On 6 August 2025, the NSW Government introduced the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (Bill) which proposes amendments to the Work Health and Safety Act 2011 (NSW) (WHS Act), representing the third round of changes to the WHS Act in 2025 alone.
Schedule 4 of the Bill introduces a new duty on persons conducting a business or undertaking (PCBUs) to the WHS Act concerning the use of'digital work systems' (meaning, algorithms, artificial intelligence, automation, online platforms, and software). The proposed new obligation requires PCBUs to ensure that these 'digital work systems' do not create health and safety risks to workers, while also requiring PCBU's to provide WHS entry permit holders with reasonable assistance to access and inspect a digital work system related to a suspected contravention of the WHS Act. The new duty is the first of its kind in Australian work health and safety legislation and has been introduced ahead of SafeWork Australia's review of technology as outlined in the Emerging Challenges Strategy for 2023 – 2033.
In her Second Reading Speech, Minister for Industrial Relations and Minister Work Health and Safety, Sophie Cotsis says that these reforms "will help to ensure that existing worker rights and protections are appropriately balanced with workplaces embracing new technologies to drive innovation and productivity". She emphasised that while "advances in AI and digital services will drive rapid change both in and out of the workplace over the coming years, these changes must not come at the cost of the health and safety of workers".
The reforms reflect similar recommendations from a Senate inquiry into AI, which called for updating workplace health and safety frameworks to impose apositive duty on employers to minimise AI-related risks.
These changes also follow earlier significant reforms to the NSW workers compensation scheme, which remain under further inquiry by a Parliamentary Committee. See link to our related article here.
NSW Reforms
Duties of PCBUs involving digital work systems
The Bill introduces a new section 21A in the WHS Act, which mandates that PCBUs using digital work systems must,as far as reasonably practicable,ensure these systems allocate work without causing health and safety risks. Without limiting this general obligation, the PCBU must also consider whether the allocation of work by or through a digital work system creates or results in any of the following risks for workers at work:
- excessive or unreasonable workloads;
- the use of excessive or unreasonable metrics to assess and track worker performance;
- excessive or unreasonable monitoring or surveillance;or
- discriminatory practices or decision-making.
Rights that may be exercised while at workplace
The Bill expands the rights of WHS entry permit holders under s 118 of the WHS Act, requiring PCBUs to assist entry permit holders to access and inspect digital work systems when investigating suspected legal breaches of the WHS Act. In her Second Reading Speech, Sophie Cotsis explained that examples of inspectable items include"code or algorithms, performance metrics, records, data logs, and audit trailsgenerated by digital systems".
The ability for workers to obtain information about these technologies upon entry a workplace builds on the additional rights unions obtained to collect evidence relating to suspected contraventions passed in late June 2025 and could be tested by unions in the NSW Industrial Relations Commission (IRC) by way of a dispute referral. See our related article here for further details.
Key takeaways
Given the broad scope of the duties in the WHS Act, a PCBU's obligations relating to 'digital work systems' have always fallen under its general duty to ensure health and safety. However, we expect that due to the manner in which technology is framed in the Bill, the use of technology itself will be subject to challenge on the basis of health and safety.
Businesses will have to ensure the impact of technology on health and safety is integrated into its risk management processes, understand which technologies will captured by the new duty and how those technologies inform decision making, monitor workers, allocate work and track performance (whether purposely or not). Businesses must also consider whether the use of such technologies will introduce new or heighten existing risks, such as psychological risks.
The potential for unions to obtain information about technologies raises a number of issues for businesses. First, the new power might mean there are union requests for information relating to proprietary technological platforms that are typically kept confidential. Second, issues such as workplace surveillance and monitoring of workers have traditionally fallen into the industrial or employment dispute sphere. The potential for unions to obtain information about technologies that they have not had access to in the past (for example, in relation to how work from home is monitored by a business) and use that information to raise a WHS dispute in the IRC to challenge that technology on safety grounds, further blurs the lines between safety and industrial issues.
Next steps
The Bill is currently before the Legislative Assembly and remains subject to further consultation. We expect that there will be more details to come around the progress of the Bill and the impact of the proposed amendments soon.
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