INSIGHT · AI GOVERNANCE & COMPLIANCE
NSW passed digital work system duties in February.
Most of the Act has not commenced.
Which NSW WHS duties for digital work systems are in force? The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (Act No 5 of 2026) received assent on 18 February 2026, and only Schedule 1 items [7], [9] and [11] commenced that day. They concern guidelines for a new entry permit holder power. The new duty limb in s 19, the work-allocation duty in s 21A and the power itself commence by proclamation. On 19 October 2026 the NSW legislation register listed Schedule 1[1] to [6], [8] and [10] as not commenced.
Analysed 19 October 2026 · Work Health and Safety Amendment (Digital Work Systems) Bill 2026, text as passed by both Houses, and NSW Parliament bill page (Act No 5 of 2026, assented 18 February 2026), read through a rendering proxy · SafeWork NSW Act summary page (modified 7 April 2026) and guidelines consultation page (modified 19 August 2026) · NSW legislation register, Work Health and Safety Act 2011 No 10, current version for 1 July 2026 to date, accessed 19 October 2026.
Key takeaways
- Passed, assented, and mostly uncommenced: The bill passed Parliament on 12 February 2026 and received assent on 18 February 2026. Section 2(1)(a) commenced Schedule 1[7], [9] and [11] on the date of assent; section 2(1)(b) leaves everything else to proclamation.
- What commenced is the machinery for guidelines: Item [7] inserts s 118(2A): notice of 48 hours to 14 days, and the power is subject to guidelines. Item [9] inserts s 118A: SafeWork NSW must issue guidelines after public consultation. Item [11] adds a phased-application rule. The power these items qualify, s 118(1)(a1), has not commenced.
- The Act does not tie the duties to the guidelines: Section 2(2) bars proclamation earlier than one month after the first s 118A guidelines are published, but excludes Schedule 1[1] to [3]: the definition, s 19(3)(c1) and s 21A. SafeWork NSW's Act summary says the remaining amendments commence on proclamation after the guidelines are published; the Act's floor applies only to the other items.
- Section 21A names four risks: Once commenced, a person conducting a business or undertaking (PCBU) must consider whether allocating work by or using a digital work system creates excessive or unreasonable workloads, metrics, or monitoring or surveillance, or unlawful discriminatory practices or decision-making.
- We would keep the commencement status as a dated record: A system-design recommendation: each provision carries its status, the source checked and the date checked, so a business can show what it knew was in force on a given day.
Provision by provision:
what has commenced and what waits.
The amending Act has eleven items in Schedule 1. Its commencement section sorts them three ways.
Source: the bill text certified as passed by both Houses, published on the NSW Parliament website, with the Parliament's record of Act No 5 of 2026 and assent on 18 February 2026. Status: the NSW legislation register's current version of the WHS Act 2011 (1 July 2026 to date, accessed 19 October 2026) states that it does not include amendments by Act No 5 of 2026, Schedule 1[1] to [6], [8] and [10] (not commenced); its version history includes a version from 18 February 2026. SafeWork NSW states the remaining provisions will commence on a date or dates to be announced.
| Item | What it inserts or changes in the WHS Act 2011 | Commencement under s 2, and register status at 19 October 2026 |
|---|---|---|
| [1] | s 4: definition of digital work system | Not commenced; by proclamation, not subject to the one-month floor |
| [2] | s 19(3)(c1): primary duty includes workers not being put at risk from the use of digital work systems | Not commenced; by proclamation, not subject to the one-month floor |
| [3] | s 21A: duty about allocation of work by a digital work system, and the four risks to consider | Not commenced; by proclamation, not subject to the one-month floor |
| [4] | Note to s 117: 48 hours to 14 days notice for the new power | Not commenced; by proclamation, not earlier than one month after the first guidelines are published |
| [5] | s 118(1)(a1): entry permit holder may require reasonable assistance to access and inspect a digital work system | Not commenced; by proclamation, not earlier than one month after the first guidelines are published |
| [6], [8] | s 118(2) and (3): consequential wording for (1)(a1) | Not commenced; by proclamation, not earlier than one month after the first guidelines are published |
| [7] | s 118(2A): notice condition, and power subject to s 118A guidelines | Commenced on assent, 18 February 2026 |
| [9] | s 118A: SafeWork NSW must issue and publish guidelines after public consultation | Commenced on assent, 18 February 2026 |
| [10] | ss 276D and 276E: two ministerial reviews | Not commenced; by proclamation, not earlier than one month after the first guidelines are published |
| [11] | Schedule 4: power usable only where relevant guidelines have been published | Commenced on assent, 18 February 2026 |
What the duties say,
and what the position was before.
The new duties sit inside the existing WHS Act 2011 framework. SafeWork NSW describes the s 19 change as a clarification that the existing primary duty of care applies to managing risks arising from the use of digital work systems.
- Definition (s 4, when commenced): "Digital work system means an algorithm, artificial intelligence, automation or online platform."
- Primary duty (s 19(3)(c1), when commenced): Inserted after s 19(3)(c) as a further matter within the primary duty: "the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking".
- Allocation duty (s 21A, when commenced): A PCBU "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", and must consider whether that allocation creates or results in excessive or unreasonable workloads, excessive or unreasonable metrics to assess and track performance, excessive or unreasonable monitoring or surveillance, or unlawful discriminatory practices or decision-making. It is a new section, inserted after s 21.
- Entry permit holders (s 118(1)(a1), when commenced): SafeWork NSW states entry permit holders already have a right to inspect "any work system, plant, substance, structure or other thing relevant to a suspected contravention", including a digital work system. The new power lets them require a PCBU to provide reasonable assistance to access and inspect one.
The guidelines come first,
for the power but not for the duties.
Section 118A, already in force, requires SafeWork NSW to consult the public and consider feedback before issuing guidelines. The guidelines may be ongoing or interim, and may apply generally or to a particular class of persons, work or workplaces. Under the transitional rule in Schedule 4, even after s 118(1)(a1) commences, an entry permit holder may exercise that reasonable-assistance power only where guidelines relevant to its exercise have been published.
- SafeWork NSW's published plan: Stage 1, early targeted consultation, "is expected to conclude in August 2026". Stage 2 is further targeted consultation to develop draft guidelines. Stage 3 publishes the draft for a 4 to 6 week public consultation on the NSW Have Your Say platform. The consultation page, last modified 19 August 2026, still labels Stage 1 "current", but SafeWork NSW's September 2026 newsletter, published 30 September 2026, says the first stage of consultation has been completed. The consultation page gives no dates for Stages 2 and 3.
- Two statements, one Act: SafeWork NSW's consultation page says "most provisions, including the new EPH power itself" cannot commence earlier than one month after the guidelines are published. Its Act summary page says "the remaining amendments commence on proclamation after the Guidelines have been developed and published". The Act's s 2(2) applies that floor to everything except Schedule 1[1] to [3], the definition and the two duties. The Act does not prevent those three items being proclaimed before the guidelines exist.
- Two reviews, two triggers: Section 276D requires a review if the Minister is satisfied Safe Work Australia's model laws deal with substantially the same subject matter. Section 276E requires a review after 12 months from its own commencement, with a report tabled within 18 months. Neither section has commenced.
What a construction business's records would need to show
The definition covers algorithms, artificial intelligence, automation and online platforms. Construction businesses allocate work through rostering, job-dispatch and site-scheduling tools, subcontractor platforms and automated timesheets, and whether any of these is a digital work system under the Act is a question the Act and any guidance answer, not a label a vendor or a business applies. If s 21A commences, it will require a PCBU to consider the four specified risks when work is allocated by or using a digital work system. As a system-design proposal, we would keep a dated record of that consideration for each relevant system; s 21A does not prescribe that record.
- Which systems allocate work: An inventory of each tool that assigns shifts, tasks, sites or jobs, with its version and the date it changed. Without it, the s 21A question cannot be asked system by system.
- How an allocation was made: The inputs, the rule or model that proposed it, and the person who confirmed or overrode it. That is the record an entry permit holder's request under s 118(1)(a1), once commenced, would be directed at.
- What was considered, and when: A dated note against each of workloads, performance metrics, monitoring or surveillance, and discriminatory practices or decision-making. Section 21A(2) words these as matters to consider; it does not prescribe a form.
What we would put in a system
For a NSW business that allocates work through software, we would test for five fields.
Where agents help here is narrow. A scheduling agent can draft a roster or job allocation and record its inputs; a person confirms or changes it, and the confirmation is stored. A compliance agent can watch SafeWork NSW and the NSW Government for a proclamation or guidelines and draft an update to the provision status record for a person to confirm. No agent decides whether a tool is a digital work system, whether a risk is excessive or unreasonable, or whether any duty has been met; no system, ours included, makes a business compliant.
| Field | Why it is load-bearing |
|---|---|
| Provision status: item, status, source checked, date checked | Three items commenced on 18 February 2026; the rest wait for proclamation, and the duties are not tied to the guidelines in the Act. |
| Work-allocating system and version | Section 21A attaches to the allocation of work by a digital work system used by the business. |
| Allocation decision: inputs, proposal, confirming person, time | Shows who decided and on what, and is what a request for reasonable assistance to access and inspect would reach. |
| Dated consideration of the four s 21A(2) risks | Workloads, metrics, monitoring or surveillance, and discriminatory practices or decision-making are named in the Act. |
| Entry notice register: notice date, proposed entry date, guidelines version | Section 118(2A) has commenced, but its notice condition applies to the s 118(1)(a1) power once that power commences: notice given during business hours, 48 hours to 14 days before entry, and the power is subject to the guidelines. |
- Scheduling: Holds each allocation with its inputs and the person who confirmed it.
- Scheduling agent: Drafts rosters and allocations; a named person confirms or changes them.
- AI adoption guidance and construction records: The National AI Centre's six practices, each read as a record a builder keeps.
- Who made this decision?: APP 1.7 from 10 December 2026: disclosing decisions a computer program makes.
Questions worth asking
of your own systems
For a NSW builder or subcontractor using a rostering or job-dispatch tool: can you list every tool that allocates work, and its current version?
Section 21A, once commenced, attaches to the allocation of work by a digital work system used by the business. The list is the starting point for the four questions the section names. General information, not WHS or legal advice.
For an operations lead: does each allocation record show who confirmed it?
A record of inputs and the confirming person is what shows a person, not only a system, made the allocation. That is a record-keeping point; it does not determine whether any duty is met.
For a compliance officer: where is the commencement status of each item stored, and when was it last checked?
As read on 19 October 2026, three items commenced on 18 February 2026, the NSW legislation register lists the other eight as not commenced, and SafeWork NSW states their dates are to be announced. A dated status record lets a business show what it knew on a given day.
Questions people ask
about the NSW digital work systems law
Is the NSW digital work systems duty in force?
Not as read on 19 October 2026. The Work Health and Safety Amendment (Digital Work Systems) Act 2026 received assent on 18 February 2026, but only Schedule 1 items [7], [9] and [11], about the guidelines for a new entry permit holder power, commenced then. The duties in s 19(3)(c1) and s 21A commence by proclamation; the NSW legislation register listed them as not commenced on 19 October 2026, and SafeWork NSW states the dates are to be announced.
What is a digital work system under NSW WHS law?
The amending Act defines a digital work system as "an algorithm, artificial intelligence, automation or online platform". The definition is inserted into s 4 of the Work Health and Safety Act 2011 by Schedule 1[1], which commences by proclamation and was listed as not commenced on the NSW legislation register on 19 October 2026.
Does the NSW law cover AI scheduling and work allocation?
Section 21A, once commenced, requires a business to ensure so far as reasonably practicable that workers are not put at risk from the allocation of work by a digital work system it uses, and to consider workloads, performance metrics, monitoring or surveillance, and discriminatory practices or decision-making. Whether a particular tool falls within it is not determined here.
Can a union official inspect an algorithm in NSW?
SafeWork NSW states WHS entry permit holders already have a right to inspect any work system relevant to a suspected contravention, including a digital work system. The new power in s 118(1)(a1) to require reasonable assistance has not commenced, cannot commence earlier than one month after the first SafeWork NSW guidelines are published, and needs 48 hours to 14 days notice.
Have the SafeWork NSW digital work systems guidelines been published?
As read on 19 October 2026, SafeWork NSW's consultation page, last modified 19 August 2026, did not announce or link to issued s 118A guidelines. It describes a three-stage process ending in a 4 to 6 week public consultation on a draft. SafeWork NSW's newsletter of 30 September 2026 says the first stage of consultation has been completed.
What this analysis
does and does not show.
Evidence note
- What it shows
- The text of the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 as passed by both Houses, its commencement rule item by item, the Parliament's record of assent and Act number, the NSW legislation register's commencement note on the current WHS Act 2011, and SafeWork NSW's published statements on commencement and guidelines, as read on 19 October 2026.
- Key facts quoted
- Passed 12 February 2026; assented 18 February 2026; Act No 5 of 2026; s 2(1)(a): Schedule 1[7], [9] and [11] on assent; s 2(1)(b): otherwise by proclamation; s 2(2): one-month floor after first guidelines, except Schedule 1[1] to [3]; register at 19 October 2026: Schedule 1[1] to [6], [8] and [10] not commenced; s 21A(2) four risks; s 118(2A) 48 hours to 14 days notice; SafeWork Stage 1 expected to conclude in August 2026 (consultation page) and completed (newsletter, 30 September 2026).
- Commencement status is the NSW legislation register's note on the current version of the WHS Act 2011 (1 July 2026 to date, accessed 19 October 2026). The register states that legislation on the site is usually updated within 3 working days after a change.
- The amending Act's text is quoted from the bill as passed by both Houses on the NSW Parliament website (bill page read through a rendering proxy), not from the register's copy of Act No 5 of 2026.
- NSW only. Other states, Commonwealth law and Safe Work Australia's model laws are not covered.
- General information, not legal or WHS advice.
What to watch next
No date has been published for any of these.
- SafeWork NSW's Stage 3 public consultation: A draft of the guidelines for a 4 to 6 week public consultation on the NSW Have Your Say platform, after Stage 2.
- Publication of the first s 118A guidelines: Starts the earliest date, one month later, from which the power and the other floored items can be proclaimed.
- Proclamation of Schedule 1[1] to [3]: The definition and the two duties. The Act does not tie their commencement to the guidelines.
Bring us one roster
and the tool that made it.
Send us a week's roster or job allocation and the name of the tool that proposed it. We will show you which fields your records hold for the inputs, the person who confirmed it and the four matters s 21A names, and which are missing.
This article is general information about NSW legislation and SafeWork NSW publications. It is not legal or WHS advice, it does not determine whether any system is a digital work system or whether any duty is met, and it does not describe any product as compliant. NSW only. Status as read on 19 October 2026.
Sources
Suggested citation: Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW), No 5 of 2026, s 2 and Schedule 1, as passed by both Houses and assented 18 February 2026, with the NSW legislation register's status note on the current Work Health and Safety Act 2011 and SafeWork NSW pages, as read 19 October 2026. Derived figures: none.
- NSW Parliament - Work Health and Safety Amendment (Digital Work Systems) Bill 2026, passed by both Houses: Passed 12 February 2026 · read 19 October 2026 · Bill text as finally passed (PDF)
- NSW Parliament - Work Health and Safety Amendment (Digital Work Systems) Bill 2026, bill details: Assented 18 February 2026, Act No 5 of 2026 · read 19 October 2026 through a rendering proxy because the site blocks automated access · Parliamentary record
- NSW legislation - Work Health and Safety Act 2011 No 10, current version: Current version for 1 July 2026 to date · accessed 19 October 2026 in a browser because the site blocks automated access · Official legislation register; status note on Act No 5 of 2026
- SafeWork NSW - SafeWork Wrap, September 2026: Published 30 September 2026 on SafeWork NSW's LinkedIn page · read 19 October 2026 · Government regulator newsletter
- SafeWork NSW - Work Health and Safety Amendment (Digital Work Systems) Act 2026 (Amendment Act): Page modified 7 April 2026 · read 19 October 2026 · Government regulator legislation summary
- SafeWork NSW - Development of the Digital Work Systems Guidelines: Page modified 19 August 2026 · read 19 October 2026 · Government regulator consultation page