New South Wales has become the first Australian jurisdiction to write specific work health and safety duties for algorithmic and AI-driven work allocation into law. The Work Health and Safety Amendment (Digital Work Systems) Act 2026 passed the NSW Parliament in February, and while national AI regulation is still working its way through a parliamentary committee, this is one that has already landed, is already in the statute book, and applies to any business operating in NSW right now, not a future standard still being drafted.
Most of the AI governance conversation this year has been about what is coming, the national standards expected in 2027, the Joint Select Committee's report due in November. The NSW Act is different. It is not a future obligation. It is a law that redefines what "reasonably practicable" work health and safety looks like when an algorithm, not a manager, is deciding who does what, how much, and how fast.
What a "Digital Work System" Actually Covers
The Act introduces a statutory definition broad enough to capture far more than obvious AI tools. Algorithms, artificial intelligence, automation and online platforms are all captured, which means rostering software, delivery routing algorithms, performance dashboards and AI-assisted task allocation tools are all now squarely within scope, not just chatbots or generative AI systems. Organisations that have only been auditing generative AI tools for governance purposes are working from a narrower definition than the one that now actually applies to workplace safety obligations in NSW.
The New Section 21A Duty
The centrepiece of the reform is a new duty requiring persons conducting a business or undertaking to ensure, so far as is reasonably practicable, that worker health and safety is not put at risk by the allocation of work through a digital work system. This sits alongside a broader duty covering any use of a digital work system by the business, not only work allocation specifically. The two duties together mean an organisation cannot treat an algorithmic scheduling or performance system as a neutral piece of software sitting outside its existing WHS risk framework.
The Specific Risks the Act Names
Rather than leaving "risk" undefined, the Act specifically calls out excessive or unreasonable workloads and the use of excessive or unreasonable metrics to assess and track worker performance. That is a notably direct target. Algorithmic management systems are, by design, built to optimise for throughput and measurable output, and the Act is explicit that optimising for those things at the expense of worker wellbeing is now a WHS compliance question, not just an HR or industrial relations one.
What Is Not Yet in Force
The primary duty and further WHS duty provisions commence once proclaimed, and separate union entry provisions will not commence until at least one month after SafeWork NSW publishes the guidelines it is still developing. That gap matters. Organisations have a genuine window to get ahead of formal enforcement, but the safer assumption is that the guidelines, once published, will describe expectations regulators already intend to hold businesses to, not a wish list open for negotiation.
What This Means for Your Organisation
What we see across the organisations we work with, including those well outside NSW, is that algorithmic work allocation and performance tracking systems have typically been implemented as productivity tools first, with WHS considered only if a specific incident forces the question. The NSW Act inverts that order. Any organisation running rostering algorithms, delivery routing, or automated performance scoring should be treating this the same way regardless of which state they operate in, because other states have historically followed NSW's WHS lead, and retrofitting a risk assessment after a system is already embedded in daily operations is a considerably harder job than building it in from the start.
Key Takeaways
- NSW has become the first Australian state to legislate specific work health and safety duties for algorithmic and AI-driven work allocation, through the Work Health and Safety Amendment (Digital Work Systems) Act 2026, passed in February.
- The Act's statutory definition of "digital work system" is broad, capturing algorithms, AI, automation and online platforms, well beyond generative AI tools alone.
- A new section 21A duty requires businesses to ensure worker health and safety is not put at risk by work allocation through a digital work system, alongside a broader duty covering any use of such systems.
- The Act specifically names excessive workloads and unreasonable performance metrics as risk areas, and while some provisions await proclamation and SafeWork NSW guidelines, organisations should not wait for enforcement to begin preparing.
How Trusenta Can Help
AI Governance Foundations builds the risk assessment and documentation an organisation needs to demonstrate its algorithmic work systems meet WHS obligations, ahead of SafeWork NSW's guidelines landing.
Risk Management tracks the specific risks the Act names, excessive workloads and unreasonable performance metrics, against an organisation's actual digital work systems.
AI Governance Enterprise supports organisations operating across multiple states in building a consistent governance approach that anticipates other jurisdictions following NSW's lead.
Conclusion
The NSW Digital Work Systems Act is not a preview of future regulation. It is current law, with formal enforcement mechanisms still being finalised but the underlying obligation already on the books. Organisations that treat this as a NSW-specific curiosity are missing the more important signal, that work health and safety regulators are now willing to treat algorithmic management as a direct safety question, and NSW is unlikely to be the last state to say so.
