The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) passed Parliament on 12 February 2026, making New South Wales the first Australian jurisdiction to impose specific work health and safety duties in relation to digital work systems.
Background
The reforms respond to recommendations from the 2022 NSW Legislative Council Select Committee on the Future of Work. The Committee found that WHS laws should reflect the growing use of automated processes. This applies particularly where technologies are used to allocate work. Reports of harm linked to AI and digital platforms, particularly in the gig economy, have accelerated calls for specific regulation.
The Act amends the Work Health and Safety Act 2011 (NSW). NSW now diverges from other Australian states and territories, which have yet to legislate specific duties in this area. Safe Work Australia is separately developing model WHS laws, and the Act includes a requirement that the Minister review the new provisions if and when those model laws address substantially the same subject matter.
What is a “digital work system”?
The Act defines a digital work system as an algorithm, artificial intelligence, automation or online platform. The definition is intentionally broad and will capture most modern workplace technologies, including automated rostering tools, performance tracking software, AI-driven scheduling systems, and gig economy platforms.
New duties for employers
Primary duty of care – s 19
The existing primary duty under s 19 of the WHS Act has been amended to expressly include an obligation to ensure that workers’ health and safety is not put at risk from the use of digital work systems by the business or undertaking. This extends to any use of AI, not just work allocation.
Specific duty for work allocation – s 21A
A new s 21A requires persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, that the health and safety of workers is not put at risk from the allocation of work by a digital work system. This duty is specific to work allocation.
PCBUs must consider whether digital work allocation creates or results in any of the following risks:
- excessive or unreasonable workloads
- excessive or unreasonable metrics used to assess and track worker performance
- excessive or unreasonable monitoring or surveillance of workers
- unlawful discriminatory practices or decision-making
The Act does not define “excessive or unreasonable”. Until SafeWork NSW publishes guidance, PCBUs will need to apply a precautionary approach.
Union right of entry to inspect digital work systems
The Act gives WHS entry permit holders a new power to require a PCBU to provide reasonable assistance to access and inspect a digital work system relevant to a suspected contravention of the WHS Act.
Key procedural requirements apply:
- The permit holder must give the PCBU at least 48 hours’ notice, and no more than 14 days’ notice, of the proposed entry.
- The power is subject to guidelines to be issued by SafeWork NSW following public consultation.
- Permit holders cannot exercise the power until at least one month after the relevant guidelines are published.
PCBUs are not required to provide assistance where doing so would contravene a Commonwealth or state law. Penalties for failing to comply with a valid request are $13,310 for an individual and $69,980 for a corporation.
When do the changes take effect?
The Act commenced in part on 18 February 2026 (the date of assent). However, the new duties under ss 19 and 21A will not commence until proclaimed. SafeWork NSW must publish the required guidelines before permit holders can exercise the right of entry power. The guidelines have not yet been drafted.
Review obligations
The Act includes two review mechanisms:
- Model laws review (s 276D): If Safe Work Australia’s model WHS laws address substantially the same subject matter as these amendments, the Minister must review whether the NSW provisions remain appropriate.
- 12-month review (s 276E): The Minister must review the amendments within 12 months of commencement and report to Parliament within 18 months, including any adverse outcomes.
What should employers do now?
Although the duties have not yet commenced, employers using digital systems to allocate work, monitor performance, or manage workers should begin reviewing their practices now. Relevant steps include:
- identifying digital work systems currently in use, including third-party platforms
- assessing whether those systems create risks of excessive workloads, monitoring, or discriminatory outcomes
- reviewing AI governance frameworks and due diligence processes for third-party software
- considering how to respond to a union entry notice and what “reasonable assistance” would involve in practice
Jake McKinley notes that this article is written for the purpose of providing generalised information and not to provide specialised legal advice. If you require qualified legal advice on anything mentioned in this article, our experienced team of solicitors at Jake McKinley are here to help. Please get in touch with us on 02 9232 8033 today to make an enquiry.
Article Written by Peter Raykhman, Solicitor
