Introduction

On 12 February 2026, the NSW parliament passed its Work Health and Safety Amendment (Digital Work Systems) Bill 2026.

At the time of writing this article, this bill is yet to become law¹ and when it does, it will amend the WHS Act 2011 (the WHS Act) by:

• defining what a digital work system is
• expanding the PCBU’s primary duty of care 
• creating a new digital work system-specific duty for PCBUs,
• expanding upon a WHS entry permit holder’s rights and duties when entering into a workplace to inquire into a suspected contravention of the WHS Act as it relates to or affects a worker, 
• extending the right of entry safeguards, and
• prescribing 2 separate reviews to take place with respect to these changes.

The definition of ‘digital work system’

A digital work system means:

• an algorithm,
• artificial intelligence,
• automation, or
• online platform. 

The expanded primary duty of care 

The PCBU’s primary duty of care will be extended to include a duty to ensure, so far as is reasonably practicable, that:

“the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking”.

The new digital work system-specific duties for a PCBU

There will also be two new digital work system-specific duties.

The first is a duty to ensure, so far as is reasonably practicable, that:

“the health & 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.”

The second is that:

“A PCBU must consider whether the allocation of work by or using a digital work system creates or result in any of the following risks:

• Excessive or unnecessary workloads for workers at work in the business or undertaking,
• The use of excessive or unreasonably 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,
• Unlawful discriminatory practices or decision-making in the conduct of the business or undertaking.”

Clear definitions of what these terms actually mean will need to be included in the guidelines (yet to be developed). 

Rights of Entry 

The new right

The new right will be that the WHS entry permit holder (the permit holder) may require the PCBU to provide the permit holder with reasonable assistance to access and inspect a digital work system relevant to the suspected contravention 

The extended safeguards

The safeguards that already exist in relation to being allowed to inspect and make copies of documents have been extended to include digital work systems.

The safeguard for the PCBU is that the PCBU is not required provide the permit holder with reasonable assistance to access and inspect a digital work system relevant to the suspected contravention if it would contravene a law of the Commonwealth or a State.

The safeguard for the permit holder is that the PCBU must not, without reasonable excuse, refuse or fail to comply with the requirement that the PCBU provide the permit holder with reasonable assistance to access and inspect a digital work system relevant to the suspected contravention.

An additional safeguard 

The new laws also provide for an additional safeguard.

It requires that the permit holder exercise its right subject to guidelines made by the regulator.

A clear definition of what “providing reasonable access” actually means will need to be included in the guidelines (yet to be developed). 

To adequately protect NSW businesses, it has to be something more than simply creating a password for the permit holder to use.