Australia: NSW Expands WHS Framework to Capture “Digital Work Systems”

Authors: Amy Zhang, Justin Handisurya, and Aatish Budhwani

NSW has become the first Australian jurisdiction to regulate the WHS risks associated with the use of algorithms, AI, automated decision-making tools, wearable monitoring devices, and digital platforms for the performance of work.

On 12 February 2026, the NSW Parliament narrowly passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (NSW) (“the Bill”), introducing significant new obligations in the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) in relation to “digital work systems.”

The reforms, an Australian first, reflect growing regulatory concern about the health and safety risks associated with the use of algorithms, artificial intelligence (AI), automated decision-making tools, wearable monitoring devices, and digital platforms to allocate, monitor, assess and manage work.

We summarise below some of the key reforms that employers should be aware of, and the implications of these reforms for employers.

 

What is a “Digital Work System”?

The Bill introduces a statutory definition of “digital work system,” capturing algorithms, artificial intelligence, automation, and online platforms. The term “software”, initially referenced in the original bill, was removed in response to concerns that it may unintentionally extend to ordinary workplace tools such as email and messaging platforms.

 

Expansion of Primary Duty of Care

Under section 19 of the WHS Act, persons conducting a business or undertaking (PCBUs) have an existing duty to ensure workers’ health and safety so far as is reasonably practicable. An addition to section 19 and a new section 21A expands this duty to ensure workers are not put at risk from the use of, and allocation of work by, digital work systems in the business or undertaking.

This includes risks arising from:

• excessive or unreasonable workloads for workers;
• the use of excessive or unreasonable metrics to assess and track the performance of workers;
• excessive or unreasonable monitoring or surveillance of workers; and
• discriminatory practices or decision-making in the conduct of the business or undertaking.

A breach of this duty will expose PCBUs to liability under the WHS Act. This includes a maximum penalty of $2,318,844.55 or 10 years imprisonment, or both, for category 1 (i.e. the most serious) breaches of WHS duties by a PCBU.

 

WHS Entry Permit Powers

The Bill also expands the rights of WHS entry permit holders under s 118 of the WHS Act, requiring PCBUs to provide ‘reasonable assistance’ to entry permit holders to access and inspect digital work systems when investigating suspected breaches of the WHS Act.

This right is not unfettered. A permit holder must:

• give at least 48 hours’ notice (but no more than 14 days’ notice) of the proposed entry during business hours; and
• comply with guidelines that will be issued by SafeWork NSW and published on SafeWork NSW’s website.

Importantly, the new access and inspection power is conditional upon the issuance of guidelines by SafeWork. This means that an entry permit holder cannot exercise the new powers to access and inspect digital work systems until relevant guidelines are issued by SafeWork. At the time of writing, SafeWork has not yet issued or published any such guidelines.

The amendments also preserve important safeguards. Under section 118(2), a PCBU is not required to allow or assist a WHS entry permit holder to inspect or make copies of a document where doing so would contravene another Commonwealth or State law. In addition, section 148 of the WHS Act continues to impose penalties for the unauthorised use or disclosure of information obtained by entry permit holders in the course of exercising their powers.

The Bill also introduced a provision requiring the Minister to proactively conduct a review of these new amendments to determine whether relevant policy objectives remain valid, whether the terms of the new amendments remain fit for purpose, and whether the amendments have resulted in any adverse outcomes. Employers can therefore expect that this area will continue to be an evolving space.

Next Steps for Employers

Employers operating in NSW should take proactive steps now to prepare for the commencement of the amendments. In particular, employers should:

1. Review systems – Review all digital work systems that allocate tasks, monitor performance, track employees or make decisions in relation to the conduct of employers’ business or undertaking. In addition, review any internal policies, benchmarks, targets, metrics, performance indicators or similar that are used by your business, and which might influence or dictate the way in which any digital work systems operate. For example, if your business has a policy of requiring workers to meet certain quotas (e.g. minimum deliveries per hour), and work is allocated by a digital work system that operates to ensure workers are meeting those quotas, it would be prudent to review those policies.
2. Assess risks – Determine whether these systems could create or increase health, safety, or psychosocial risks, and document the findings.
3. Implement controls – Put in place appropriate measures and regularly monitor their effectiveness. If there is a possibility that digital work systems used by your business are or may be creating risks to health and safety, reevaluate the use of these systems or make necessary adjustments to the way they operate.
4. Integrate into frameworks – Incorporate digital work system risks into existing psychosocial hazard management frameworks.
5. Consider interplay with other obligations – Consider whether other laws may be relevant to consider in relation to the risks arising from digital work systems (for example, discrimination law).
6. Engage in consultation – If important to your business, take part in consultation processes with SafeWork NSW on the forthcoming access/inspection guidelines to ensure they are practical and workable.
7. Consider wider implications – Recognise that similar obligations may arise or be introduced in other Australian jurisdictions, and take a national perspective where relevant.
8. Maintain human control – Ensure that digital work systems used in your business or undertaking are actively supervised and controlled by human beings and that human decision-making is not being abdicated to digital, algorithmic or automated decision-making.