WHS and OHS Regulatory Update: January 2026

In Short

• Incident notification obligations under the model WHS laws have expanded, including violent incidents, work-related suicide and extended absences, subject to state adoption.

• NSW businesses with workers exposed to hazardous noise must comply with new audiometric testing requirements, with full implementation by 1 January 2026.

• Courts are increasing penalties where basic safety measures are ignored, reinforcing that primary responsibility rests with the employer.

Tips for Businesses
Regularly review WHS procedures to reflect legislative changes in your state or territory. Conduct proper risk assessments, supervise worksites and implement simple control measures early. If workers are exposed to hazardous noise, plan audiometric testing now. Do not rely on worker behaviour as a defence. Employers carry primary safety responsibility.

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Table of Contents

• Legislative Updates
• Cases and Incidents
• Key Takeaways
• Questions?

Workplace health and safety officers must continuously ensure their organisations meet compliance requirements while staying informed about current workplace health and safety developments. This article outlines important updates to assist you in fulfilling these duties.

Legislative Updates

National WHS Act and Regulations Amendments

Safe Work Australia has published significant amendments to the model Work Health and Safety Act and Regulations. Most notably, the incident notification requirements have been expanded to include (but are not limited to):

• dangerous incidents involving mobile plant and falls;
• violent incidents, including sexual assault;
• work-related suicide and attempted suicide; and
• extended worker absences (15 or more calendar days) due to work-related psychological or physical injury or illness. 

NSW Audiometric Testing Requirements

New requirements apply to businesses with workers exposed to hazardous noise from 1 January 2026. The NSW Government approved the commencement of Clause 58 – Audiometric Testing under the Work Health and Safety (WHS) Regulation 2017 from 1 January 2024, with the final stages commencing 1 January 2026.

When workers frequently require hearing protection that exceeds the exposure standard, employers must provide hearing tests. The employer must organise and pay for these audiometric tests.

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Cases and Incidents

Inadequate Safety Measures

WHS laws make it clear that employers must take their safety obligations seriously and implement appropriate control measures. The following case illustrates the consequences of failing to adequately manage workplace hazards. 

What Happened?

A worker engaged by a roofing business fell through a skylight and suffered serious injuries. This case represents the second appeal of the original matter, heard in the Queensland Court of Appeal. 

From the outset, the company pleaded guilty to contraventions of its WHS obligations. The original investigation revealed that:

• no site assessment had been conducted;
• no supervisor was present on site; 
• no identification of hazards had occurred; 
• workers were not warned of the risks on site, including risks associated with the skylight; and 
• no safety equipment or barriers were provided.

What Was the Outcome?

Here’s a slightly plainer version, while keeping it professional:

The prosecutor appealed the earlier decisions, arguing that the $30,000 fine was clearly too low. The Court found that too much emphasis had been placed on the worker’s negligence, and not enough on the respondent’s responsibility. Additionally, the Court said the original sentencing range was set too low, especially given that the maximum penalty for the contravention is $1.5 million.

The Court considered several aggravating factors in its reassessment:

• the objective risk was significant;
• the risk was clearly foreseeable and probable; and 
• simple and inexpensive safety measures would have prevented the incident. 

The complete lack of risk assessment and supervision was considered a significant departure from reasonable conduct.

Key Takeaways

This case serves as a stark reminder that courts will not accept inadequate penalties where serious safety failures have occurred. The significant increase from $30,000 to $75,000 demonstrates the judiciary’s commitment to ensuring penalties reflect the gravity of safety breaches.

The Court’s focus on the respondent’s responsibility, rather than the worker’s conduct, reinforces that the primary duty for workplace safety sits with the PCBU. Employers cannot rely on a worker’s behaviour to reduce their core obligation to provide a safe workplace.

Questions?

If you need legal assistance with a WHS matter or need help identifying an officer, book a consultation call on Prism. As a member, you can request unlimited legal advice consultations.