NSW's Digital Work Systems Law: What It Means for Incident Investigations

In February 2026 New South Wales passed the first law in Australia that treats the software allocating work as a work health and safety matter. The Work Health and Safety Amendment (Digital Work Systems) Act 2026 received assent on 18 February 2026. Most of it is not yet in force, but the duties are written, and other states tend to follow NSW on WHS.

This article covers what the Act says, what has commenced, and what an investigator should do differently when a digital system was part of the chain of events.

What the Act says

The Act defines a digital work system as "an algorithm, artificial intelligence, automation or online platform". That covers rostering software, AI-driven scheduling, gig platforms, performance dashboards that set targets, and monitoring tools.

It adds two duties for a person conducting a business or undertaking (PCBU):

• Section 19(3)(c1) extends the primary duty of care to the PCBU's use of digital work systems. Workers must not be put at risk by them.
• Section 21A requires a PCBU, so far as is reasonably practicable, to see that a worker's health and safety is not put at risk by work allocated through a digital work system. The section lists risks the PCBU must consider. Commentary from law firms names excessive workloads, unrealistic performance metrics, excessive monitoring, and biased or discriminatory decisions.

There is also a new power for union entry permit holders. Under section 118(1)(a) they can require a PCBU to assist them to access and inspect a digital work system relevant to a suspected contravention, on 48 hours to 14 days notice. SafeWork NSW must publish guidelines on that power first (section 118A).

What has commenced

Only the provisions that let SafeWork NSW develop the guidelines have commenced. The duties in sections 19(3)(c1) and 21A, and the entry power, commence on proclamation after the guidelines are published. The entry power cannot start earlier than one month after the first guidelines are published. No calendar date has been set. SafeWork NSW's own page on the Act is the place to check.

Why it matters to investigators now

You don't need the Act in force to be investigating these incidents. A fatigue event where the roster was built by software, a manual handling injury on a shift where the algorithm set a pick rate, a psychosocial claim from a worker whose performance was scored by a dashboard: these are already arriving. The Act just makes the organisational question explicit, and it tells you how the regulator will frame it once the duties commence.

What changes in an ICAM investigation

ICAM already has a home for this. The work allocation decision is an organisational decision, whether a person or a system made it. What changes is the evidence you collect and where the factors land.

• PEEPO planning. Under Equipment, treat the digital system as plant. Who configured it, what the settings were on the day, when they last changed, and whether anyone reviewed the change. Under Policies and procedures, find the risk assessment for the system itself. Under most organisations, there isn't one yet.
• The factual timeline. System decisions are events. The roster being generated, a target being raised, a shift being reallocated at 05:40: these go on the timeline with a timestamp, the same as a radio call.
• Task/Environmental Conditions (TE). The conditions the system created: workload, pace, hours, the human factors codes (HF) for fatigue and time pressure.
• Organisational Factor Types (OFT). The decision to deploy the system, the parameters set, the absence of a review process, management of change when the settings moved. This is where section 21A is pointing.
• Absent/Failed Defences (DF). The human check that was supposed to review the roster and didn't, the override that nobody was trained to use, the fatigue limit the software wasn't configured to apply.

A finding that stops at "the worker was fatigued" or "the worker didn't raise it" is an Individual/Team Actions (IT) finding sitting on top of a system decision nobody examined. Once the Act commences, the regulator will examine it.

What to do before proclamation

• List the digital work systems that allocate, pace or score work across the business. Most organisations have more than they think.
• Give each one a risk assessment, the same as any other plant, covering workload, metrics, monitoring and bias.
• Add a question to the investigation terms of reference: did a digital system set or change the conditions of the work?
• Make sure the system's configuration history is retained. Investigations into these events need the settings on the day, not the settings now.

ICAM Australia covers organisational factors and human factors in ICAM for Lead Investigators and in the ICAM Governance program for senior leaders. For in-house programs built around your own systems, contact the team.

FAQs

Is the NSW Digital Work Systems Act in force?

Partly. It received assent on 18 February 2026. Only the provisions allowing SafeWork NSW to develop guidelines have commenced. The duties on PCBUs and the entry permit power commence on proclamation after the guidelines are published.

Does it apply outside New South Wales?

No. It amends the NSW Work Health and Safety Act. The Act includes a review trigger if Safe Work Australia develops model WHS laws on the same subject, so a national version is possible but not yet proposed.

Does ICAM need a new category for digital systems?

No. A system decision is an organisational decision. It's analysed under Organisational Factor Types, with the conditions it created under Task/Environmental Conditions and the missing checks under Absent/Failed Defences.