New AI related changes to NSW Work Health and Safety laws

Is a new specific duty required?

In introducing the Bill into the Upper House of the NSW parliament, the NSW treasurer gave the basis reason for the new duty as part of his second reading speech:

“This bill is designed to put beyond doubt that the use of digital systems in modern workplaces such as algorithms or online platforms are covered by the State's work health and safety framework.”

In shepherding the Bill back through the NSW Lower House, Ms Cotsis said:

“Businesses have increasingly equipped themselves with digital tools to drive productivity, and we absolutely welcome that.  However, we must ensure that work health and safety obligations do not change.  If PCBUs delegate tasks to an algorithm which creates harm, the bill clarifies that managers are responsible for the human impact.  I acknowledge concerns about businesses' private information.  The technology is new and so are the concepts discussed and debated.  Modernising our work health and safety framework and keeping workers safe are at the heart of the bill.  Every worker deserves to be in a safe workplace. … The bill ensures the safety and dignity of workers in the digital age.”

Many commentators argue that the existing duty imposed by section 19 of the WHS Act was already broad enough to capture the introduction of new systems and processes, including the increasing use of artificial intelligence in the workplace.  The broad, existing formulation of this primary duty clearly covers the use of new technologies, with the introduction of a new, specific duty being unnecessary. 

Greater access for WHS entry permit holders

Most of the, at times, very strong criticism of the changes introduced by the Bill, is reserved for the enhanced access rights given to WHS entry permit holders. 

Currently under the WHS Act, WHS entry permit holders (usually union representatives) can enter a workplace where there is a suspected breach of the WHS Act. These changes will expand those rights to allow permit holders to require “reasonable assistance” to access and inspect digital work systems “relevant to” a suspected breach of WHS obligations.

Business groups have strongly opposed these changes on the basis that they may allow union representatives access to internal emails, payroll and HR files, allowing those representatives to have access to worker personal information.  Other stakeholders have said that the changes are well-meant, but are fundamentally flawed by treating digital systems in this separate way.

The NSW coalition parties have come out strongly against these changes, saying the terms used are simply too broad, and they have committed to repealing the changes if they are able to form a government after the next election.

Not surprisingly, Unions NSW have hailed the changes as a breakthrough for workers, by acting to “curb unsafe, AI-driven work practices, rostering and invasive workplace surveillance, representing a landmark victory for workers.”

Implications for employers

Employers’ systems for safely and appropriately allocating work, monitoring worker performance and assessing that performance are already subject to regulatory scrutiny under both employment and WHS laws.  These changes to the WHS Act mean that the technologies used by NSW businesses to perform those tasks, will now come under significantly increased scrutiny – with respect to the data that can easily be produced in relation to those systems and who is entitled to access it.

The first issue that those businesses will need to grapple with is to identify what “digital systems” they use and which of those systems are likely to be subject to these changes.  The wide definition of “digital systems” brings with it a risk that a much broader set of HR systems involved in the allocation of work in some way may be caught than first considered.

Once those systems have been identified, then businesses will need to take a view as to what may be covered within the terms “excessive or unreasonable workloads for workers”, “excessive or unreasonable metrics to assess and track the performance of workers”, and “excessive or unreasonable monitoring or surveillance”.  While those terms are broad and undefined, employers may be assisted in the first instance by other regulatory guidance material (such as Codes of Practice for psychosocial hazards and fatigue management).

Many employers will eagerly await the guidelines to be published as to what reasonable access they will need to provide to WHS entry permit holders to their digital work systems and what this may mean for the use of artificial intelligence in their operations.  Importantly, once SafeWork NSW has published draft guidelines, employers and employer groups will have the opportunity to engage in consultation about what “reasonable access” and “relevant to the suspected contravention” mean.

Employers operating in NSW should start now to consider how these changes may affect their operations and plan accordingly.  In doing so, employers should consider the following:

Risk management

• Undertake an audit of what digital work systems are currently being used and how they are used to allocate work.
• Determine whether work allocation generated by their digital work systems align with requirements under their other safe working practices (such as fatigue management and managing psychosocial risk).
• Confirm that the implementation and use of digital systems are subject to the same risk management process as all other systems in place in the workplace, including –
  • conducting risk assessments to identify any hazards that may arise from the use of those systems, assess the risks that may arise from those hazards, and then eliminate (if reasonably practicable) or minimise those risks through adequate control measures (given digital systems and their use will change rapidly, it is important that periodic risk assessments are undertaken at appropriate intervals); and
  • consultation with workers who use the systems, or whose health and safety may be impacted by them – consulting with workers as to what hazards may arise from use will be key, particularly around potential psychosocial hazards arising from overall workload, the pace of work, monitoring practices, worker autonomy, and the support provided to workers.
• Ensure that there is human oversight on the use of digital work systems.
• Determine what does and does not constitute “excessive or unreasonable workloads for workers”, “excessive or unreasonable metrics to assess and track the performance of workers”, and “excessive or unreasonable monitoring or surveillance”, and why.

Response to access requests

• Determine what could constitute “reasonable access” - particularly in the context of other considerations such as privacy legislation and contractual confidentiality obligations – to assist consultation processes with SafeWork NSW on its draft guidelines.
• Consider how the business could respond to any request received to access those systems and then how it could provide such access.
• Train managers and other workers as to what these changes will require going forward and develop guidelines as to how requests for access will be dealt with and responded to.
• Where requests to access to digital systems are received, whether accepted or declined, keep a record of the basis of those requests, what steps are taken by the business in response and why.