Law + guidance

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

The Work Health and Safety Amendment (Digital Work Systems) Act 2026 puts algorithms, AI, automation and online platforms inside the NSW WHS Act. It received assent on 18 February 2026. Six months on, three provisions have commenced and they are the ones that let SafeWork NSW write a guideline. The duties have not started and the new union power has not started. The Act holds the union power back until at least a month after that guideline is published. The duties carry no such hold and could be switched on sooner by proclamation, though SafeWork NSW says they will follow the guideline. Here is what is coming, and when.

24 August 2026 · The Duty Holder · 9 sources

PCBU Psychosocial NSW

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. The Act inserts it into section 4 of the WHS Act: a 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 that 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. A PCBU must consider whether the allocation of work by or using a digital work system creates or results in any of four risks: excessive or unreasonable workloads, the use of excessive or unreasonable metrics to assess and track the performance of workers, excessive or unreasonable monitoring or surveillance of workers, and unlawful discriminatory practices or decision-making in the conduct of the business or undertaking. The qualifier carries weight: measuring performance and monitoring work are not the risk in themselves, and the duty is aimed at the point where they become excessive or unreasonable.

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)(a1) 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, and the Act adds that the notice is given during business hours. The power is subject to guidelines SafeWork NSW must issue, and the existing entry requirements in Division 4 of Part 7 continue to apply.

There is a second brake, in a transitional clause the Act adds to Schedule 4. Even after the power commences, a permit holder can use it only if guidelines relevant to the exercise of the power have been published under section 118A. Because the guidelines may be limited to a class of persons, work or workplaces, the power can arrive one class of workplace at a time.

What has actually commenced, and what has not

This is the part to write down. The Act received assent on 18 February 2026, and its section 2 commenced three items that day: Schedule 1[7], [9] and [11]. They are the notice condition on the union power, the section 118A requirement for SafeWork NSW to issue guidelines, and the transitional clause above. Everything else, including the definition, the two duties and the entry permit holder power itself, commences on a day or days to be appointed by proclamation. The current version of the WHS Act on the NSW legislation website, read on 18 October 2026, still lists those items as not commenced.

The floor under the timing is narrower than we first reported. Section 2(2) says a proclaimed day must not be earlier than a day that is one month after the day on which the first guidelines issued under the Work Health and Safety Act 2011, section 118A are published, but it covers every provision other than Schedule 1[1]–[3], and those three items are the definition, the section 19 clarification and the new section 21A duty. So the union power cannot start until a month after a document that does not exist yet, while the duties could be proclaimed at any time. SafeWork NSW’s page on the Act says the remaining amendments commence on proclamation after the Guidelines have been developed and published, which describes the plan rather than a limit in the statute. Its guidelines page puts the timing more loosely, and consistently with the Act: the remaining provisions will commence on a date or dates to be announced by the NSW Government, and Different provisions may commence on different dates.

How the timing got there

The gap between the duties and the union power was not in the Government’s bill. As introduced in November 2025, its commencement clause was one line: This Act commences on a day or days to be appointed by proclamation. The Minister for Work Health and Safety, Sophie Cotsis, gave the reason in her second reading speech: The provisions of the bill will commence on proclamation. This will ensure that a robust engagement, communication and education campaign is in place to support PCBUs and key stakeholders to prepare for these changes. She gave no date.

The one-month floor arrived in the Legislative Council on 12 February 2026, in seven amendments moved by Emma Hurst for the Animal Justice Party. Her amendment No. 1, she told the committee, delays the commencement of the majority of the provisions in the bill until at least one month after guidelines have been developed. The same set added the duty to consult the public on the guidelines, the class-by-class transitional clause and the 12-month review. The Treasurer, Daniel Mookhey, said the Government would support them and was happy to comply with the suggestion that the commencement should be tied to the establishment of the guidelines. The floor he was backing excludes the definition and the two duties. The Opposition supported the amendments too. The 48-hour minimum notice, up from the 24 hours the existing entry rules in section 120 give, came from Shooters, Fishers and Farmers Party amendments agreed the same evening, and the Assembly agreed to all of the Council’s amendments that day.

The Opposition had proposed a wider floor. Its amendment No. 1 would have held the whole Act, duties included, until the later of proclamation and the day that is 30 days after the regulator publishes the guidelines required under section 118A. It was moved with the Opposition’s 13 other amendments and lost on division, 15 votes to 19.

Hurst also told the committee she had spoken to the Government and understand that it will make a funding package available to businesses and unions to provide relevant education and training programs to assist with the rollout. That is her account of a conversation, not a Government announcement.

Our view. Nothing in the Act stops the duties being proclaimed before a guideline exists, and the Government supported the amendment that left them free to start. But the Minister said commencement by proclamation was to ensure an education campaign is in place, and SafeWork NSW says the remaining amendments will follow the guidelines. A proclamation of the duties well ahead of any guideline would be hard to square with that, and we will report it if one is made.

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, the month we first published this. When we checked again on 12 October and 18 October 2026 the same page still marked Stage 1 as the current stage, with the August date unchanged. 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. In the Act the first trigger turns on the Minister being satisfied that the model laws deal with substantially the same subject matter, and the review must ask, among other things, whether those laws provide a higher standard of health and safety for workers than the relevant provisions.

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. The duties could be proclaimed ahead of the union power, but no proclamation has been made, so the honest answer to “do I have to act” is still 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.

Sources

Provenance. Researched, written and maintained with AI under rules the people who run this site set and enforce, and taken from the primary sources below. 20 quoted passages were confirmed by an automated check against the archived sources. How The Duty Holder works.

SafeWork NSW, Work Health and Safety Amendment (Digital Work Systems) Act 2026 (Amendment Act) (read 24 August 2026): the definition of a digital work system; that the Act received assent on 18 February 2026 and that only Schedule 1 [7], [9] and [11] commenced; that the remaining amendments commence on proclamation after the guidelines have been developed and published; SafeWork NSW’s summary of the new sections 19(3)(c1), 21A and 118A and of the entry permit holder power, which it numbers section 118(1)(a) (re-read 18 October 2026, unchanged); the notice window of at least 48 hours and no more than 14 days; that the powers cannot commence earlier than one month after the first guidelines are published; that existing entry requirements under Division 4 of Part 7 still apply; and the two review mechanisms, including the trigger where Safe Work Australia develops model WHS laws on substantially the same subject matter and the tabling of a report within 18 months.
SafeWork NSW, Development of the Digital Work Systems Guidelines (read 24 August 2026): the three key changes as SafeWork NSW summarises them; that most provisions, including the entry permit holder power, cannot commence earlier than one month after the guidelines are published; the three-stage consultation process; that stage 1 is the current stage and is expected to conclude in August 2026; that stage 3 is a 4 to 6 week public consultation on the NSW Have Your Say platform; the registration of interest; that an entry permit holder is a union official issued a WHS entry permit by the Industrial Relations Commission; and the statement that entry permit holders already have a right to inspect any work system relevant to a suspected contravention, including a digital work system, so that what is new is the requirement to provide reasonable assistance.
SafeWork NSW, submission to Safe Work Australia on improving work health and safety for workers using crowd platforms, June 2026, published as response #16 (pdf read 24 August 2026): its description of the Act, and SafeWork NSW’s position that it supports a targeted duty for crowd platform operators but does not support amending the primary duty of care or existing core definitions.
NSW Parliamentary Counsel’s Office, Work Health and Safety Amendment (Digital Work Systems) Act 2026 No 5, as made (read 18 October 2026): the section 4 definition; the text of sections 19(3)(c1), 21A, 118(1)(a1), 118(2A) and 118A; the commencement rule in section 2, including that the one-month floor covers every provision other than Schedule 1[1] to [3]; the Schedule 4 transitional clause on phased application; and the review provisions in sections 276D and 276E.
NSW Parliamentary Counsel’s Office, Work Health and Safety Act 2011 No 10, current version for 1 July 2026 to date (read 18 October 2026): that the version does not include the amendments by Schedule 1[1] to [6], [8] and [10] of the Digital Work Systems Act, which it lists as not commenced.
Parliament of NSW, Work Health and Safety Amendment (Digital Work Systems) Bill 2025, first print (read 18 October 2026): the commencement clause as introduced.
Parliament of NSW, Legislative Assembly Hansard, 19 November 2025, second reading speech of the Minister for Work Health and Safety (proof, read 18 October 2026): the reason given for commencement on proclamation.
Parliament of NSW, Legislative Council Hansard, 12 February 2026, committee stage (proof, read 18 October 2026): the Animal Justice Party amendments and Emma Hurst’s account of them, the Treasurer’s response, the Opposition’s commencement amendment and the 15 to 19 division, and the Shooters, Fishers and Farmers Party amendments agreed. The 24-hour minimum in section 120 is from the current WHS Act listed above.
Parliament of NSW, schedule of amendments in the Legislative Council’s message of 12 February 2026, and Legislative Assembly Hansard, 12 February 2026 (read 18 October 2026): which party moved each amendment that became law, and the Assembly agreeing to them.
The Duty Holder, Should gig platforms carry a WHS duty? Safe Work Australia’s own paper argues both sides (24 August 2026): the national consultation, its 1 June 2026 close and the fourteen published submissions.

Methodology. The first version took the Act’s content and commencement from SafeWork NSW’s own two pages on it, read in full on 24 August 2026, because legislation.nsw.gov.au served a Cloudflare interstitial to an automated reader. On 18 October 2026 we read the Act as made, and the current version of the WHS Act, in an ordinary browser on the NSW legislation website. The section numbers, the quotations from the Act and the commencement rules now come from the statute; where SafeWork NSW’s description differs, both are given. The reading that the section 21A matters are predominantly psychosocial, and the observation about the review clause and the national process, are ours and are built on the quoted material.

See an error? Request a correction and we will check it against the sources above and log the outcome.

Updated later on 18 October 2026. We read the bill as introduced, the Minister’s second reading speech, the Legislative Council’s committee debate and the schedule of its amendments, and added a section on how the commencement rules came about, with four new source entries. Nothing earlier in the piece changed.

Corrected 18 October 2026. We have now read the Act itself, which the first version could not reach, and three things were wrong. We said the Act’s own design keeps the duties from starting until a month after SafeWork NSW’s guidelines are published. Section 2(2) puts that floor under every provision except the definition and the two duties (Schedule 1[1] to [3]), which could be proclaimed at any time. We had read SafeWork NSW’s most provisions as covering the duties; the summary, the commencement section and the closing advice are rewritten to say so. We numbered the union power section 118(1)(a), following SafeWork NSW’s page; the Act inserts it as section 118(1)(a1). And our list of the section 21A(2) risks, taken from a SafeWork NSW submission, dropped the words excessive or unreasonable that the Act puts in front of performance metrics and monitoring; the list is now quoted from the Act. We also added the Act’s transitional clause, the business-hours condition on notice, the Minister’s test in the review provision, and two new sources: the Act as made and the current WHS Act. The section 19(3)(c1) quotation now follows the Act’s wording rather than SafeWork NSW’s. As of 18 October 2026 nothing beyond the original three items has commenced.

Updated 12 October 2026. We re-read both SafeWork NSW pages. The Act page still says only the three guideline provisions have commenced, and the guidelines page still lists Stage 1 as current, past its expected August finish, with no draft published. The first version called August this month; that line now gives the October status instead. Nothing else changed.