NSW Work Health and Safety law update

Work Health and Safety Regulation changes

Key changes made by the Work Health and Safety Regulation 2025 include:

Amended duty to manage psychosocial risks in accordance with the hierarchy of control measures

Reg 55C has been amended to require psychosocial risks to be managed in accordance with the hierarchy of control measures set out in reg 36 of the Work Health and Safety Regulation. This is a departure from the model Work Health and Safety Regulation which excludes the application of the hierarchy of control measures from the psychosocial risk management duty. The NSW Regulations are now aligned with changes to reg 55C already adopted in Queensland, the Australian Capital Territory, the Northern Territory, South Australia and the Commonwealth jurisdiction.

New duty to share information for inclusion on the Silica Worker Register

The Work Health and Safety Regulation contains a new information sharing duty (introduced by the Work Health and Safety Amendment (Silica Worker Register) Regulation 2025) for PCBUs involved in high risk processing of crystalline silica substances (CSS). The new duty is likely to apply to a range of PCBUs involved in the crushing, cutting, grinding or drilling of CSS (not limited to PCBUs involved in tunnelling projects), given the broad meaning given to high risk processing of a CSS under the WHS Regulation (see Part 8A.1). The Silica Worker Register and the new information sharing duty will commence on 1 October 2025.

The information required to be given to SafeWork NSW (as soon as reasonably practicable and no more than 28 days from the date the processing of a CSS that is high risk commences) includes:

• The name, date of birth, phone number and email address of each worker carrying out the processing of a CSS that is high risk.
• The location of the processing of a CSS that is high risk, the date the processing commenced, whether the processing involves or is associated with the construction of a tunnel, and if so, the name of the project.
• Whether, in the previous 12 months, the PCBU engaged a person to undertake health monitoring of workers carrying out processing of a CSS that is high risk, and if so, the details of the person so engaged.

Other changes brought about by the Work Health and Safety Regulation 2025 are summarised in a table published by SafeWork NSW here.

New duty for PCBUs using digital work systems

Further changes to work health and safety law in NSW are proposed in the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (Reform and Modernisation Bill) introduced to Parliament on 6 August 2025. If passed, the Reform and Modernisation Bill will insert a new duty in the Work Health and Safety Act 2011 (NSW) (WHS Act) for PCBUs that use digital work systems to allocate work and will expand the rights of WHS entry permit holders in respect of digital work systems. The Bill defines a digital work system as an algorithm, artificial intelligence, automation, online platform or software. This is potentially a very broad definition and could apply to many businesses, not just those businesses that use apps to allocate jobs to gig workers.

The proposed new duty under the WHS Act (section 21A) will require a PCBU that uses a digital work system to “ensure, so far as is reasonably practicable, that the allocation of work by or using the digital work system is without risks to the health and safety of any person”. Without limitation, this requires the PCBU to consider whether the allocation of work by or using a digital work system creates or results in any of the following risks:

• Excessive or unreasonable workloads for workers
• The use of excessive or unreasonable metrics to assess and track the performance of workers
• Excessive or unreasonable monitoring or surveillance of workers
• Discriminatory practices or decision-making in the conduct of the business or undertaking

The Reform and Modernisation Bill also proposes to expand the rights that may be exercised by WHS entry permit holders while at a workplace. PCBUs will be required to provide permit holders with reasonable assistance to access and inspect a digital work system relevant to a suspected contravention. This may enable a permit holder to inspect code or algorithms used in the digital system, performance metrics, records, data logs or audit trails produced by a digital system.

While NSW is currently the only jurisdiction to have introduced a bill containing a digital work system duty for PCBUs, further developments in WHS laws to address the health and safety impacts of technological advances are likely. Safe Work Australia’s Research and Evaluation Strategy has identified technological advances (e.g. AI, automation, automated machines) as a primary focus area. The Senate’s Select Committee on Adopting Artificial Intelligence has recommended that the Australian Government extend the existing WHS legislative framework to workplace health and safety risks posed by the adoption of AI. The rise of technology as a key issue affecting organisations globally from a work health and safety perspective is also discussed in our recent article Global WHS trends | Australia | Global law firm | Norton Rose Fulbright.