What Is the Amendment?
The Minns government has now legislated a major shift in work health and safety laws relating to the use of digital tools in the workplace and the risks associated with the use of these systems.
These provisions are the first of their kind in Australia.
The Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (NSW) updates the Work Health and Safety Act 2011 (NSW) to expressly regulate risks that arise from the use of digital tools in allocating, monitoring and evaluating work.
These changes reflect parliamentary concerns about the growing influence of algorithms, AI tools and automated systems on workers’ physical and psychological wellbeing.
The changes will commence from proclamation. For most provisions of the Amendment, this will be at least one month after guidelines are published on the right of entry by SafeWork NSW, following public consultation.
What Are Digital Work Systems?
A “Digital Work System” means an algorithm, artificial intelligence, automation or online platform.
The scope of the Digital Work System definition is broad, likely including any employee monitoring tools in the workplace, automated rostering software, or productivity tracking systems. Accordingly, any Digital Work System used, or any work allocated by such a system could be captured under the Amendment.
In practice, this means many common workplace systems are now in scope of the WHS Act, ranging from scheduling platforms in retail and logistics, to workflow engines in professional services, to AI‑assisted case management in public sector agencies.
An Expanded Duty of Care – Steps to Take
The Amendment makes two key changes to the duties of care owed under the WHS Act.
1st Key Amendment | Amending the primary duty of care in s.19 of the WHS Act to require persons conducting a business or undertaking (PCBUs) to ensure as far as is reasonably practicable that the health and safety of workers is not put at risk from the use of Digital Work Systems in the business. |
2nd Key Amendment | Inserting a new duty of care into s.21A of the WHS Act requiring PCBUs to ensure, as far as is reasonably practicable, that a worker’s health and safety is not put at risk from the allocation of work by a Digital Work System used in the workplace. |
As part of this further duty, PCBUs are required to consider whether the use of a Digital Work System to allocate work creates or results in any of the following risks:
Excessive or unreasonable workloads;
The use of excessive or unreasonable metrics to assess and track the performance of workers;
Excessive or unreasonable monitoring or surveillance of workers; or
Unlawful discriminatory practices or decision-making in the conduct of the business or undertaking.
The Government has indicated that these changes will ensure that there is a proper risk assessment and that appropriate controls are in place to mitigate any drivers of physical and psychological harm arising from Digital Work Systems.
Expanded Right of Entry Framework
Whilst existing WHS laws already allow inspectors, unions and other authorised permit holders to enter a workplace to investigate potential breaches of the WHS Act, the Amendment broadens these powers and will require PCBUs to provide permit holders with “reasonable assistance to access and inspect a digital work system relevant to a suspected contravention”. The fines for a failure to comply with this requirement are significant.
Although the Amendment expands the powers of union representatives, creating greater avenues for right of entry, safeguards are in place for regulation. For example, the power to “access and inspect” may only be exercised if the permit holder has given the relevant person notice of the proposed entry at least 48 hours’ before.
These proposed new rights can also only be exercised once guidelines on the right of entry have been published by SafeWork NSW, following public consultation. Businesses should therefore keep informed about these guidelines and be ready to develop an access protocol for permit holder requests and train IT and HR departments on compliance.
Review of Amendments
12 Month Review: The Minister will review the operation of the Amendment in 12 months’ time to assess whether the changes are achieving the policy objectives intended.
Federal Changes: The Amendment also must be reviewed if the Model WHS Act is amended Federally to deal with the same subject matter. This could happen if other States or Territories decide to adopt similar changes to their respective WHS legislation to mirror the Amendment.
What Should Your Business Do Now?
With these amendments in place, PCBUs should take this opportunity to review the new duties relating to Digital Work Systems. Businesses should be considering (by way of risk assessment or like process):
What Digital Work Systems are in place and how they are used, in preparation for potentially increased scrutiny from regulators and unions under the new provisions;
How much their business relies on Digital Work Systems. Most employers use far more digital systems than they realise, and should identify any AI-driven or automated processes used in the workplace;
The impact that Digital Work Systems could have on their employees (i.e. as an example, consider whether metrics or KPIs generated by these Digital Work Systems are reasonable and assess whether these systems’ logic could create biased or discriminatory outcomes); and
How compliance with the new obligations will impact their business. WHS risk assessments will now need to cover off on any Digital Work Systems that are in use.
The Amendment makes it clear that digital technology is now considered part of the “work and environment” for WHS purposes. Although AI‑related risks have always fallen within the scope of existing WHS obligations, the Amendment is seen as a necessary step in modernising the legislation to reflect the rapidly expanding use of AI across workplaces.
This is therefore a good opportunity for businesses to review and responsibly implement Digital Work Systems with workers’ health and safety at the forefront of their mind.
CCCL will be monitoring the consultation process and any publication of the guidelines by SafeWork NSW.
