NSW passed an algorithm safety law in February. Almost none of it is in force

Safe Work Australia has put AI and digital technologies on the national hazard list, and it is currently consulting on whether the model WHS Act should carry a duty for gig platform operators. Both of those are guidance and proposal. New South Wales has gone further and legislated. That Act is the subject here, and the most useful thing about it today is the commencement table.

What counts as a digital work system

The definition is short and much broader than gig work. SafeWork NSW states it plainly: Digital work system means an algorithm, artificial intelligence, automation or online platform.

Read that against an ordinary workplace rather than a delivery app. Rostering software that decides who works which shift is an algorithm. A warehouse system that sets pick rates is automation. Productivity monitoring, route optimisation, automated performance scoring and shift-swap platforms all sit inside it. The Act is aimed at how work is organised by software, and most NSW employers of any size already use software that organises work.

The two duties

The first change is a clarification rather than a new obligation. A new section 19(3)(c1) makes explicit that the existing primary duty of care includes ensuring the health and safety of workers is not put at risk from the use of digital work systems by the business or undertaking. Nothing about the primary duty’s structure moves: it is the same section 19 duty, owed to the same workers, qualified the same way by what is reasonably practicable.

The second is a genuinely new duty. Section 21A requires a PCBU to ensure, so far as is reasonably practicable, that a worker’s health and safety is not put at risk from the allocation of work by a digital work system used by the business or undertaking. The distinction between the two is worth holding onto: 19(3)(c1) is about the system being safe to use, and 21A is about what the system decides.

Section 21A(2) then lists what a PCBU has to turn its mind to. On SafeWork NSW’s own account, those matters are whether allocation by the system creates or results in the risk of excessive or unreasonable workloads, metrics to assess and track the performance of workers, monitoring or surveillance of workers, or unlawful discriminatory practices or decision-making in the conduct of the business.

That list is the tell for how to read the Act. Three of the four items are psychosocial rather than physical, and the fourth reaches into discrimination, which is not usually where a WHS duty goes. This is work-intensification law wearing safety clothing, and a PCBU assessing it against a physical-hazard checklist will miss most of it.

The union power, and the part of it that is actually new

The headline most likely to be got wrong is the entry permit holder provision. New section 118(1)(a) lets an entry permit holder, meaning a union official issued a WHS entry permit by the Industrial Relations Commission, require a PCBU to provide reasonable assistance to access and inspect a digital work system relevant to a suspected contravention.

It is tempting to read that as unions getting a new right to look inside your algorithm. SafeWork NSW answers that directly, and the answer is no: EPHs have an existing right to inspect any work system, plant, substance, structure or other thing relevant to a suspected contravention of the WHS Act. This includes a digital work system. What the section adds is the obligation on the business to help. An algorithm is not a machine you can walk up to and look at, so a right to inspect one is worth very little without a duty on somebody to open it.

The conditions are specific. The permit holder must give at least 48 hours and no more than 14 days notice before the proposed entry, the power is subject to guidelines SafeWork NSW must issue, and the existing entry requirements in Division 4 of Part 7 continue to apply.

What has actually commenced, and what has not

This is the part to write down. The Act received assent on 18 February 2026, but SafeWork NSW records that only Schedule 1 [7], [9] and [11] commenced, and those are the provisions that let it develop the guidelines. Everything else, the two duties and the entry permit holder power, commence on proclamation after the Guidelines have been developed and published.

There is also a floor under the timing. SafeWork NSW says most provisions, including the new EPH power itself, cannot commence earlier than one month after the DWS Guidelines are published. So the earliest any of this binds a NSW business is a month after a document that does not exist yet.

Where the guideline is up to

Section 118A requires SafeWork NSW to consult the public before issuing the guidelines, and it has chosen a three-stage process. Stage 1 is early targeted consultation with selected stakeholders and, on SafeWork NSW’s published timeline, is expected to conclude in August 2026, which is this month. Stage 2 is further targeted consultation to produce a draft. Stage 3 publishes that draft for a 4 to 6 week public consultation on the NSW Have Your Say platform.

Only stage 3 is open to everyone, and it has not been scheduled. If you want to see the draft when it lands, SafeWork NSW is taking registrations of interest now on the consultation page linked below. That is the whole of the public’s access to this at present, and it is worth ten seconds.

The clause that points at Canberra

The Act contains its own trigger for being reconsidered. It requires the Minister to review it If Safe Work Australia develops Model WHS laws that deal with substantially the same subject matter, and separately twelve months after the review provision commences, with a report tabled in Parliament within eighteen months.

Safe Work Australia is doing exactly that right now. Its consultation on a duty for crowd platform operators closed on 1 June 2026, and SafeWork NSW told it, in the submission that describes this Act, that it supports a targeted national duty while opposing any change to the primary duty or the core definitions. In other words the regulator is arguing for a national settlement that would not disturb what NSW has just legislated, in a process that could formally reopen the NSW Act if it lands differently. Whether it does is not settled, and nothing in the published material sets a date for national advice.

What a NSW business should do with this now

Nothing binds you yet, and the honest answer to “do I have to act” is not this month. Two things follow anyway.

The first is that the section 21A list is a decent risk assessment whether or not it is law. Workloads set by software, performance metrics, monitoring, and automated decisions that fall unevenly on some workers are hazards under the existing primary duty today, in every jurisdiction, because the primary duty already reaches psychosocial risk. NSW has written down four specific things to look at. Looking at them is not compliance work brought forward, it is the duty you already have.

The second is the notice period. When the entry permit holder power does start, it comes with a window of at least 48 hours and no more than 14 days. A business that cannot explain how its own rostering or allocation software makes decisions will not be able to build that explanation inside two days. That is the practical preparation, and it is useful for reasons that have nothing to do with a union visit.