By Michael Selinger and Jessica Alamyar -
Snapshot
- NSW is introducing Australia’s first express work health and safety duty aimed squarely at digital work systems, making algorithmic allocation of work a regulated safety risk rather than a neutral business tool.
- Section 21A reframes digital systems as a system of work, requiring persons conducting a business or undertaking to proactively assess and control risks such as excessive workloads, performance metrics, surveillance and discriminatory decision.
- The reform signals a shift by SafeWork NSW toward proactive, systems‑based audits, with compliance likely to turn on governance, system design and the ability to explain how digital work allocation actually operates in practice.
The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) (‘Amendment Act’) represents the first express statutory duty in Australia directed at digital work systems, including algorithmic allocation of work, performance metrics and worker surveillance. The introduction of section 21A in the Work Health and Safety Act 2011 (NSW) (‘WHS Act’), which will commence on a date to be proclaimed, clarifies that the use of digital systems to allocate work is now legally considered a potential risk to health and safety that must be proactively managed by the primary duty holder.
The reforms reflect a broader regulatory focus on psychosocial risks arising from algorithmic management, monitoring and the use of automated decision making in the workplace. While the primary duty of care under section 19 of the WHS Act has always required a person conducting a business or undertaking (‘PCBU’) to ensure, so far as is reasonably practicable, the health and safety of workers, section 21A makes clear that digital systems fall within that duty and must be assessed and controlled as a system of work.
