Revised amendments to the Information Rights Act and the related Regulations

Expansion of Workplace Protections in New South Wales

The Industrial Relations and Other Legislation Amendment Bill 2025, recently introduced in New South Wales, aims to refine dispute resolution processes and strengthen workplace protections. One of the key changes is the establishment of a new anti-bullying and sexual harassment jurisdiction within the Industrial Relations Commission (IRC).

Under the new anti-bullying jurisdiction, the IRC can now issue orders to stop and remedy bullying. Bullying is defined as repeated unreasonable behavior that creates a risk to health and safety, excluding reasonable management action. Orders may include a prohibition on continuing or repeating the bullying, performance of reasonable actions or a course of conduct to be carried out to redress loss or damage suffered by the employee, a public apology or retraction, or the implementation of a program or policy aimed at eliminating bullying.

The IRC's powers in disputes have been broadened, allowing it to issue recommendations or directions during conciliation without the consent or agreement of the parties involved, and to require written reasons for any failure to comply with those recommendations or directions. If the IRC finds that bullying at work has occurred and that there is a risk it will continue, it may make any order it considers appropriate, including a payment of damages to the employee of up to $100,000.

Civil penalties will apply for a breach of orders made by the IRC under the new jurisdictions, with penalties ranging from $18,870 for individuals to $93,900 for others. Vicarious liability may apply if the employer is unable to prove they took all reasonable steps to prevent the alleged conduct.

In addition to bullying, the new sexual harassment provisions under the IR Act define "sexual harassment" in the same way as the Anti-Discrimination Act 1977 (NSW) (AD Act). An employee who reasonably believes they have been sexually harassed at work may apply for a sexual harassment order from the IRC, provided they are not covered by the Federal Fair Work Act 2009 (FW Act). The IRC can make orders including a payment of damages to the employee of up to $100,000 if it finds that sexual harassment has occurred.

The existing reverse onus of proof under s.210 of the IR Act has been amended, and an objective test has been introduced. The amendments also broaden the scope of employee claims against NSW State public sector, local government, and unincorporated entities that can be heard by the NSW Industrial Relations Commission (IRC).

The Bill significantly expands the grounds on which an employee or prospective employee must not be victimised, including for making a complaint or enquiry regarding their employment, for entitled benefits or claims under workers compensation legislation, and for having a characteristic protected from discrimination under the AD Act. The maximum amount that an industrial court may order an employer to pay on a small claims application has been increased from $10,000 to $100,000.

These reforms aim to create a safer and more equitable workplace environment in New South Wales, particularly around digital work systems and AI-related issues. However, they also create tensions by potentially diverging from national workplace relations laws and raising concerns about regulatory complexity and impacts on innovation and productivity.

All stages of a claim, including conciliation, arbitration, and final determination, can be heard by the IRC. An employee or prospective employee who alleges sexual harassment can apply to the IRC for a sexual harassment order within 24 months after the alleged incident. The changes are not yet operative, but they represent a significant step forward in protecting workers' rights and promoting a fair and respectful workplace culture in New South Wales.