Digital Work Systems and WHS Inspection Access and Regulatory Expectations

8 min read

Series Part 2 Transparency, Entry and Guidance Provisions

If you read Part 1, you’ll remember we looked at how digital work systems are now woven directly into WHS duties. That context is important here, because these transparency and access provisions sit on top of those same foundations.

As outlined in Part 1 of this series, amendments to the Work Health and Safety Act 2011 (NSW) have now inserted digital work systems within WHS duties affecting PCBUs. While those changes primarily address WHS risk management obligations, the legislation also introduces provisions relating to transparency, inspection access, regulatory guidance and oversight.

Importantly, the parliamentary process significantly reshaped these provisions. Rather than enabling immediate or broad digital inspection powers, the final Act introduces controlled, staged processes that only activate once regulator guidelines are in place.

This article examines those transparency and access related elements and their practical relevance for organisations. In short, the final Act is more considered and operationally constrained than some early commentary and interpretations. Instead of opening the door to broad digital inspections overnight, it sets up an approach that only starts once clear SafeWork NSW guidelines exist.

Access and inspection considerations

One aspect of the amendments explains the interaction between digital work systems and existing entry and inspection mechanisms under WHS legislation.

The Act confirms that authorised entry permit holders may require reasonable assistance when exercising functions connected with digital work systems. However, the final legislation introduces procedural safeguards. These include notice requirements and dependency on regulator issued guidelines before certain powers can be exercised.

This indicates that reviewing technology driven work allocation or monitoring processes may require cooperation beyond traditional workplace inspections, while remaining within controlled confines.

This framework reinforces that digital inspection requests will continue to operate within established WHS entry powers, rather than creating a new form of electronic surveillance by SafeWork NSW.

This distinction matters. Many organisations have been understandably anxious about the idea of digital inspections. What the Act delivers is far more familiar, it extends existing powers into modern digital workplaces, rather than creating an entirely new compliance regime.

In practical terms, “reasonable assistance” may include demonstrating how a digital system allocates work, exporting relevant activity data, providing access to system dashboards or arranging for a vendor or internal technical specialist to explain the digital system functionality.

Put simply, regulators don’t need and won’t be asking for your source code or backend system access. What they’re looking for is an explanation of how the system shapes work, not a technical examination of how the software is built.

The intent is to allow understanding of how digital processes influence work practices without requiring unrestricted backend system access.

Organisations should consider how these processes intersect with WHS consultation obligations. Where digital systems shape work allocation, monitoring or performance expectations, informing and consulting workers about how SafeWork NSW may review system generated information supports your WHS legislative obligations.

Digital systems are often not simple, standalone tools. They usually involve several layers of technology and oversight. This can include platforms managed by external vendors, cloud based hosting arrangements, privacy and security controls, proprietary software and structured data management systems. Supporting a regulator request in these environments may require coordination between operational managers, IT teams, governance personnel and external providers.

Importantly, the Act does not mandate unrestricted exposure of proprietary algorithms, confidential datasets or commercially sensitive information. WHS inquiries remain focused on understanding how system behaviours influence work conditions, not on technical auditing of software architecture.

Examples of regulator engagement may include reviewing automated rostering logic in relation to fatigue risk, examining performance dashboards influencing workload allocation, or inspecting logs that record task assignment patterns. The focus remains on WHS relevant outcomes rather than system validation.

For example, if your rostering software automatically adjusts staffing levels based on performance trends, SafeWork NSW may simply want to see how those settings work in practice. They’re looking to understand the impact on workload and safety, not to critique the technology itself.

Conditional activation and notice requirements

A significant change introduced is the staged and conditional activation of certain access powers.

Digital inspection powers are not exercisable immediately upon passage of the legislation. Their operation is linked to the publication of SafeWork NSW regulator guidelines. In addition, notice periods apply before access can be required.

This significantly manages operational exposure. Rather than creating immediate open ended inspection capacity, the legislation establishes a defined procedural pathway. This improves certainty and provides organisations with preparation time before engagement occurs.

For PCBUs, this means compliance readiness is linked not simply to legislative assent, but to SafeWork NSW regulatory guidance development and activation timelines.

Complexity arising from external platforms

Many organisations rely on externally hosted or managed digital tools. Where platforms are supplied or administered by third parties, facilitating assistance may involve practical and contractual considerations.

Where procurement contracts do not currently address WHS related transparency, organisations may benefit from including clauses that obligate vendors to assist PCBUs in responding to regulator inquiries, including providing system explanations or data exports if required.

These may include

• Contractual access limitations

• Data ownership boundaries

• Cybersecurity obligations

• Technical access constraints

• Cross jurisdictional data hosting

PCBUs may need to review vendor arrangements to ensure cooperation processes exist for WHS regulatory interaction, including WHS related transparency clauses in procurement documentation to reduce uncertainty during regulator inspections.

Where system data is located outside Australia, questions of response coordination may arise. The Act does not extend WHS jurisdiction to overseas data centres. However, organisations should understand system architecture and governance arrangements sufficiently to respond to regulator inquiries.

A practical point worth calling out is that WHS duties don’t override privacy requirements. Both sets of obligations still apply, which means organisations may occasionally need to balance the two when responding to a SafeWork NSW request.

PCBUs should ensure that any disclosure of digital work data complies with applicable privacy laws. Establishing clear redaction processes and data minimisation practices helps organisations meet both WHS and privacy requirements when responding to regulator requests.

Balancing WHS cooperation with privacy and data protection obligations remains essential. Controlled access, redaction processes and documented data governance arrangements can support lawful transparency without compromising security or confidentiality.

Development of SafeWork NSW guidance

A key feature of the Act is the formal requirement for SafeWork NSW issued guidelines relating to digital work system access powers. These guidelines must undergo public consultation before publication and would evolve over time.

This reflects legislative recognition that emerging technological risk fields require interpretive support beyond statutory drafting alone. Guidelines are likely to assist organisations in understanding

• How digital allocation risks should be assessed

• What constitutes “excessive or unreasonable” monitoring or workload

• Practical governance expectations

• Reasonable assistance parameters during inspections

While the Act links activation to the release of SafeWork NSW guidelines, the timing, scope and consultation period for these guidelines remain subject to regulatory development. Organisations will need to monitor early drafts or consultation papers to anticipate operational impacts.

Historically, guidance instruments have played a significant role in translating broad WHS duties into operational understanding across industry sectors. In this context, guidance will become the primary interpretive layer shaping enforcement practice.

For PCBUs, unions and industry associations monitoring regulator publications and participating in consultation processes will be an important element going forward.

Review of model law considerations

The Act also includes a review mechanism linked to broader model WHS developments. While this does not directly impose new duties on PCBUs, it highlights that digital work systems are being considered within the wider national harmonised WHS framework.

Organisations operating across multiple jurisdictions should be aware that similar approaches may emerge nationally. The issue is unlikely to remain isolated to NSW for very long.

Governance and organisational readiness

Taken together, the transparency, access and guidance provisions signal that digital work systems are now recognised as legitimate areas of WHS regulatory inquiry.

For PCBUs, practical readiness may involve understanding

• Which digital tools influence work practices

• Where systems are hosted and governed

• How access requests could be managed

• Do current systems allow retrieval of information

• Which internal functions oversee system architecture

• Whether vendor contracts support WHS transparency

Most organisations won’t need to build anything new to prepare for these changes. The real task is understanding what digital tools you already use, where they sit in your organisation, and how to explain the way they influence everyday work

Organisations can benefit from maintaining a high-level digital system map, identifying key data flows, nominating internal technical contacts and documenting how exportable WHS relevant information can be retrieved if required. These preparatory measures reduce complexity during SafeWork NSW engagement.

When considered alongside the duty changes discussed in Part 1 of the series, these provisions illustrate both the substantive and procedural elements of the WHS legislative reform.

Final perspective

So, the takeaway here isn’t that regulators now have sweeping digital powers, they don’t.

What the Act delivers is a more structured and predictable way for SafeWork NSW to look at how digital tools influence work and safety.

For organisations, it’s about being prepared and being able to explain how your systems shape everyday work. That’s increasingly part of mature WHS governance and it’s where most PCBUs already have a strong starting point.

Lane Safety Systems continues to monitor regulator guidance development in this area and supports organisations in integrating emerging digital work system considerations into practical WHS governance frameworks.