Employers need to be aware of the Digital Work Systems and the New WHS Risk for Employers
Artificial intelligence (AI), automation and digital management tools may improve productivity, but in NSW they can now also create WHS exposure. The new Work Health and Safety Amendment (Digital Work Systems) Act 2026, passed by the NSW Parliament on 12 February 2026, puts employers on notice that when algorithms shape workloads, rostering, performance management or workplace surveillance, they may be sources of health and safety risk.
What is a ‘digital work system’?
Despite the focus on AI, the Act broadly defines a “digital work system” to be an algorithm, AI, automation or online platform. It also inserts an express addition to the primary duty of care so that a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, that workers’ health and safety are not put at risk from the use of digital work systems.
The new provision requires a PCBU to consider whether work allocated by or using digital work systems creates or results in risks such as:
• excessive or unreasonable workloads,
• the use of excessive or unreasonable metrics to assess and track performance of workers,
• excessive or unreasonable monitoring or surveillance of workers, and
• unlawful discrimination practices or decision-making in the conduct of the business or undertaking
Expanded Access Powers for WHS Entry Permit Holders
The Act also extends the powers of WHS entry permit holders. Where a permit holder is investigating a suspected contravention, they may require the relevant PCBU to provide reasonable assistance to access and inspect a digital work system relevant to the suspected breach. This is a notable development for employers using proprietary or sensitive digital systems to manage work. The power is not unlimited. The legislation builds in several safeguards. The permit holder must give notice of the proposed entry at least 48 hours and no more than 14 days beforehand. The power is also subject to guidelines to be issued by the regulator and those guidelines must be publicly consulted on before they are issued. The Act’s transitional provisions make clear that even after commencement, the power cannot be exercised unless these relevant guidelines have been published. We will provide an update to this article when the guidelines have been issued.
Employers should also be alert to the penalty exposure. The existing penalty framework extends to the requirement to provide reasonable assistance to access and inspect a digital work system. The failure or refusal to comply attracts a maximum penalty of 121 penalty units for individuals and 607 penalty units for a body corporate.
Key Takeaways
Although the core duty provisions are not yet operative, employers should start preparing now. Businesses that use AI, automated rostering, productivity monitoring, performance metrics or other digital management tools should review whether those systems could create WHS risks through workload intensity, intrusive surveillance, unreasonable performance expectations or discriminatory outcomes.
A prudent first step is to identify which digital systems are being used across the business, how they interact with the new WHS laws, and whether your existing WHS policies and risk controls adequately address them. An early review will place employers in a stronger position once the substantive provisions commence and regulatory guidance is issued.
This article is general in nature and is not legal advice. If you need help with updating your workplace contracts, procedures and policies or another employment law matter, Voice Lawyers can assist you.
We help people navigate the complexities of the Fair Work Act and workplace laws with confident, practical advice. You can contact us at office@voicelawyers.com, or give us a call at 02 9261 1954 or use the link on our website to book a consultation to speak with one of our lawyers.