Most provisions of the Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (Amendment Act) commenced on 13 October 2025. Most relevantly for public sector employers, it expands the powers of the Industrial Relations Commission of NSW, including by:
- Conferring jurisdiction to deal with stop bullying and sexual harassment claims in connection with work.
- Broadening the bases for a victimisation claim.
- Broadening the range and effect of the Commission’s orders in conciliation and arbitration.
New bullying and sexual harassment jurisdiction
The Commission now has power to hear applications concerning bullying or sexual harassment at work.
The provisions relevantly permit applications by:
- an employee (broadly defined) who reasonably believes they have been bullied at work and cannot make an analogous application to the Fair Work Commission (s 144D); or, in the case of the sexual harassment provisions, by an 'aggrieved person' who is not a national system employee under the Fair Work Act 2009 (Cth) (s 144P)
- an industrial organisation, including on behalf of multiple persons in related circumstances.
In both forms of application:
- The Commission will seek to settle the application by conciliation, and otherwise arbitrate. In arbitration, it can make a stop bullying order or a sexual harassment order if satisfied of certain matters.
- Stop bullying: that (a) the employee has been bullied at work; and (b) there is a risk that the employee will continue to be bullied at work (s 144G(1)). Bullied at work is defined in s 144C(1) (involving repeated, unreasonable behaviour that creates a risk to health and safety), but the definition 'does not apply to reasonable management action carried out in a reasonable way' (s 144C(2)).
- Sexual harassment: 'that the aggrieved person has been sexually harassed in contravention' of s 144N. Sexual harassment is defined to have the same meaning as in s 22A of the Anti-Discrimination Act 1977, with a non-exhaustive list of circumstances to be taken into account set out. There is also a direct prohibition, by way of civil penalty provision, against sexually harassing another person in connection with that person being an employee, prospective employee or person conducting a business or undertaking (s 144N). An employer or agent may be vicariously liable, but not if they prove that they 'took all reasonable steps to prevent the person from doing acts that would contravene' the prohibition (s 144O).
- The order making power extends to any order the Commission considers appropriate. In the case of a stop bullying order, this is further framed by preventing an employee from being bullied at work by the individual or group (s 144G(1)), with a non-exhaustive list of kinds of orders in s 144G(3). In the case of a sexual harassment order, there is a non-exhaustive list in s 144T(3) of the kinds of order that may be made 'to prevent the sexual harassment or remedy the contravention'. The kinds of orders are materially identical, with both including 'damages … as compensation for loss or damage suffered' (capped at $100,000) and prohibition orders. The Commission is required to consider certain matters in determining the terms of an order (ss 144G(5) and 144T(5)).
- Breach of the terms of an order, by a person bound by it (see ss 144G(2) and 144T(2)), carries a civil penalty (ss 144H and 144U).
- There are limits (which also now apply to victimisation applications) on bringing an application or recovering compensation where a person has already taken certain actions or recovered compensation under an anti-discrimination law (see ss 144I, 144V, 213A). An application, however, does not preclude taking certain steps under the WHS Act (see ss 144J and 144W).
The relevant provisions are similar to provisions contained in the Fair Work Act, except for the ability to award damages. A key issue, therefore, will be how the Commission exercises its discretion to order payment of damages, in the absence of guidance from federal jurisprudence arising from analogous provisions.
In the stop bullying context, the Commission may need to reconcile the overall preventative purpose of a stop bullying order with the express reference to a remedial power to award damages as compensation.
Expanded victimisation jurisdiction
The Commission’s victimisation jurisdiction has been expanded by amendments to s 210 of the Industrial Relations Act 1996 (IR Act) that broaden the bases on which an employer or industrial organisation is prohibited from victimising an employee or prospective employee. These include engaging, proposing, or refusing to engage in ‘industrial organising activities’, defined in the new s 209(3); being entitled to or claiming benefits in relation to a workplace injury; having a characteristic protected from discrimination; and making employment related complaints or inquiries.
New conciliation and arbitration powers
Amendments to s 134 of the IR Act (regarding conciliation):
- clarify that the Commission may make a recommendation or direction ‘regardless of whether a party to the industrial dispute consents or agrees’ with its making or giving
- provide that non-compliance ‘may not be penalised but may be taken into account’ in the exercise of the Commission’s functions under the IR Act, and that a party that does not comply must give written reasons to the Commission.
New s 136A (regarding arbitration) provides for a maximum civil penalty of $25,000 for contravening an order or determination made on a final basis under new s 136(1)(d), which applies to ‘an order or determination with prospective application’.
Other amendments
Other amendments to the IR Act include: introducing industrial dispute powers concerning the return of injured employees to work; revised objects, including regarding gender equality in the workplace; the expansion of the small claims jurisdiction (including increasing the maximum amount that the industrial court may order in a small claims application from $10,000 to $100,000) and consolidating provisions concerning civil penalties, alongside other procedural amendments.
The Amendment Act also varies the Work Health and Safety Act 2011 to, among other things, confer certain dispute resolution powers on the Commission, expand standing of registered organisations and introduce new information sharing provisions.
Contacts
Alexander Kiefer, Senior Solicitor
alexander.kiefer@cso.nsw.gov.au
Christina (Kitty) Ray, Director
christina.ray@cso.nsw.gov.au
Emma Moss, Director
emma.moss@cso.nsw.gov.au
Michael Granziera, Assistant Crown Solicitor
michael.granziera@cso.nsw.gov.au
