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NSW passed the Work Health and Safety Amendment (Digital Work Systems) Act 2026 on 12 February 2026. It received Royal Assent on 18 February 2026 and is now Act No 5 of 2026. Introduced by Sophie Cotsis and championed in the Legislative Council by Daniel Mookhey, this Act amends the Work Health and Safety Act 2011 (NSW) to create specific obligations around digital work systems in the workplace.
At HSE Direct, we will say it plainly: we do not believe this Act achieves anything that existing law did not already cover. The four risk categories this Act targets – excessive workloads, excessive performance metrics, surveillance of workers, and unlawful discriminatory decision-making – are already regulated under the WHS Regulation 2025 (psychosocial hazards framework), the Workplace Surveillance Act 2005 (NSW), the Anti-Discrimination Act 1977 (NSW), the Privacy Act 1988 (Cth), and the Fair Work Act 2009 (Cth).
What this Act does is add another category on your risk register, another round of documented assessments, more policy updates, and another union right of entry mechanism into your workplace. All for risks that competent businesses were already required to manage under existing law.
NSW has also done this without any national model law to support it. Safe Work Australia has not produced model WHS laws on digital work systems. That means NSW is now operating outside the harmonised framework – the framework that exists to keep compliance consistent across every Australian jurisdiction. This directly undermines harmonisation and places NSW businesses at a disadvantage compared to other states that have not introduced equivalent obligations. The Act even contains a review clause (s.276D) requiring the Minister to revisit these provisions once Safe Work Australia does produce national model laws on the same subject. That is policy made ahead of the evidence base, not after it.
We are not saying AI and automation are irrelevant to workplace safety. They are not. But the right response is a national, evidence-driven approach through Safe Work Australia – not a standalone NSW amendment that layers new paperwork obligations onto businesses for problems that existing law already addresses.
What Are Digital Work Systems Under This Act?
Under the Act, a digital work system is defined as:
an algorithm, artificial intelligence, automation or online platform.
That definition is intentionally broad. It captures nearly every software tool used to manage, schedule, monitor, or assess workers. Workforce management platforms, GPS tracking tools, AI-assisted rostering systems, HR performance dashboards, task allocation apps, keylogger or screen monitoring software – all of it falls within scope.
If your business uses any of these tools to direct or monitor workers, this Act applies to you once it fully commences.
Read the full text of the passed bill and the schedule of amendments on the NSW Parliament website.
Where Does the Act Stand Right Now?
The Act has received Royal Assent but most operative provisions have not yet commenced. Commencement requires a proclamation, and that proclamation cannot be made any earlier than one month after SafeWork NSW publishes its first guidelines under new section 118A. Those guidelines have not yet been drafted or published. Public consultation is required before they are released.
| Provision | Status |
| Definition of “digital work system” – s.4 | Awaiting proclamation |
| Extended primary duty of care – s.19 | Awaiting proclamation |
| New standalone PCBU duty – s.21A | Awaiting proclamation |
| Union right to access and inspect digital work systems – s.118(1)(a1) | Commenced on assent but cannot be exercised until SafeWork NSW publishes s.118A guidelines |
| SafeWork NSW obligation to publish guidelines – s.118A | Commenced on assent |
| Ministerial review provisions – s.276D and s.276E | Commenced on assent |
The full suite of employer obligations is not yet active. But the groundwork for enforcement is already in place, and once guidelines are published, commencement can follow within one month.
What Employers Must Do When the Act Commences
Under new section 21A, every person conducting a business or undertaking (PCBU) must:
- 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 any digital work system the business uses.
- Actively consider whether digital work systems create or result in any of the following:
- Excessive or unreasonable workloads for workers
- Excessive or unreasonable performance metrics used to assess and track workers
- Excessive or unreasonable monitoring or surveillance of workers
- Unlawful discriminatory practices or decision-making
This is not a passive obligation. The Act requires PCBUs to actively consider these risks. That means documented assessments, recorded controls, and evidence of consultation with workers. Verbal consideration is not enough.
For support building compliant WHS documentation, visit our WHS consulting services or contact HSE Direct directly.
WHS Manager: Digital Work Systems Compliance Checklist
Step 1 – Identify Your Digital Work Systems
- List all software platforms used to allocate, schedule, or direct workers
- List all tools used to monitor worker performance, output, location, or activity
- List any AI-assisted decision-making tools used in rostering, HR, or performance reviews
- Confirm whether any online platforms collect or process data about individual workers
- Include contractor management software and external platforms used to direct work
Step 2 – Conduct and Document a Risk Assessment
- Assess each identified system against the four risk categories in s.21A
- Add a “Digital Work Systems” category or column to your existing risk register
- Consult workers or health and safety representatives as part of the assessment
- Identify and document controls for any identified risks (e.g. human override requirements, workload thresholds, monitoring limits, anti-discrimination audits)
- Cross-reference findings against your existing psychosocial hazards assessment
Step 3 – Update WHS Documentation
- Update your WHS Policy to reference digital work system obligations
- Review and update your Hazard and Risk Register
- Review your psychosocial hazards documentation – s.21A risks overlap significantly with the psychosocial hazards framework already in the WHS Regulation 2025
- Ensure all assessment records are date-stamped and stored
Step 4 – Prepare for Union Right of Entry
- Identify which digital work systems a union official could request access to under s.118(1)(a1)
- Note the notice requirement: union officials must give at least 48 hours notice and no more than 14 days notice before exercising this power
- Designate a responsible person to manage WHS entry requests relating to digital systems
- Monitor the SafeWork NSW website for publication of s.118A guidelines – the right of entry power cannot be exercised until those guidelines are published
Compliance Manager Reference Table
| Obligation | Legal Source | Required Action | Current Status |
| Extend primary duty to cover digital work systems | WHS Act 2011 s.19 (amended) | Review and update primary duty documentation and WHS policy | Not yet commenced |
| Actively assess digital work system risks | WHS Act 2011 s.21A (new) | Conduct and document a formal risk assessment | Not yet commenced |
| Assess for excessive workloads from digital systems | s.21A(2)(a) | Review platform settings, document workload thresholds and controls | Not yet commenced |
| Assess for excessive performance metrics | s.21A(2)(b) | Audit KPI and performance tracking tool settings, assess against reasonableness | Not yet commenced |
| Assess monitoring and surveillance | s.21A(2)(c) | Review all worker monitoring tools against WHS and Surveillance Act obligations | Not yet commenced |
| Assess for unlawful discrimination | s.21A(2)(d) | Audit AI-assisted HR and decision-making tools for discriminatory outcomes | Not yet commenced |
| Facilitate union inspection of digital systems (with notice and guidelines) | WHS Act 2011 s.118 (amended) | Identify relevant systems, brief responsible persons, monitor SafeWork NSW for guidelines | Active on assent – exercise of power pending guidelines |
Our Position: Existing Law Already Covered This
The WHS Regulation 2025 already requires PCBUs to identify and manage psychosocial hazards. Unreasonable workloads, excessive monitoring, and performance pressure are explicitly listed psychosocial hazards under that framework. Businesses were already required to assess and control them.
The Workplace Surveillance Act 2005 (NSW) already governs computer, camera, and tracking-based surveillance of workers. The Anti-Discrimination Act 1977 (NSW) and Fair Work Act 2009 already prohibit unlawful discrimination and adverse action in employment. Every single risk category listed in new s.21A existed as a legal obligation before this Act was passed.
The result is that businesses, particularly small and medium operators without in-house WHS teams, now face an additional layer of documentation, an additional right of union entry, and the prospect of SafeWork NSW inspectors asking specifically about digital work system risk assessments – on top of all existing obligations. The compliance burden is real. The additional safety uplift is not clear.
When Safe Work Australia eventually produces national model laws on digital work systems, NSW will then need to review and potentially re-amend to realign. Section 276D of the Act already anticipates this. That alone tells you this legislation was premature.
What to Do Now
Even if you share our view that this Act adds more paperwork than it adds protection, the obligations will be enforceable once the Act commences. Non-compliance will carry the same consequences as any other WHS breach.
Start your digital work systems risk assessment now. Update your risk register and WHS policy before the proclamation date is announced. Do not wait for SafeWork NSW to come knocking.
For help building a digital work systems compliance framework, updating your WHS management system, or running a gap analysis against the new obligations, get in touch with HSE Direct.
Follow us on Instagram @hse_direct for ongoing WHS updates across NSW and nationally.
Full parliamentary documents including the passed bill text and schedule of amendments are available on the NSW Parliament website.