Key Takeaways
- The NSW Parliament has passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2026. This is the first time that digital work systems have been directly addressed in Australian WHS Law.
- The reforms will largely commence on a yet-to-be-announced date or dates, to be appointed by proclamation.
- Digital work system is defined broadly under the reform as “an algorithm, artificial intelligence, automation or online platform“.
- The reforms, once commenced, will introduce a new s 21A duty to the Work Health and Safety Act 2011 (NSW) requiring PCBUs to ensure worker health and safety is not put at risk from the allocation of work by digital work systems. The reforms also specifically address WHS Entry Permit Powers in relation to Digital Work Systems.
- We recommend closely reviewing existing digital work systems and considering any risks arising from the allocation of work using digital work systems.
On 12 February 2026, the NSW Parliament passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (Digital Duty Bill), representing a shift in how technology is regulated under Work Health and Safety (WHS) Law. The Digital Duty Bill is the first time that digital work systems used to allocate work are targeted by specific WHS duties in Australia.
The reforms are responding to recent reports of abuse related to artificial intelligence and digital work systems, especially in the gig economy. These reports claim that companies have been using these technologies to allocate work excessively or to favour workers who are on longer shifts. The wording of the reforms does not target a specific sector and applies to all persons conducting a business or undertaking (PCBUs).
What this means for you
The passing of the Digital Duty Bill ushers in a new phase of safety regulations, as governments, regulators and stakeholders struggle to keep up with emerging digital technologies that are changing how work is allocated, monitored and rewarded. While risks associated with digital work systems have always been captured by the primary duty of the WHS Act, the reform provides greater focus and attention to the risks arising from their implementation.
While the reforms have not yet taken effect, we recommend taking this time to review any digital work systems currently in place for allocating work and developing processes to manage the likely increased regulatory and union interest in this area.
This could involve conducting a safety impact assessment of currently implemented and any proposed digital work systems, such as workforce management software, performance monitoring tools, rostering systems, productivity tracking applications, and AI-driven decision-making platforms. This assessment should focus on the four risk categories identified in the Digital Duty Bill: workload allocation, performance metrics, surveillance and monitoring, and discrimination.
Finally, it is also likely that the passage of the Digital Duty Bill will start a broader process of debate and law reform in other jurisdictions. We will continue to closely monitor this space.
History
The adoption of digital work systems to manage the allocation of work has been the subject of attention by legislators, unions and academics for some time now.
Overseas, companies have faced scrutiny by regulators for excessive surveillance of their workers. In late 2023, Amazon was fined €32,000,000 in France for “excessive” surveillance of its workers. In this matter, breaches of the European Union’s (EU) General Data Protection Regulation were found, including a system that monitored employee activity and generated alerts relating to the speed of workers completing tasks, along with break times.[1]
In 2024, the EU passed the Platform Work Directive (EU Directive 2024/2831 on Improving Working Conditions in Platform Work). The Platform Work Directive requires digital labour platforms to:[2]
- evaluate the risks of automated monitoring systems and automated decision-making systems to their safety and health, in particular as regards possible risks of work-related accidents, psychosocial and ergonomic risks;
- assess whether the safeguards of those systems are appropriate for the risks identified in view of the specific characteristics of the work environment;
- introduce appropriate preventive and protective measures.
The Digital Duty Bill’s origin in NSW can be traced back to the Legislative Council’s Select Committee on the Impact of Technological and Other Change on the Future of Work and Workers in New South Wales Final Report, released in 2022, which found that:
“[The] committee considers that work health and safety laws should reflect the uptake of automated processes in workplaces, particularly where those technologies are being used to allocate work. We recommend that the government consider amending work health and safety laws to regulate the allocation of work via software/platforms/code/algorithms/apps to ensure worker safety, appropriate workloads, compliance with industrial instruments, non-discriminatory practices, and a fair and equitable distribution of work”[3]
The first digital duty proposed in legislation before the NSW Parliament was an amendment proposed by the NSW Greens on 25 June 2025 in the Legislative Council to the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025, which was unsuccessfully moved.
Following the defeat of the Greens Bill, on 5 August 2025, the NSW Government subsequently included a proposed duty on PCBUs involving digital work systems in the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (Workers Compensation Bill). Under this Bill, a more streamlined version of the Greens Bill’s duty was proposed, and “digital work system” was defined as “means an algorithm, artificial intelligence, automation, online platform or software”. This Workers Compensation Bill was ultimately amended to remove the provisions proposing a digital work system duty.
On 19 November 2025, the standalone Digital Duty Bill was introduced to the Legislative Assembly. Of note, the definition of “digital work system” was slightly amended from the Workers Compensation Bill definition, by removing ‘software’ and also limiting the scope of the new duty under s 21A to ‘workers’ rather than ‘any person’. In the second reading speech for the Digital Duty Bill, Minister Sophie Cotsis explained that:
“As digital systems increasingly shape how work is organised, these risks cannot be left unexamined or unmanaged. This proposed duty reflects the reality that harm does not arise from the technology itself but from how digital work systems are designed, deployed and managed in practice. The amendment ensures that PCBUs take active steps to ensure that digital work systems are implemented safely and responsibly, with worker protection front of mind. This is not about stifling innovation. This does not limit or restrict the digital work systems that a PCBU can implement. This duty requires the PCBU to consider the potential impacts of the digital work system on its workers and ensure there is a proper risk assessment and appropriate controls in place to protect worker health and safety as far as reasonably practicable.”
As stated above, the Digital Duty Bill marks the first time that a specific duty of care targeting digital work systems has been adopted in Australia.
Digital Duty Bill in focus
We set out below the key reforms that the Digital Duty Bill will introduce:
New Digital Work System Duty
The Digital Duty Bill will introduce a new duty into s 21A of the Work Health and Safety Act 2011 (NSW) (WHS Act), requiring a PCBU to ensure that the health and safety of workers is not put at risk by the business or undertaking’s use of digital work systems.
The Digital Duty Bill defines a “digital work system” as “an algorithm, artificial intelligence, automation or online platform“.
The new digital work system duty under s 21A sets out considerations for PCBUs allocating work using digital work systems, including:
- Excessive or unreasonable workloads – excessive or unreasonable workloads for workers at work in the business or undertaking;
- Excessive or unreasonable performance metrics – the use of excessive or unreasonable metrics to assess and track the performance of workers at work in the business or undertaking;
- Excessive or unreasonable monitoring and surveillance – excessive or unreasonable monitoring or surveillance of workers at work in the business or undertaking; and
- Discrimination – unlawful discriminatory practices or decision-making in the conduct of the business or undertaking.
As with other WHS duties, such as the Primary Duty under s 19 of the WHS Act, a breach of the Digital Work System Duty will expose PCBUs to liability under the WHS Act. This includes a maximum monetary penalty of $11,150,183 for category 1 breaches of WHS duties by a PCBU.
The Digital Duty Bill also adds to the Primary Duty under the WHS Act, adding to the (non-exhaustive) list of matters that a PCBU must ensure, so far as is reasonably practicable, to include that “the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking”.
WHS Entry Permit powers
Section 118(1)(a1) allows a WHS Entry Permit holder to require the relevant person conducting a business or undertaking to provide the WHS entry permit holder with reasonable assistance to access and inspect a digital work system relevant to a suspected contravention of the WHS Act.
The Digital Duty Bill also inserts a new s 118(2A) stating that the WHS Entry Permit holder’s power to require reasonable assistance is subject to guidelines made by the regulator under section 118A of the WHS Act. The new duty of care, which commences on proclamation, is likely to commence once the guidelines have been published. Treasurer Daniel Mookhey, in the Legislative Council Second Reading speech, noted that:
“[G]uidelines developed by the safety regulator on the requirement to provide reasonable access to information or records related to the suspected contravention. Permit holders cannot go on a fishing expedition through a work system; it has to be relevant to the suspected contravention. The regulator will publicly consult on what those guidelines will look like.”
A note has also been added to s 117, the section of the WHS Act that provides the right of entry power, to clarify that at least 48 hours, but no more than 14 days, notice must be given if a WHS entry permit holder proposes to exercise the power under s 118(1)(a1) of the WHS Act.
As with the exercise of WHS Entry Permit powers generally, if there is a dispute surrounding the use of the WHS Entry Permit powers, there are dispute resolution provisions under Part 5 of the WHS Act. This includes seeking a non-binding resolution from a SafeWork NSW inspector or seeking a binding resolution to the dispute from the Industrial Relations Commission.
Review provisions
The Digital Duty Bill includes a provision requiring that if the Minister for Work Health and Safety is satisfied the Model WHS Laws developed by Safe Work Australia deal substantially with the same subject matter as the digital work system duty, the Minister must review the provision to determine a number of factors, including whether the policy objective of the digital work system duty remains valid, the terms remain appropriate, whether the Model WHS laws offer a higher standard of health and safety for workers, and whether the digital duty provisions are appropriate, having regard to the Model WHS Laws.
The Model WHS Laws are a set of legislation developed and maintained by Safe Work Australia. It is not binding, but provides guidance for a nationally consistent approach to WHS Law. To become legally binding, the Commonwealth, states and territories must separately implement them as their own laws.
There is also a further provision under s 276E of the WHS Act, requiring the WHS Minister to conduct a review of the amendments proposed under the Digital Duty Bill 12 months from the commencement of s 276E. A report must then be issued to Parliament within 18 months of the commencement of the section.
Commencement
The Digital Duty Bill received assent on 18 February 2026.
The provisions requiring SafeWork NSW to create guidelines on reasonable assistance took effect on assent. The balance of the Digital Duty Bill will commence on a day or days to be appointed by proclamation. These dates have not yet been announced.
The Digital Duty Bill also includes an amendment to the WHS Act Schedule clarifying that, despite the commencement of provisions relating to WHS Entry Permit powers under s 118(1)(a1), those powers can only be exercised if the guidelines on reasonable assistance have been published by SafeWork NSW.
Hamilton Locke’s Workplace and Safety team is ready to assist with any questions you might have regarding these unprecedented reforms.
[1] Sam Gruet, ‘Amazon fined for ‘excessive’ surveillance of workers’, BBC (online, 24 January 2024) <https://www.bbc.com/news/business-68067022>.
[2] EU Directive 2024/2831 on Improving Working Conditions in Platform Work, Article 12.
[3] Legislative Council of New South Wales, Select Committee on the Impact of Technological and Other Change on the Future of Work and Workers in New South Wales, Final Report (Report 2), p 44.
