Artificial Intelligence (AI) and HR
When trying to navigate your way through all of the noise around AI, a good place to start is the changing legislative landscape in NSW regarding digital work systems. These are defined as meaning an algorithm, artificial intelligence, automation or online platform. This includes email.
NSW Sets the Tone…
The Work Health and Safety Amendment (Digital Work Systems) Bill 2026 (NSW) was recently passed into law and made changes to the Workplace Health and Safety Act 2011 (NSW). The purpose of this legislative change was grounded in seeking to ensure that workers’ health and safety is not put at risk from the use of digital work systems in a business. This is now expressly listed as part of the business (or undertaking’s) primary duty of care. This means that an employer now needs to take reasonable care such that digital systems (as defined above) do not put the health and safety of workers at risk. Where it is not possible to elimate risk, then it is necessary to ensure that risk is mitigated in so far as is reasonably practicable.
You can access the Bill in full via this link:
https://legislation.nsw.gov.au/view/pdf/bill/65e4051b-7798-4270-a559-3e6cc945d28d
Useful Examples
The newly updated OHS law in NSW includes handful of useful examples of when digital systems (such as AI) might pose risk to a worker’s health and safety in relation to the allocation of work. This inclusive list features the following which are increasingly aligned to psychosocial safety:
- Where there are excessive or unreasonable workloads (such as from automated systems that might increase risk of worker stress)
- Use of excessive or unreasonable metrics (ie: KPIs) to track a worker’s performance (which can lead to unfair or inaccurate performance ratings as well as exhaustion and fatigue)
- Use of excessive or unreasonable monitoring or surveillance of workers at work (which may cause uncertainty in relation to job security)
- Unlawful discrimination or decision making (for example: algorithms that inadvertently re-enforce discrimination or victimisation on the grounds of a protected attribute such as gender, sexual orientation, disability, race or responsibilities as a carer).
Trade Union Right of Entry (to cover AI)
Trade Union Officials holding a Work Health and Safety Permit in NSW can now also exercise right of entry to a workplace in relation to AI. Specifically, a permit holder can now also seek entry to investigate a dispute that may arise in relation to a digital work system(s). In practice, this means that if a worker alleges that the employer (organisation) is in breach of the requirements regarding digital work systems – including in relation to the allocation of work as it applies to workload/metrics/surveillance/discrimination – then a Union Official may seek to enter the workplace with at least 48 hours to investigate the alleged contravention. The employer is also required to provide reasonable assistance to the Union Official in order to enable the access a digital work system for the purposes of investigation. Guidelines will be published by SafeWork Australia to flesh out the practical application of what reasonable access looks like regarding inspection and investigation. Watch this space.
AI and HR Action Steps
To get on the front foot with regard to AI in your organisation, there are a handful of activities that you can engage with right now from an HR perspective:
- Amend your existing OHS Policy to include digital work systems. This should reference a commitment to the provision of a safe work environment as it applies to the use of AI enabled tools in the workplace
- Conduct Risk Assessments on your existing AI enabled tools. This would be especially important for those employers who have these in place for rostering/scheduling as well as those which monitor productivity and efficiency. Where risks emerge including those related to psychosocial safety and related hazards, identify action steps you can engage to mitigate risk accordingly
- Update your existing OHS Inspection Checklists to include an assessment of digital work systems as part of periodic OHS inspections
- Consult with your people on the introduction of AI enabled tools may also be caught by Modern Award terms. This is particularly the case in relation to ‘introduction of workforce change with significant effects’ which apply to technology. If you are contemplating a new technology platform that is AI enabled, consider the consultation piece before you press go and seek professional HR advice on how to ensure that you are industrially aligned to Modern Award requirements. These can be quite prescriptive and do require information to be presented to affected employees in writing about the nature of the change proposed.
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