NSW Regulates WHS Risks arising from Digital Work Systems

The NSW Parliament passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2025 (NSW) on 12 February 2026. In doing so, NSW has become the first state or territory in Australia to regulate digital work systems in WHS laws.

A Response to Modern Workplace Risks

The reforms reflect increasing concern about the effect of automated and algorithmic decision‑making on workers’ wellbeing. As noted by the Minister for Work Health and Safety, the Hon Sophie Cotsis MP, the Bill responds to the growing “need for work health and safety reforms to address work intensification, unfair or unsafe allocation of work, and the psychosocial risks associated with automated decision‑making and the use of artificial intelligence.”

Minister Cotsis further emphasised that accountability must remain with human decision‑makers, stating, “If PCBU’s delegate tasks to an algorithm which creates harm, the bill clarifies that managers are responsible for the human impact.”

A New Duty of Care for Digital Work Systems

Central to the reforms is the insertion of Section 19(3)(c) into the Work Health and Safety Act 2011 (NSW) (WHS Act), which creates a primary duty of care to ensure the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking. Under section 4 of the WHS Act, a “digital work system” will be defined as “an algorithm, artificial intelligence, automation or online platform”.

Under the new section 21A, a person conducting a business or undertaking must  ensure, so far as is reasonably practicable, that workers’ health and safety is not put at risk by a “digital work system”.  In practical terms, employers must now take reasonable steps to evaluate whether their digital systems creates or results in any of the following risks:

1. excessive or unreasonable workloads for workers;
2. the use of excessive or unreasonable metrics to assess and track the performance of workers;
3. excessive or unreasonable monitoring or surveillance of workers; and/or
4. unlawful discriminatory practices or decision-making.

Strengthened Rights for WHS Entry Permit Holders

The Bill also introduced new requirements for cooperation by employers during WHS investigations connected to digital systems. Under the new section 118(1)(a1), the relevant person conducting a business or undertaking must now provide “reasonable assistance” to WHS entry permit holders to “access and inspect a digital work system relevant to the suspected contraventions”.

To exercise these powers, WHS entry permit holders must give businesses with at notice that least 48 hours before exercising the power under section 118(1)(a1) of the WHS Act.

What Employers Should Do Now

1. Conduct a risk assessment to determine whether digital work systems may result in any risks to their workers’ health and safety.
2. Take any reasonably practicable steps to eliminate or minimise any risk identified.
3. Note the new obligation to provide reasonable assistance to enable a WHS entry permit holder to access and inspect a digital work system relevant to a suspected breach.

Please contact Principal Tim McDonald if you need assistance dealing with any matter relating to the above.

Contributors

• Pippa Day, Law Graduate