Safety laws are set to be expanded in NSW to enhance protections for workers and businesses when using a digital work system. In an Australian first the new legislation aims to ensure that safety laws are adapted to reflect modern workplaces.

On 12 February 2026, the Work Health and Safety Amendment (Digital Work Systems) Bill 2025 (NSW) (the Bill) was passed by NSW Parliament. The Bill amends the Work Health and Safety Act 2011 (NSW) (WHS Act), introducing new obligations that regulate the risks arising from commonplace workplace technologies used to allocate and monitor work.

Described by State Health and Safety Minister Sophie Cotsis as striving to ‘ensure that workers who work in accordance with digital systems have the same rights as everyone else’, the Bill:

• creates a new work health and safety (WHS) duty for ‘digital work systems’;
• requires Persons Conducting Business Undertakings (PCBUs) to manage risks created by artificial intelligence (AI), automation, and algorithms;
• grants WHS entry permit holders with access to inspect digital work systems where these systems are suspected of contravening WHS laws;
• seeks to prevent psychosocial, surveillance and workload issues associated with the growing reliance on technology in the workplace; and
• positions NSW as a national leader on the regulation of digital WHS risks.

The duties imposed by the new legislation mark the first explicit regulation of AI-based work allocation, monitoring and automated decision-making under Australian WHS legislation.

These duties, introduced to protect the safety and dignity of workers in the digital age, bring significant compliance implications for businesses across NSW.

What constitutes a ‘digital work system’?

The Bill introduces the concept of a ‘digital work system’.

This is broadly defined in the Bill as an ‘algorithm, artificial intelligence, automation or online platform‘.

The definition is likely to capture systems including automated rostering tools, performance-tracking software, task allocation tools and algorithmic scheduling systems.

However, the deletion of ‘software’ from an early version of the Bill clarifies that email and other messaging systems are excluded.

New duty of care

The Bill expands the duty of care so that a PCBU must ensure, as far as reasonably practicable, that the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking. This new primary duty of care highlights how ‘digital work systems’ are not just equipment, but rather a system of work which the PCBU must actively monitor and control to prevent harm just like any other hazard in the workplace.

New section 21A of the WHS Act will set out specific risks that PCBUs must consider when utilising a digital work system, including:

• Excessive or unreasonable workloads, which could be generated by automated rostering or task allocation that fails to account for worker fatigue or breaks.
• Excessive or unreasonable metrics used to assess or track the performance of workers, such as where algorithms drive real-time KPI systems and set targets that force workers to neglect safety or causes distress.
• Excessive or unreasonable monitoring or surveillance of workers, including biometric tracking or GPS-based oversight. Where employers use digital tools such as monitoring keystroke patterns and website and application tracking on company computers or Wi-Fi, amongst others, the employer will need to assess whether the use of these tools could amount to a WHS risk.
• Unlawful discriminatory practices or decision-making in the conduct of the business or undertaking that may arise from automated decision-making or biased algorithms. This may include, but not limited to, systems which deprioritise workers with certain availability, such as carers, older workers and students, or allocation algorithms which favour full-time workers over part-time or casual workers for certain shift times.

These provisions ultimately expand employer accountability for the design, monitoring and control of AI-driven work systems.

Right of WHS entry permit holders to access and inspect Digital Work Systems

Existing WHS laws provide that inspectors, unions and other permit holders may enter workplaces to inquire into suspected contraventions of the WHS Act. The Bill expands these powers, with a PCBU now being required to provide a WHS entry permit holder with reasonable assistance to access and inspect a digital work system relevant to a suspected contravention of the WHS Act.

In practice, this would involve ‘allowing the permit holder to access and inspect the system or provide an explanation of how the system functions so that the permit holder can meaningfully carry out the inspection‘ and ‘identify risks embedded‘ within the digital work systems, according to the Second Reading Speech. Failing to comply with a requirement to provide a WHS entry permit holder with assistance to access and inspect a digital work system can incur a fine of 121 penalty units ($13,310) for an individual or 607 penalty units ($66,770) for a body corporate.

This is an Australian-first power and a major shift in digital transparency for businesses, raising concerns of unprecedented access to sensitive digital data and, in turn, heightened privacy risks. NSW Shadow Treasurer Scott Farlow claimed that this amendment created ‘unprecedented new powers to access information they have no right to access during an era of increased concern over data privacy‘ under the guise of ‘digital safety’. Notwithstanding this criticism, PCBUs will be required to provide a WHS entry permit holder with assistance to access and inspect a digital work system where doing so would contravene a Federal or State law.

The powers of a WHS entry permit holder to access digital work systems will also be subject to guidelines developed by SafeWork NSW, and subject to public consultation. WHS permit entry holders will not be able to exercise their powers until at least a month after SafeWork NSW publishes these guidelines and are obliged to first provide at least 48 hours’ notice to the PCBU before requiring the PCBU to make a digital work system available for inspection.

Amendments made to the Bill before passing also includes an additional review rule introduced under s 276E, which involves the Minister reviewing and identifying any adverse outcomes from the new laws 12 months after they commence.

Next steps for employers

The Bill signifies an unprecedented level of scrutiny on the technologies used by businesses, with the broad definition of digital work systems meaning that even commonplace HR systems, such as scheduling software and management platforms, will fall within the scope of the Bill.

An expected challenge for businesses will be interpreting what constitutes ‘excessive or unreasonable’ in relation to workloads, metrics, and monitoring or surveillance of workers, as well as what amounts to the ‘reasonable assistance’ businesses must provide to entry permit holders. Without further guidance, businesses should expect SafeWork NSW to take a precautionary approach, particularly where businesses may be limited in their capacity to challenge or understand automated decisions.

The broadly defined obligations of the Bill might additionally cause challenges for businesses in identifying what documentation will be required to demonstrate compliance and how to respond to the expanded inspection and information-gathering powers of WHS entry permit holders. Given the limited sector-wide consultation to date, it remains unclear how the law will apply in practice. There is a risk that businesses may face more audits, documentation requirements, and system reviews without a marked improvement in worker wellbeing.

There is also concern that the focus on ‘digital work systems’ as a distinct regulatory category will shift attention from core psychosocial hazards. WHS laws typically focus on psychosocial risks such as autonomy, job clarity, organisational support and workload, all which generally derive from structural and cultural drivers including leadership behaviours, staffing levels and targets. There is concern that by focusing on the technology itself, the Bill may unintentionally shift the focus away from these larger influencers of mental health and wellbeing in the workplace.

To prepare for the new requirements, businesses should:

• Identify all digital work systems that are currently in place.
• Perform a targeted psychosocial risk review to identify any compliance gaps.
• Where risks are identified, assess and manage these risks as the business would with any other workplace hazard, including consulting the workers who use or are affected by digital work systems.
• Formalise internal governance around digital work systems, including ensuring human oversight on the usage of and documenting any decisions and risk assessments. This will align with the Bill’s intent to ensure that technology does not replace human judgement on safety-critical decisions.
• Update WHS policies and processes to document controls for digital work systems. Businesses should ensure there are clear protocols for managing the new duties and that they are prepared for the WHS entry permit holders’ expanded right of access and inspection.
• Ensure that human resources, managers and system owners understand the practical implications of the new amendments and how to use digital work systems responsibly.

This article was written by Greg McCann, Partner, Lily Schafer-Gardiner, Special Counsel, and Emily Calbert, Law Graduate.