On 12 February 2026, the Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (NSW) (AI Bill) passed parliament, resulting in the following changes to the Work Health and Safety Act 2011 (NSW) (WHS Act):

• an employer's duty of care now specifically includes a requirement to ensure the health and safety of workers is not put at risk from the use of a 'digital work system'.  This requirement includes any use of AI and is only limited to workers, not other persons; 

• an additional specific duty has been added which requires an employer to ensure the health and safety of workers is not put at risk from the allocation of work by a ‘digital work system’. This duty is specifically limited to the ‘allocation of work' by AI and again, limited to only workers;

• 'Digital work system' has been defined as an algorithm, artificial intelligence, automation or online platform; and

• WHS entry permit holders (i.e. union officials) will soon have power to inspect any 'digital work system' relevant to a suspected contravention.

Given these changes, any employers that are utilising AI in their business should consider the risks associated with same and whether they are being managed appropriately, as interest from SafeWork NSW inspectors and union officials is likely to increase considerably. 

Explore our in-depth analysis of what these WHS amendments mean for employers. 

Sections 19(1) & 19(2) of the WHS Act require a person conducting a business or undertaking (PCBU e.g. employer) to ensure, so far as is reasonably practicable, the health and safety of workers (e.g. employees and contractors) and other persons (e.g. clients/customers and the general public). 

Section 19(3) provides specific examples as to how a PCBU can ensure the health and safety of workers and other persons, including safe plant and structures, and safe systems of work. 

The AI Bill inserts a new s 19(3)(c1), which provides 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.” 

While the primary duty includes an obligation to both workers and other persons, the obligation regarding the use of AI is limited only to workers. Whether this obligation is subsequently extended to include other persons remains a possibility. 

It is also important to note that the obligation relates to any use of AI by the PCBU, not just 'allocation of work', like the provision referred to below. Accordingly, this obligation includes all types of AI tools that are available and the numerous uses of same.    

Part 2, Division 3 of the WHS Act includes a number of further duties for PCBU's, including management or control of workplaces, and management or control of fixtures, fittings or plant. 

The AI Bill inserts a new s 21A, which provides 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: 

(a) excessive or unreasonable workloads for workers at work in the business or undertaking;

(b) the use of excessive or unreasonable metrics to assess and track the performance of workers at work in the business or undertaking; 

(c) excessive or unreasonable monitoring or surveillance of workers at work in the business or undertaking;

(d) unlawful discriminatory practices or decision making in the conduct of the business or undertaking.” 

As already noted above, this obligation is also limited to workers. Whether this obligation is also subsequently extended to include other persons remains a possibility. 

It is also important to note that the obligation is limited to the 'allocation of work' and that a PCBU using AI for the allocation of work MUST consider the risks outlined above. The amendments are designed to deal with a number of likely risks that may arise from the use of AI, such as the distribution of work, performance management, monitoring and surveillance, and discrimination. 

As the new legislation regarding the allocation of work is most specific and was one of the main catalysts for the introduction of the legislation, we anticipate that SafeWork NSW inspectors and union officials will be most interested in compliance with this specific duty. 

As part of the AI Bill, union officials will have the power to enter a workplace and inspect an AI tool relevant to any suspected contravention. 

Relevantly, the union official must provide at least 48 hours' notice of the proposed entry and the exercise of this power is subject to the guidelines to be issued by SafeWork NSW about such power. These guidelines are yet to be drafted and will be published on SafeWork NSW's website after public consultation and consideration of any feedback. Relevantly, the guidelines may apply generally, or may be limited to a particular class of persons, work or workplaces. 

Please note that none of the provisions in the AI Bill are in effect yet.

Relevantly, the primary duty and further WHS duty will not commence operation until they are proclaimed. While the power to enter a PCBU's premises will not commence until at least one month after the guidelines are first published, and a union official will not be able to exercise such a power at a workplace, unless the workplace is covered by the guidelines. 

The use of AI as a workplace hazard has always been covered by the WHS Act, much like psychosocial hazards were always covered before they were specifically included in the legislation. 

However, as the use of AI is now specifically legislated, SafeWork inspectors will investigate same more closely, as they now have specific legislation to refer to. In addition, union officials will also monitor compliance by PCBU's more closely, particularly in circumstances where they will have power to enter the workplace and inspect the relevant AI tool being used.

Despite NSW having adopted Safe Work Australia's Model WHS Act, these amendments are the first of their kind in Australia. Relevantly, the AI Bill provides that it is to be reviewed if Safe Work Australia amends the Model WHS Act to deal with substantially the same subject matter, such that it remains to be seen whether the legislation will continue in its current form or ultimately be amended to ensure consistency with other States and Territories. 

For more information or to discuss how the AI Bill may affect your business, contact our Employment & Safety team.