What to Expect from SafeWork NSW’s Digital Work Systems Guidelines
7 min read
What to Expect from SafeWork NSW’s Digital Work Systems Guidelines
The Work Health and Safety Amendment Digital Work Systems Act 2026 NSW marks a significant development in how workplace health and safety law applies to algorithms, artificial intelligence, automation and online platforms. The definition of a digital work system under the legislation means, an algorithm, artificial intelligence, automation or online platform.
In practical terms, it means WHS regulators are now looking much more closely at the digital systems businesses already rely on every day. In practice, digital work systems include any tool that allocates tasks, directs workers, monitors performance, sets productivity expectations or influences workload through automated logic.
Although the powers exist in the Act, they cannot commence until SafeWork NSW issues the section 118A guidelines, meaning those guidelines will define how digital system oversight works in practice. This creates a distinctive situation where the legal powers exist, but the practical rules do not, meaning the guidelines, not the Act, will determine how digital system oversight operates in the real world.
Because these systems already influence workload, task allocation and performance pressure, the guidelines will have immediate practical consequences for many workplaces in NSW. The guidelines will therefore determine how far regulators can investigate automated decision making and how organisations must evidence governance of those digital systems.
Significantly, the legislation prevents WHS entry permit holders from exercising these new powers until the guidelines are published. In effect, the powers legally exist but cannot be used until SafeWork NSW explains how they must operate. This applies only to WHS entry permit holders, SafeWork NSW inspectors already hold separate, established standing inspection and information gathering powers under Part 9 of the WHS Act.
In other words, the powers exist in the Act but cannot operate until SafeWork NSW formally explains how they must be used, this indicates a deliberate choice about how and when these new powers should operate. The regulator’s guidelines will determine how access powers are applied, what reasonable assistance looks like in practice, and how commercial and privacy concerns are balanced against WHS regulatory control.
Guidance Led Model Flexibility with Transitional Risk
The amendments use a guidance led approach rather than spelling everything out in WHS legislation. This gives SafeWork NSW flexibility to adapt as technology evolves, but it also means organisations must make decisions in a period where guidance is still emerging. However, flexibility at the WHS legislative level often shifts complexity into the implementation phase. This means businesses may need to interpret WHS obligations before full clarification is available, increasing the importance of active governance rather than reactive compliance.
Experience following earlier WHS reforms demonstrates that when WHS legislative change precedes detailed regulator guidance, a period of transitional uncertainty can emerge. After the remake of the WHS Regulation 2017 into the WHS Regulation 2025 (NSW), SafeWork NSW advised that additional guidance material would be developed to support industry understanding. During that period, organisations were required to interpret updated obligations without comprehensive, published clarification.
Similarly, targeted amendments affecting particular sectors, including gig economy and food delivery regulation, involved extended consultation and staged development of supporting material before WHS regulatory expectations became settled.
The practical consequence is not regulatory failure but is a characteristic of guidance based reform. Where operational clarity depends on guidance rather than detailed WHS statutory prescription, organisations may find themselves navigating a period of interpretive uncertainty. In that environment, waiting for perfect clarity is not a sound strategy.
Disciplined and structured WHS governance becomes far more important than a reactive, catch-up compliance approach triggered only by WHS regulatory intervention. Understanding how SafeWork NSW has historically structured regulator issued guidelines provides useful insight into what businesses can reasonably expect as the digital work systems framework is developed.
For that reason, organisations should not wait for the guidelines before they begin reviewing how digital systems influence workload and WHS risk within the workplace.
How SafeWork NSW typically structures statutory guidelines
When SafeWork NSW issues guidelines under statutory authority (as distinct from Codes of Practice), they are typically framed as operational instruments that clarify how a power will be exercised.
These documents usually begin by identifying the legislative authority under which they are made, followed by definitions, scope limitations and statements about their legal status. SafeWork NSW tends to follow a consistent pattern here, so businesses will likely recognise the structure when these guidelines are eventually released. They often then move into practical interpretation, rather than creating new obligations, the guidelines explain how existing statutory duties will be applied in a specific context.
In doing so, they often take abstract concepts, like reasonable practicability or reasonable assistance and translate them into clear steps or expectations. Importantly, guidelines interpret how powers will be used, they do not create new legal obligations. This is usually where SafeWork NSW shows how it intends to apply the law in real situations.
Unlike Codes of Practice, which provide broader guidance on achieving compliance, regulator issued guidelines tend to focus more narrowly on procedural fairness, regulatory boundaries and how discretion will be exercised.
Given the sensitivity of digital work systems, particularly in relation to AI logic, performance metrics and commercially confidential data, it is highly likely the section 118A guidelines will follow this structured approach. These systems can influence work in ways that are not always visible to workers or PCBUs, which is why SafeWork NSW is expected to take a cautious and structured approach.
Procedural protections are likely to be a central feature
Section 118A relates specifically to the power of WHS entry permit holders to require reasonable assistance to access and inspect digital work systems relevant to suspected contraventions. These powers apply only to WHS entry permit holders. WHS entry permit holders are union officials authorised under the Work Health and Safety Act to enter workplaces to inquire into suspected contraventions or consult with workers about safety matters. SafeWork NSW inspectors retain separate, broader entry and information gathering powers under existing Part 9 provisions, which are not altered by the change in legislation.
Historically, SafeWork NSW guidance on entry and inspection powers places considerable emphasis on procedural safeguards. This is consistent with their usual approach, firm about the powers, but clear about the limits. In practice, this usually means clear notice requirements, defined limits on what can be inspected, confidentiality protections, and a balanced approach to exercising WHS regulatory powers. It would be surprising if the digital work systems guidelines did not carefully articulate the limits of inspection authority. Businesses can reasonably expect clarification about how advance notice operates, what information may be requested, how commercially sensitive material is handled and what safeguards apply to worker personal data.
Importantly, the guidelines are likely to make clear that any access sought must be directly connected to the suspected contravention and limited to what is reasonably necessary for that purpose. Privacy and data security considerations will likely be central. The WHS regulator will need to ensure that oversight of digital systems is clearly distinguished from unrestricted access to proprietary algorithms or source code.
Reasonable assistance how defined
A central practical issue for PCBUs will be how the concept of reasonable assistance is interpreted and applied. It’s highly unlikely the guidelines will require blanket disclosure of proprietary source code, that would be inconsistent with the intent of the WHS legislation. This includes systems such as task allocation algorithms, route optimisation engines, automated rostering logic or performance ranking models, where commercial sensitivity is high. Examples of systems where source code will likely remain protected include routing algorithms, worker allocation models and performance ranking formulas.
Businesses should therefore anticipate that the guidelines will shift the focus away from technological secrecy and towards demonstrable accountability for the safety outcomes produced by digital work systems. For example, a business will not be required to disclose its proprietary algorithm, but it would be expected to demonstrate how it has assessed and controlled the fatigue, workload, or time pressure risks created by that system.
What SafeWork NSW is likely to request in practice
The emphasis is likely to fall on functional transparency and the health and safety implications of digital system outcomes. For example, consider a large logistics operator using an automated rostering and task allocation system. Under a commercially confidential mindset, the organisation might focus on protecting the proprietary algorithm itself. Under a functional transparency model, however, the focus shifts to whether the system generates excessive workloads, unrealistic performance metrics or fatigue related risk.
In practice, this would mean being able to demonstrate how task volumes are calibrated, how rest breaks are built into allocation logic, how workload data is monitored for emerging risk patterns, and what governance mechanisms exist to intervene if performance metrics begin to drive unsafe behaviour.
The WHS regulator is unlikely to be interested in the software code itself, it will be interested in whether the system’s outputs create, escalate or control WHS risk and whether the organisation can evidence active oversight of those outcomes. This approach aligns with regulatory oversight and protection of commercially sensitive information, consistent with regulatory practice in privacy, competition and data security domains. In this context regulators focus on how systems operate in practice and the impacts they generate, rather than seeking unrestricted access to underlying proprietary architecture.
If a regulator wanted to understand an algorithmic allocation system, they’d probably start by requesting documentation showing how tasks are assigned, along with examples of recent outputs or workload patterns. It may involve providing explanations of decision making factors, summaries of system logic, supervised demonstrations of allocation processes, or performance metric reports relevant to WHS risk exposure. The objective would be to enable meaningful examination of WHS risk, not to conduct a technical audit of commercial software design.
Consultation will shape the final form
The change in the Act requires SafeWork NSW to conduct public consultation before issuing the guidelines. Historically, significant regulatory guidance has been preceded by exposure drafts, written submissions and targeted stakeholder engagement. Privacy and digital rights organisations are also likely to participate, given the sensitivity of data access. Consultation often involves industry groups, unions and subject matter experts. In other words, it won’t just be a technical exercise, it will be a genuinely contested policy space.
Digital work systems sit at the intersection of workplace regulation, technology governance and privacy law. The consultation process is therefore likely to attract strong engagement from employer groups, digital platform operators, unions, technology associations and civil liberties advocates.
For those involved in the consultation processes this represents a significant opportunity to influence how inspection powers are defined and how safeguards are constructed. Industry submissions can meaningfully influence how reasonable assistance is defined, particularly around transparency expectations and limits on access.
Because the new entry powers cannot commence until the guidelines are published, the consultation phase will carry real operational significance and urgency.
Enforcement positioning will be subtle but clear
Although regulator guidelines are generally presented as compliance assistance instruments, previous SafeWork NSW publications indicate that enforcement intent is often conveyed indirectly through references to documentation standards, audit mechanisms and governance controls.
Examples may include
WHS risk assessments specific to digital systems
Algorithm change logs or audit trails
Records showing how workload impacts are monitored
Policies covering algorithmic decision making and escalation
Psychosocial risk assessments linked specifically to algorithmic workloads
Governance documents showing oversight of digital decision making processes
Rather than spelling out enforcement intent, SafeWork NSW often signals its expectations indirectly, usually through the types of documents or systems it expects businesses to have in place. In the context of digital work systems, it is reasonable to expect references to documented WHS risk assessments, monitoring of workload impacts, review of performance metrics, and oversight of surveillance practices.
There could also be intersection with psychosocial risk management obligations. The underlying message will likely be that digital management systems must be governed with the same rigour as physical plant or hazardous processes.
Transitional or class-based application is probable
The WHS legislation expressly allows the regulator to issue guidelines on an interim or ongoing basis and to limit their application to a particular class of persons, work or workplaces. This provides SafeWork NSW with significant flexibility in how the framework is introduced. Rather than applying uniformly across all industries from the outset, the regulator may choose to target specific categories of businesses or work arrangements where digital work systems are most embedded or where WHS risk exposure is more pronounced or where risk exposure is demonstrably higher.
This would include industry sectors forming defined categories of PCBUs identified through workers compensation trends, serious injury data, or other regulatory information.
While the legislation applies broadly, the NSW government specifically mentioned recently the growing number of gig workers, such as food delivery drivers and riders who receive work instructions via apps, a clearly defined category of work arrangement that will benefit from the reforms. It also referenced other workers such as warehouse and home care workers who are being managed through digital systems. This could result in an initial focus on defined categories of businesses or work types that rely heavily on algorithmic allocation, automated performance metrics or digital monitoring systems. Interim guidelines may also be issued to establish baseline expectations while broader consultation continues or while practical implementation issues are assessed.
For example, SafeWork NSW may initially target categories of businesses or work types before expanding expectations to warehouse, logistics or home care sectors. Historically, following substantial WHS amendments, SafeWork NSW has balanced the need for regulatory clarity with a measured and staged rollout.
Businesses should therefore expect that the first version of the section 118A guidelines may evolve over time, particularly if issued initially in relation to a specific class of persons, work or workplaces before broader application.
What this means for NSW PCBUs
The message for businesses is straightforward, digital management systems now sit squarely within WHS governance. Even before the guidelines are released, the legislative direction is clear, digital work systems are now squarely within WHS governance. Organisations that allocate work using algorithms, track performance through automated metrics or monitor workers digitally should treat these systems as part of their safety management framework.
Preparation should include reviewing how work allocation occurs, assessing whether performance metrics create unreasonable workloads, evaluating surveillance practices for psychosocial impact, and documenting WHS risk assessments relating to digital systems. Transparency of process and accountability for outcomes is suggested to be central themes once the guidelines take effect.
Practical early actions for PCBUs to consider include
Mapping all digital systems that influence task allocation, monitoring or decision making
Running a WHS risk assessment specifically on algorithmic workload and psychosocial pressures
Preparing plain language explanations of how key algorithms or allocation rules operate
Documenting how performance metrics are used and monitored for adverse WHS effects
Reviewing digital systems vendor contracts to ensure cooperation in providing reasonable assistance
Ensuring privacy, data security and WHS governance arrangements align with expected guideline requirements
Conducting psychosocial risk assessments specifically linked to digital management tools
Reviewing governance processes for oversight of algorithmic decision making
It is suggested that the commencement mechanism effectively links the operation of inspection powers to the publication of the guidelines. Once those guidelines are issued, the associated compliance and enforcement powers are likely to become active. Organisations that undertake preparatory work in advance will therefore be significantly better positioned than those responding only after engagement by SafeWork NSW inspectors or WHS entry permit holders.
Regulatory intent oversight, not technology prohibition
It is suggested, the structure of the amendments suggests that the Government’s intent is not to restrict technology, but to ensure that algorithmic systems do not undermine health and safety in the workplace. The focus is accountability, ensuring that digital systems do not create excessive workload, unreasonable performance expectations, discriminatory decision making or intrusive surveillance that elevates WHS risk.
The forthcoming guidelines are expected to reflect this balancing exercise, supporting effective regulatory oversight while safeguarding legitimate commercial interests. For NSW businesses, the message is straightforward, digital work systems are no longer merely operational tools, they are safety governance instruments.
Most organisations will be far better off getting ahead now rather than trying to retrofit compliance under pressure. Rather than an additional compliance burden, the guidelines represent an opportunity to modernise WHS oversight of digital systems. Organisations that manage digital systems with the same rigour as physical plant and equipment will be best positioned for the regulatory shift.
It is suggested that the guidelines are not an additional compliance burden, they are an opportunity to modernise WHS governance in line with how work is actually organised today.