Australia: Use of AI and automation in the workplace to be regulated in NSW under further WHS reforms

On 13 February 2026, the NSW Parliament passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (Digital Work Systems Bill). The Digital Work Systems Bill is amongst a raft of recent amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act) which will take effect from a date to be proclaimed.

The Digital Work Systems Bill introduces new duties on persons conducting a business or undertaking (PCBUs) to the WHS Act concerning the use of ‘digital work systems’ (meaning, algorithms, artificial intelligence, automation and online platforms), and provides for expanded rights for WHS permit holders accessing a workplace. 

The Minister will review the appropriateness and operation of the new laws after 12 months and consider any new duties arising from amendments to the national model WHS Act, aligning NSW duties where the model law provides an equivalent or higher level of worker safety.

These changes follow earlier significant reforms to the NSW workers compensation scheme, which passed parliament in November 2025 and February 2026. See link to our related article here.

Duties of PCBUs involving digital work systems

The Digital Work Systems Bill introduces a new section 19(3)(c) primary duty of care in the WHS Act, which provides that a PCBU must ensure so far as is reasonably practicable, the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking. This obligation extends to any use of the ‘digital work systems’.

The Digital Work Systems Bill also introduces a new section 21A in the WHS Act, which mandates that PCBUs using digital work systems must, as far as reasonably practicable, ensure these systems allocate work without causing health and safety risks. Without limiting this general obligation, the PCBU must also consider whether the allocation of work by or through a digital work system creates or results in any of the following risks for workers at work:

• excessive or unreasonable workloads;
• the use of excessive or unreasonable metrics to assess and track worker performance;
• excessive or unreasonable monitoring or surveillance; or
• discriminatory practices or decision-making.

In addition to introducing these new duties, the Digital Work Systems Bill confirms that PCBU’s will need to consider the risks of unlawful discrimination when using technologies captured by the new duty.

Rights that may be exercised while at workplace

The Digital Work Systems Bill also expands the rights of WHS entry permit holders under s 118 of the WHS Act, requiring PCBUs to assist entry permit holders to access and inspect digital work systems when investigating suspected legal breaches of the WHS Act. 

In her Second Reading Speech, Sophie Cotsis explained that examples of inspectable items include “code or algorithms, performance metrics, records, data logs, and audit trails generated by digital systems”.

While these expanded rights of access for WHS entry permit holder are likely to cause additional burden for businesses, the Digital Work Systems Bill as passed does provide some guardrails to prevent unfettered access. Specifically the amendments provide that: 

• unions will need to give a business at least 48 hours (and no more than 14 days’) notice before requiring access to a digital work system for inspection and businesses will be required to give unions reasonable assistance when accessing and inspecting digital work systems relevant to a suspected contravention; 
• SafeWork NSW must publish guidelines about the power of unions to require PCBUs to provide reasonable assistance to access and inspect digital work systems, and requiring SafeWork NSW to conduct public consultation and consider stakeholder feedback prior to publishing the guidelines;
• disputes related to the right of entry related to the digital work systems duty may be referred to the Industrial Relations Commission under s 142 of the WHS Act for mediation, conciliation, or arbitration.

Key takeaways

Given the broad scope of the digital work systems duty, businesses should review their right of entry processes in light of the upcoming changes (including to incorporate the guidance on what providing ‘reasonable assistance’ to a right of entry permit holder is once the guidance is published) and ensure that any digital transformation program planning within the organisation considers the digital work systems duty. 

Interest in the use of technology is only increasing, particularly as it relates to workplace transformation programs and workplace surveillance disputes. Business should be prepared for both union activity and regulatory investigations in relation to their digital work systems. 

Next steps

The Digital Work Systems Bill will come into effect on proclamation, however the right of entry provisions will not commence until one month after the day that SafeWork NSW publishes the guidelines referred to above. This means that, while the new duties imposed under these reforms will likely take effect in short course, there will likely be a delay before the right of entry provisions commence, given the nature of the public consultation required to be undertaken and considered by SafeWork NSW.