazards are to be managed using the risk management process required under Part 3.1 of the Regulation, identify, assess, control, and review. This aligns with the 2025 Regulation’s sections 55C and 55D, which formalise psychosocial risk management obligations.
Clarity of Roles
It reinforces the roles of PCBUs, officers, and workers, connecting psychosocial risk to the shared responsibilities under sections 19 and 27 of the WHS Act.
That foundation remains sound and now enforceable.
What Has Changed Under the 2025 WHS Regulation and s 26A WHS Act
Regulation 2025 – Sections 55C and 55D
Under the 2025 Regulation
Section 55C requires PCBUs to manage psychosocial risks using the hierarchy of control measures in section 36.
Section 55D (2) requires consideration of key factors such as
duration, frequency and severity of exposure
interaction or combination of hazards
job design and systems of work
environment and layout
information, training, instruction, and supervision.
Act 2025 – Section 26A
Section 26A takes the next step, it compels PCBUs to either
Comply with the Code, or
Demonstrate equivalent or higher safety performance.
This elevates the Code from persuasive guidance to a statutory benchmark.
In practice, a regulator or court can now find a PCBU in breach simply for failing to meet the standard set by the Code, even if no harm occurred.
Where the Code Falls Short Under the New Laws
Version Lag
The Code was written in 2021 and still references the 2017 Regulation. It lacks explicit reference to sections 55C–55D and the hierarchy of control now mandated by the 2025 Regulation. A PCBU relying solely on the 2021 Code without supplementing its system will not meet the regulatory requirements.
Limited Examples of Elimination or Engineering Controls
The Code emphasises administrative measures such as policies and training. Under s 26A, those measures must either mirror or exceed the Regulation’s expectation of higher-order controls e.g. work redesign, physical separation or elimination of harmful practices.
No Quantitative Benchmarks
Reg 55D requires consideration of “duration, frequency and severity” of exposure, yet the Code offers no metrics. To achieve equivalence, PCBUs will need to adopt measurable indicators.
Limited Shared Duty Guidance
The Code briefly mentions joint duties but doesn’t specify control coordination across PCBUs. Under s 26A, the absence of multi PCBU procedures could expose both host and labour hire employers for example to liability.
The Compliance Expectation
Under the combined operation of section 26A of the Act and sections 55C–55D of the Regulation, SafeWork NSW inspectors will expect to see
Code compliance or higher standard - Documented mapping of controls to each Code section or justification of equivalence
Application of hierarchy of control - Demonstrated elimination or redesign before administrative controls.
Consideration of section 55D (2) factors - Documented analysis of exposure, work design, and environment.
Consultation - Worker engagement records showing input into control design
Review and improvement - Scheduled reviews under sections 37–38.
Failure to produce these records can now be treated as both Regulatory non-compliance and breach of statutory duty under s 26A.
Achieving an Equivalent or Higher Standard
A PCBU that deviates from the Code must prove it delivers outcomes equal to or better than those achieved by Code compliant controls.
This can include
Applying evidence-based risk assessment models (e.g. ISO 45003 frameworks)
Using validated psychosocial survey instruments
Implementing engineering and technology controls that exceed Code recommendations
Documenting quantitative performance indicators and review cycles.
Regulators will assess equivalence on outcomes not effort. A PCBU’s documentation and monitoring systems must show that risk has been reduced “so far as reasonably practicable”.
Practical Steps for PCBUs Now
Update policies and procedures to reference section 26A and the WHS Regulation 2025.
Map existing controls to the Psychosocial Code to confirm compliance or identify gaps.
Apply the hierarchy of control (section 36) to psychosocial risks.
Document evidence of equivalence where alternative controls are used.
Establish quantitative metrics for exposure and control effectiveness.
Train officers on their due diligence obligations under the new framework.
Schedule audits to ensure compliance.
What This Means for Enforcement and Litigation
With s 26A in force, Codes of Practice acquire statutory weight.
Regulators and courts can now
Use non-compliance with a Code as prima facie evidence of a breach
Treat Code level performance as the minimum acceptable benchmark
Require PCBUs claiming equivalence to substantiate that claim with measurable data.
This shift effectively converts Codes of Practice from advisory references into mandatory minimum standards unless proven otherwise.
Key Takeaway
From 13 October 2025, the Psychosocial Code of Practice is no longer optional PCBUs must comply with it or exceed it.
The WHS Regulation 2025 (sections 55C–55D) defines how risks must be controlled, section 26A of the Act defines the minimum benchmark for doing so.
Organisations that integrate both instruments’ requirements into their WHS Management System will demonstrate genuine due diligence and avoid costly enforcement action.
How Lane Safety Systems Can Help
Lane Safety Systems assists NSW organisations to
Audit existing psychosocial frameworks against the 2021 Code and section 26A
Build risk control systems aligned with sections 55C–55D
Develop metrics to evidence “equivalent or higher” performance
Train officers on psychosocial due diligence.
Contact us today to ensure your psychosocial management system meets or exceeds the new statutory standard.
Editor’s Note
The WHS Regulation 2025 (NSW) now refers to provisions as sections, not clauses, this article uses the updated terminology.
This article provides general information only and does not constitute legal advice. Organisations should seek their own professional or legal advice about their specific circumstances.