Artificial intelligence (AI) is now part of the vernacular in the modern workplace. Programs such as ChatGPT, Claude, and Perplexity have profoundly changed the way employees perform their roles in the workplace. 

And it is not just employees who are utilising AI in their everyday tasks. Employers are utilising AI systems in rostering, monitoring employee movement and activity, HR tools, and performance management processes, to name a few. 

On 12 February 2026, New South Wales became the first Australian jurisdiction to legislate regarding the work health and safety risks associated with AI and other “digital work systems”, through the introduction of the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (NSW) (Bill), which amends the existing Work Health and Safety Act 2011 (NSW) (WHS Act). The Bill was assented to on 18 February 2026, with the commencement of the WHS Act to take place on a day or days to be appointed by proclamation.  

Primary Duty Under the WHS Act

Section 19(1) of the WHS Act comprises an employer’s primary duty of care to workers, and requires that a person conducting a business or undertaking (PCBU) must ensure, so far as is reasonably practicable, the health and safety of workers. Most NSW employers are a PCBU, and a worker is anyone carrying out work in any capacity for the employer, including its employees. 

The Bill builds upon the primary duty through the addition of a new section 19(3)(c1), which sets out that: 

“a person conducting a business or undertaking 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.”

In addition to section 19(3)(c1), a new section 21A states that: 

1. A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of a worker is not put at risk from the allocation of work by a digital work system used by the business or undertaking. 
2. A person conducting a business or undertaking must consider whether the allocation of work by or using a digital work system creates or results in any of the following risks: 
   • excessive or unreasonable workloads for workers at work in the business or undertaking; 
   • 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 or surveillance of workers at work in the business or undertaking; 
   • discriminatory practices or decision-making in the conduct of the business or undertaking. 

Digital work systems

A digital work system has been broadly defined under these reforms as “an algorithm, artificial intelligence, automation or online platform”. 

It is important to note that the new sections 19(3)(c1) and 21A do not confer any requirements upon PCBUs that are “new”. The WHS Act has always required PCBUs to ensure, so far as is reasonably practicable, the health and safety of workers. What is new here is that the legislation specifically singles out digital work systems, which may pose psychosocial risks in the workplace, and specifies what a PCBU must consider when managing those risks. Accordingly, a NSW employer that engages workers and utilises AI or other digital work systems must now manage the psychosocial risks associated with those systems. 

WHS Entry Permit Holders 

The Bill also allows greater rights of access for WHS entry permit holders when it comes to digital work systems. Currently, WHS entry permit holders (such as union representatives) can access a workplace where there is a suspected breach of the WHS Act. The Bill, however, expands these entry rights to allow permit holders to access and inspect digital work systems utilised by an employer where there is a suspected breach of the WHS Act. 

With regard to the use of digital work systems to allocate work, it is expected that WHS entry permit holders and SafeWork NSW will actively monitor whether employers have complied with the considerations in section 21A(2). 

What NSW Employers Need to Do

In light of these changes, businesses should conduct a risk assessment to:

1. Identify the digital work systems currently being used across the organisation or that are intended to be implemented; 
2. Assess the psychosocial risks posed by the digital work systems;
3. Implement control measures to eliminate the risks, or if that is not reasonably practicable, minimise those risks; and
4. Proactively implement, maintain, monitor and review the effectiveness of the control measures. 

Control measures should involve an update of safety management systems, including training of workers. 

Please reach out to the team at WilliamsonBarwick should you require any assistance as we would be happy to help.