The NSW Parliament has narrowly passed the Work Health and Safety Amendment (Digital Work Systems) Bill 2025, introducing the most significant update to the State’s WHS framework in more than a decade. The reforms, an Australian first, respond to the rapid expansion of AI‑enabled management tools, algorithmic scheduling, digital surveillance technologies and automated decision‑making systems that increasingly shape contemporary work.
For employers, the Bill establishes a new regulatory environment in which digital systems fall squarely within the scope of WHS duties. It also significantly broadens the circumstances in which regulators and WHS entry permit holders may scrutinise those systems.
Key features of the Bill
The Bill introduces a new “Digital Work System Duty”, requiring persons conducting a business or undertaking (PCBUs) to ensure, so far as is reasonably practicable, that the health and safety of workers is not put at risk by the allocation of work through a digital work system used by the business or undertaking.
Digital work system is defined broadly as an algorithm, artificial intelligence, automation or online platform.
The duty captures risks arising from:
- excessive or unreasonable workloads for workers
- the use of excessive or unreasonable metrics to assess and track worker performance
- excessive or unreasonable monitoring or surveillance of workers
- unlawful discriminatory practices or decision‑making in the conduct of the business or undertaking.
The amendments also expand the powers of WHS entry permit holders (all of whom are union officials), enabling them to access digital work systems, including emails, algorithmic tools and other digital platforms, when investigating suspected WHS breaches.
The powers of WHS entry permit holders to require PCBUs to provide reasonable assistance to access and inspect digital work systems will be subject to guidelines published by SafeWork. Before issuing the guidelines, SafeWork must conduct public consultation about the proposed guidelines, and consider any feedback received about the proposed guidelines.[1]
Why the reforms matter
It is arguable that the current broad WHS duties on PCBUs already extend to digital systems, given that these systems form part of the work environment and can create foreseeable risks to workers. However, the legislation reflects a growing recognition that digital systems can create or exacerbate WHS risks in ways that were not explicitly contemplated when the existing framework was developed. These risks extend beyond physical harm and increasingly relate to psychosocial hazards, such as:
- excessive workloads generated by automated scheduling
- opaque algorithmic decisions affecting job security or performance ratings
- continuous digital monitoring contributing to stress or fatigue
- systems that inadvertently discriminate or create inequitable work patterns.
By expressly capturing digital systems within WHS duties, the Bill modernises and clarifies the regulatory framework, ensuring that PCBUs clearly understand their obligations and proactively address these emerging risks.
Stakeholder responses
The passage of the Bill has prompted strong and divergent reactions. Unions NSW and other worker representatives have welcomed the reforms as a necessary update to WHS law, arguing that digital systems have outpaced existing regulation and that the new duty will help prevent harms associated with algorithmic management and digital surveillance.
Employer groups, including Business NSW and Ai Group, have raised concerns regarding:
- the breadth of the new duty
- the potential compliance burden, particularly for small and medium‑sized enterprises
- the expanded access rights for WHS entry permit holders
- data privacy and cybersecurity implications
- uncertainty about how regulators will assess digital system risks.
Legal risks arising from expanded access powers
From a legal risk perspective, the expanded powers for WHS entry permit holders and regulators to access digital work systems give rise to two distinct concerns. First, regulators may be exposed to material that is subject to legal professional privilege when reviewing digital platforms. While the WHS Act preserves the ability to withhold privileged communications, PCBUs will require clear protocols to identify and assert privilege promptly, particularly given the volume and variety of information typically stored within digital systems.
Second, the broadened access rights for WHS entry permit holders increase the likelihood that they may come across information unrelated to a WHS breach, creating a risk that such information could be inappropriately drawn upon in the context of industrial action or enterprise agreement negotiations.
What this means for organisations
The Bill has not yet received assent. Some provisions will commence on assent and others on proclamation (which for most provisions, must be at least one month after the right of entry guidelines are issued).
The reforms will require many organisations to reassess how they procure, implement and manage digital work systems. Key implications include:
1. Digital systems are WHS hazards
Employers must treat digital systems as potential sources of risk, in the same way they would machinery, equipment or physical work environments.
2. WHS risk assessments must expand
Risk assessments must now consider:
- how digital systems allocate or pace work
- whether automated decisions may cause psychological harm
- the transparency and explainability of algorithmic tools
- the potential for bias or unfair outcomes.
3. Increased scrutiny of digital tools
Regulators and WHS entry permit holders may request access to digital systems during investigations. Employers should expect heightened scrutiny of:
- rostering and scheduling software
- productivity monitoring tools
- AI‑enabled HR systems
- internal communications relevant to WHS matters.
4. Contracting and procurement will need to evolve
Organisations may need to renegotiate vendor contracts to ensure:
- access to system information for WHS compliance
- transparency regarding algorithmic logic
- the ability to modify or disable harmful features.
Preparing for the new obligations
Organisations can take proactive steps now to position themselves for compliance.
1. Conduct a digital WHS audit
Identify all digital systems that influence work and assess their potential WHS impacts, including both bespoke and off‑the‑shelf tools.
2. Update WHS policies and frameworks
Integrate digital system risks into existing WHS governance, including hazard identification, consultation processes and incident reporting.
3. Strengthen consultation with workers
Workers often experience the effects of digital systems most directly. Effective consultation will be critical to identifying risks early and demonstrating compliance.
4. Review data governance and access protocols
Given the expanded access rights under the Act, employers should ensure robust data security, privacy controls and audit trails.
5. Engage with vendors
Seek clarity on how digital tools operate, what data they use and how risks can be mitigated. Consider contractual provisions requiring transparency and cooperation with WHS obligations.
6. Train managers and supervisors
Ensure leaders understand how digital systems can create WHS risks and how to respond to concerns raised by workers.
Looking ahead
The passage of the Work Health and Safety Amendment (Digital Work Systems) Bill 2025 marks a significant shift in how WHS risks will be regulated in an increasingly digital working environment. Digital systems that shape how work is allocated, monitored and performed are clearly moving into the centre of WHS regulation, and will soon attract explicit obligations and heightened scrutiny. This is coupled with amendments made to the Work Health and Safety Act 2011 (NSW) in 2025, regarding rights of entry, the ability to notify safety disputes to the Industrial Commission and enabling unions to bring prosecutions and civil penalty proceedings.
Organisations that take early steps to understand their digital risk profile, strengthen governance frameworks and prepare for new access and compliance expectations will be better placed when the amendments commence. As the regulatory landscape evolves, proactive preparation will be essential to managing legal, operational and reputational risk in the new era of digital work.
[1] Section 118A