A new NSW law passed in February 2026 extends your work health and safety obligations to cover the digital systems you use to allocate, monitor and assess work. If your business uses workforce scheduling software, AI-driven task allocation, automated performance tracking or similar tools, this law is relevant to you.
It is not yet in force. But the period before commencement is the right time to understand what is coming and get your house in order.
What is the Work Health and Safety Amendment (Digital Work Systems) Act 2026?
The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) received assent on 18 February 2026. It amends the Work Health and Safety Act 2011 (NSW) to bring digital work systems within the existing WHS framework.
A digital work system is defined in the Act as an algorithm, artificial intelligence, automation or online platform. That is a deliberately broad definition. It captures far more than cutting-edge AI tools. Workforce rostering software, automated performance dashboards and gig-platform dispatch systems all fall within scope.
| The WHS duty of care now explicitly covers the digital systems your business uses to allocate, monitor and assess work. This is not a separate compliance regime. It sits within your existing primary duty under the Work Health and Safety Act 2011 (NSW). |
What will employers be required to do?
Once the relevant provisions commence, you will be required 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 used in your business.
Specifically, you will need to consider whether your systems create or result in any of the following:
- Excessive or unreasonable workloads for workers
- 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 standard is ‘so far as is reasonably practicable’, which is the same standard that applies across all WHS duties in NSW. It does not require zero risk. It requires you to do what is reasonably practicable to eliminate or minimise risk, having regard to what you know and the cost and practicability of action.
What about union right-of-entry to inspect digital systems?
The Act also introduces a new right for WHS entry permit holders to inspect digital work systems relevant to a suspected contravention of the Act. This is a significant addition. Under current WHS laws, union officials can enter a workplace to investigate suspected breaches. The new provisions extend that right to inspecting the digital systems themselves.
Key procedural requirements apply. Notice of at least 48 hours, but no more than 14 days, must be given before entry. The business is not required to assist if doing so would contravene another law. Failure to comply carries a penalty of up to 121 penalty units for an individual and 607 penalty units for a body corporate, which at the current NSW rate of $110 per penalty unit equates to $13,310 and $66,770 respectively.
Is it in force now?
No. The core employer obligations and right-of-entry provisions have not commenced.
The Act is structured so that these provisions cannot commence until at least one month after SafeWork NSW publishes guidelines under new section 118A. Those guidelines are still being developed and SafeWork NSW is required to publicly consult before they are finalised.
Only the provisions requiring SafeWork NSW to develop those guidelines commenced on assent. This was deliberate. Parliament used the guidelines requirement as a brake to ensure SafeWork NSW consults industry before any employer is exposed to the new obligations or inspection powers.
| The guidelines are not yet published. Watch for SafeWork NSW’s public consultation notice. When it is released, consider making a submission. The guidelines will directly shape how these obligations work in practice. |
What should NSW employers be doing now?
The window before commencement is the right time to prepare rather than react. Here is where to start.
Identify your digital work systems
Map every digital tool your business uses to allocate, schedule, monitor, or assess work. Include third-party platforms, not just systems you built or own. The WHS duty sits with you as the person conducting a business or undertaking, regardless of who developed the technology.
Assess the risks
For each system, consider whether it could be creating excessive workloads, unreasonable monitoring, unfair performance metrics, or discriminatory outcomes for your workers. You do not need to wait for the guidelines to do this. Risk assessment is already part of your existing WHS obligations.
Document what you are doing
Start building a record of your risk assessment process now. When the laws commence, you will be in a far stronger position if you can demonstrate that you turned your mind to these issues before being required to.
Review your vendor contracts
If a third-party supplier provides your workforce management or performance tracking software, review what your contract says about data, monitoring and decision-making. Understand how the system works and what outputs it produces. You cannot discharge your WHS duty by pointing to a vendor agreement.
Watch for the SafeWork NSW consultation
Subscribe to SafeWork NSW updates so you are notified when the section 118A guidelines are released for consultation. The guidelines will define how the inspection rights work in practice and may also provide guidance on what constitutes compliance with the employer duty. Your input during consultation could shape how the laws apply to your industry.
What if you use AI or automated tools in HR specifically?
HR-specific digital tools, including automated shortlisting platforms, AI-assisted performance review tools and workforce analytics dashboards, fall squarely within scope if they affect how work is allocated or assessed. This is worth noting given the rapid uptake of AI-assisted HR technology across Australian businesses.
The discriminatory decision-making risk is particularly relevant here. Automated tools that use historical data to make recommendations can embed and amplify existing biases. Employers will need to be able to demonstrate that they have considered this risk and have processes to identify and address it.
| Need help reviewing your HR systems and WHS practices? The HR Impact works with NSW businesses to assess people risk, review compliance practices and prepare for legislative change. If you want support getting ready for these laws, get in touch for a conversation. |