Insights & News

February 19, 2025

The following article is an extract from our publication, the Kingston Reid Review: Your Guide to 2025. The full link to this publication can be found here.

When it comes to workplace relations, the last 12 months have been a wild ride, with a host of significant labour hire reforms, changes to the multi-employer bargaining framework, a new ‘right to disconnect’ for workers, expanded union delegate rights and the introduction of a federal wage (and superannuation) theft offence, amongst many other changes.

The Federal Government’s Closing Loopholes reforms, introduced in two tranches over the course of 2024 (with a range of commencement dates), proved an even greater shakeup of Australia’s workplace relations system than the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (SJBP Act).

Of course, the first part of 2025 will set the stage for a federal election, so to an extent, the future is uncertain until the outcome of the election is known. But for now, join us as we take a quick look at what employers can expect in 2025.

Working with our clients as they deal with enterprise bargaining and protected industrial action has kept our national team extraordinarily busy in 2024 across the board, with no signs of slowing into the new year.

On a more positive note, for some clients, the expansive legislative reforms over the last 12-18 months have acted as something of a catalyst – offering up a unique opportunity to support clients with a more strategic conversation about their industrial instrument landscape and to look at some really exciting and novel strategies to meet their forward-looking objectives.

In September 2024, the Full Bench of the Fair Work Commission (FWC) ruled on the jurisdictional scope of the FWC to deal with disputes under s240 of the Fair Work Act 2009 (Cth) (FW Act), shedding light on what the FWC will deem to be a dispute “about the agreement” for the purposes of s240 and when it can be said that those parties are “unable to resolve the dispute”.

Essentially, the FWC clarified in Qube Ports[1] that s240 of the FW Act encompasses disputes about both the content and the process of bargaining. As such, bargaining employers should be prepared for the possibility that disputes about the bargaining process, not just the content of agreements, can be brought before the FWC, following the decision.

This means that procedural disagreements, such as the method of bargaining, may be subject to the FWC’s intervention. However, it is important to note that the FWC can only make a recommendation and cannot arbitrate an outcome without the agreement of all parties.

Multi-employer bargaining
After a reasonably slow (and mostly, non-adversarial) uptake in the second half of 2024, four major black coal industry operators and APESMA[2] compelled the FWC to analyse the multi-employer bargaining provisions under the microscope in the Ulan Coal Mines[3] case – the first significant contested application of its kind since the commencement of the SJBP Act.

Without a definition under the FW Act, the FWC found that the term “common interests” should be given its ordinary meaning. That is, “common” means “shared, joint, united” and “shared or joint” consistent with previous decisions. Similarly, “interests” means “concernment”, “business, concerns or cause”, “goals, principles and business concerns” and “characteristics or matters that impact or influence the organisation”. That is to say that where the employers have shared or joint business concern, goals or principles (among others), it will be difficult to argue against the common interest.

The FWC also identified that the “common interests” must be clearly identifiable, or plainly discernible or recognisable, however they need not be self-evident. The matter is on appeal and will be listed for hearing before a Federal Court Full Court in March 2025.

If you are an employer who is faced with an application for a single interest authorisation, understanding the differences and similarities between you and your co-employers is important. However, the next layer of that analysis needs to be on developing how these matters impact bargaining interests, goals and objectives such that it may be a point of distinction from another entity who may be at the bargaining table. Through this approach, a more refined defence to an application, which not only goes to distinguish an employer from its counterparts, but also informs how those distinctions will impact an employer’s bargaining stance, interests, goals, objectives and drivers and ultimately mitigate against a finding that multi-employer bargaining should occur, will be possible.

Whether this line of reasoning prevails before the Federal Court is yet to be seen.

So, with some significant cases expected to be heard in the early part of 2025, there will be an opportunity for the FWC and the courts to shed some much-needed light on the intended operation of the multi-employer bargaining rules, amid the potential for increased contestation in the coming year. Whilst most of the multi-employer bargaining cases have to date been resolved by consent, it’s safe to expect that 2025 will be a year in which we see more of these applications contested, which will, at least, lead to clearer guidelines and the setting of precedents for future applications.

Intractable bargaining provisions
Back in mid-2023, the intractable bargaining provisions replaced the old schemes of issuing “serious breach declarations” and “bargaining related workplace determinations”, under which the FWC could make “serious breach declarations” (i.e. where there were serious and sustained contraventions of a good faith bargaining order that significantly undermined the bargaining process), which then gave the FWC scope to make “bargaining related workplace determinations” if negotiations remained unfruitful. The language in the old schemes (think “serious and sustained”, “significantly undermined”, “exhausted all other reasonable alternatives to reach agreement” and “agreement will not be reached”) created a high bar for applicants to meet in order to satisfy the FWC that a “serious breach declaration” should be made.

The upshot is that the old schemes were not used and the FWC was never called on to make a “serious breach declaration”. However, under the current intractable bargaining scheme, it is significantly easier for employees, unions and employers to request the FWC’s intervention in making bargaining determinations.

Throughout 2024, a number of intractable bargaining declaration applications were made, and our prediction is that this will continue to be a really interesting area to watch over the next 12 months.

These new provisions represent one of the most fundamental shifts to the industrial relations landscape in decades, as there is now a realistic alternative to impasse or agreement – with a readily accessible pathway for the FWC to determine bargaining outcomes.

The intractable bargaining framework allows the FWC to make an intractable bargaining declaration, in effect bringing bargaining to an end and setting the stage for the FWC to arbitrate bargaining outcomes, where it is satisfied that:

• it has dealt with the dispute through the existing bargaining dispute resolution processes (under s240 of the FW Act)
• that there is nevertheless no reasonable prospect of the parties reaching an agreement; and
• it is reasonable in all the circumstances to make the declaration.

Having done so, the FWC must substantively resolve bargaining by making an intractable bargaining workplace determination “as quickly as possible” – although some post-declaration negotiating period can be afforded to the parties.

The “post declaration negotiating period” assumes some significance, given that the workplace determination ultimately made by the FWC must include any “agreed terms” between the bargaining representatives as defined in s274(3) of the FW Act. This requires an assessment of the agreed terms at three stages including at the end of the post declaration negotiation period. Moreover, following the passage of the second tranche of Closing Loopholes reforms, an intractable bargaining workplace determination cannot include any term which is less favourable to any employee (or employee organisation) than a term of the existing enterprise agreement dealing with the same matter (other than a term that provides for a wage increase). The FWC’s approach to its new powers is important for all employers who engage in enterprise bargaining to be across.

2024 was also a year of reckoning for the CFMEU, with one of the most notable developments being the administration of the Construction and General Division of the union. Mark Irving KC took on the formidable task of cleaning up Australia’s most notorious union, amidst allegations of bribery, corruption, and links to outlaw motorcycle gangs. These revelations have sparked widespread controversy, igniting urgent calls for reform, and exposing a troubling picture of union leadership plagued by criminal influence and self-interest.

These developments raise pressing questions about the state of workplace law in Australia, sparking renewed debate over union oversight and regulation, and reinforcing the need for stronger mechanisms to prevent and address misconduct within unions[4].

Meanwhile, whilst the CFMEU is somewhat subdued, there are several other unions who are actively stepping into the “void”, particularly on the Australian east coast within the construction industry, where unions such as the EPU, CEPU and AWU are taking advantage of an opportunity to grow their existing membership bases. Alongside the changes in the representatives sitting across the bargaining table, we have also seen the continuation of a post-COVID era trend, in which increasingly assertive unions are more aggressively calling for significant wage increases that many employers may be unable to afford, particularly in light of current economic conditions.

Wage theft
New wage theft provisions commenced operation on 1 January 2025, aimed at criminalising intentional conduct that results in the failure to pay an employee their minimum statutory entitlements (that is, entitlements arising under the FW Act, or a Fair Work instrument such as a modern award or enterprise agreement), with penalties for “related offences” also on the table.

Importantly, employees, officers and agents of an employer may be implicated by these related offence provisions, with penalties including a term of up to 10 years’ imprisonment or significant fines being imposed. Further, whilst non-payment of superannuation was initially excluded from the new wage theft provisions, readers may recall that a last-minute deal with the Greens in early 2024 secured amendments to extend the new offence to unpaid superannuation. As a result, superannuation entitlements for the vast majority of national system employees will have an additional layer of protection afforded to them by the new criminal offence.

These amendments and the serious contravention regime under the FW Act significantly raise the risk/penalty profile associated with underpayments, and our team has been working tirelessly with clients during 2024 to help them understand how these new provisions will apply and to ensure their payroll and HR processes and systems are compliant and functioning as intended.

We have also been seeing underpayment claims filed in state and territory courts with federal jurisdiction, seeking penalties in relation to unintentional underpayments. These underpayment claims are designed to see pay contraventions addressed in a shorter timeframe than filing in the Federal Court or Federal Circuit and Family Court of Australia. In some cases, these local courts are being asked to consider significant and serious contraventions as forming the basis of relief (even where the actual underpayment is on the low end of the scale).

The goal is reasonably clear; start to stack up smaller contraventions so that, if a large-scale underpayment arises, there is a history of contraventions on the books to justify imposing large penalties on employers.

With this in mind, early 2025 is a good time to ensure your organisation’s systems and processes are working well together, noting also that unions are able to exercise right of entry rights to investigate suspected pay contraventions, in addition to the broader rights workplace delegates already have in place.

Regulated Labour Hire Arrangement Order
In contrast to the much more restrained uptake of multi-employer bargaining, the Regulated Labour Hire Arrangement Order (RLHAO) framework has been rapidly embraced, with well over 40 applications having already been made. These primarily relate to the black coal sector in New South Wales, with further applications relating to warehousing, retail and aviation and meatworks.

While several orders have already been made (and decisions published), none of these concluded cases involved any significant challenge to the respective application. Accordingly, the occasion has not arisen for extensive guidance to be provided about the operation of the statutory scheme.

The first major test of the provisions will occur early this year with a Full Bench hearing listed for 20 to 31 January 2025, in relation to several BHP entities. That said, while this case is expected to involve detailed examination of the distinction between labour hire and service provision, there is less focus upon questions about whether it is “fair and reasonable” to make an order. We will continue to see much development in this space over the next 12 months.

Of course, even apart from the present uncertainty around when an order might be made, various other aspects of the RLHAO scheme are equally complex and perhaps uncertain, and it may be some time before these “downstream” issues are tested. For example, how will the FWC resolve disputes around the calculation of the “protected rate of pay”, and what precisely is the breadth of its capacity to make orders about these matters? How exactly will the exceptions operate and particularly those concerning short-term arrangements? How will the (on its face, incredibly broad) anti-avoidance scheme be interpreted by the courts?

[1] Qube Ports Pty Ltd T/A Qube Ports v Construction, Forestry and Maritime Employees Union [2024] FWCFB 370.
[2] The Association of Professional Engineers Scientists and Managers Australia.
[3] 3. Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia  Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 253.
[4] We note that the legislation and associated legislative instrument through which the administration was achieved are the subject of a challenge in the High Court.

The following article is an extract from our publication, the Kingston Reid Review: Your Guide to 2025. The full link to this publication can be found here.

2024 was an incredibly busy year for work health safety and regulatory practitioners, with a significant amount of legislative changes across various jurisdictions. With all these changes taking place, the regulatory landscape in Australia has only become more complex for duty-holders in 2025…

The year began with a raft of changes to the Work Health and Safety Act 2011 (Cth) (WHS Act) (introduced as part of the federal government’s Closing Loopholes legislative reforms), which significantly increased work health and safety (WHS) penalties under that Act and provided for future indexing, meaning an increase in potential jail time for workplace deaths of up to 25 years for individuals, or a fine of up to $18m for companies.

Other changes included the introduction of an offence of industrial manslaughter for workplace deaths and amendments to the criminal liability provisions for bodies corporate, the Commonwealth and public authorities, under which a corporation will be taken to have committed the offending conduct if it can be established that the board of directors, officers, employees or agents engaged in the conduct through express or implied authorisation. Even more significantly for PCBUs, the mental state or fault component of an offence (excluding negligence), will be attributed to the corporation in certain circumstances, including if a “corporate culture” exists which can be shown to have tolerated or led to the conduct constituting the offence. Following that development, provisions for a criminal industrial manslaughter offence were introduced over the course of 2024 in all remaining Australian jurisdictions, with the final piece of legislation coming into effect in Tasmania on 2 October 2024.

While there are a number of cases in jurisdictions that were early adopters of industrial manslaughter, we expect to see the safety regulators across Australia look closely at significant incidents, and whether reckless or gross negligence has been committed by organisations and their leaders. Whilst to date most of these prosecutions relate to smaller businesses, recently the former Port of Auckland CEO was convicted of exposing workers to serious risks in breach of his due diligence obligations. This prosecution represents the first of its kind for a large complex organisation.

Is this an indication of what the Australian regulators may be doing in 2025?

The national conversation on engineered stone and the need to address occupational dust diseases such as silicosis, asbestosis and mesothelioma led to a national prohibition on engineered stone in July 2024, following the establishment of the re-badged national Asbestos and Silica Safety and Eradication Agency, intended to better coordinate action at a national level.

In August 2024, Safe Work Australia announced the next step towards changes to the incident notification framework under the model WHS laws. The changes had been anticipated for some time and follow a review of the framework which found there was an opportunity to improve the coverage and operation of the provisions. A key focus of the changes is to expand the framework to capture psychosocial hazards and related psychological injuries and illnesses. In particular, changes include requiring notification of work-related suicides and attempted suicides of workers. The next step is for amendments to the model WHS laws to be drafted, which are expected to be released early this year.

With all these changes taking place, the regulatory landscape in Australia has only become more complex for duty-holders in 2025.

Psychosocial hazards
Psychosocial hazards have continued to keep our Safety and Regulatory team extremely busy and there is no sign of this slowing down in the new year, as Australian safety regulators are becoming increasingly active with issuing improvement notices and taking enforcement action. With each state regulator taking a slightly different approach to their compliance and enforcement activities, the landscape remains incredibly tricky for organisations with national or multi-state operations and will continue to remain so into the new year.

A key opportunity for organisations in 2025 will be to focus on embedding a collaborative, cross-functional approach to solving for this unique breed of WHS hazards and risks, which cannot necessarily be effectively addressed by elimination or engineering controls, given the propensity for individual workers to perceive and respond to situations differently. Perhaps one of the most important reflections to take away from 2024 is that psychosocial hazards effectively present a safety “problem” that requires a multi-disciplinary solution.

When it comes to psychosocial hazards, many of the answers are not yet abundantly clear, and will likely be questions for the courts to grapple with in 2025.

A key challenge for organisations in 2025 may be grappling with an even more fundamental question; what exactly is a psychosocial hazard? Further, does the applicable WHS legislative
framework require a systematic approach to managing psychosocial risks, or must a duty-holder address the idiosyncratic responses of individuals in the workplace?

Key areas where this challenge (and conversely, opportunity) commonly arise include interpersonal interactions, job/role design, organisation change management and performance management processes (to name just a few) and of course, the positive statutory duty to eliminate, as far as possible, sex-based discrimination and harassment, and sexual harassment, which exists under the federal Sex Discrimination Act 1991 (Cth).

More recently, Queensland introduced its own state-based positive duty, aimed at the elimination of all forms of unlawful harassment, including sexual harassment under the state’s Anti-Discrimination Act 1991 (Qld), in respect of which a sexual harassment prevention plan will be required to be implemented. It is possible that other states may follow suit.

In early 2024, we also wrote about the growing trend of enforcement activity in Australia within the WHS space in recent years. This increased enforcement activity can be linked to the Australian Work Health and Safety Strategy 2023-2033[1] published by Safe Work Australia, which represents the peak body’s national vision for WHS, agreed to by the various state WHS regulators, outlining targets that aim to achieve national WHS improvements and a goal of reduced worker fatalities, injuries and illnesses. One of the actions focuses on compliance and enforcement across WHS legislation and regulations.

Common risks that WHS regulators are targeting in 2024- 25 include falls from height, harms to workers in the health and social assistance sector with a focus on the disability sector, psychosocial risks, including the risk of sexual harassment, exposure to hazardous substances including silica, asbestos, hazardous chemicals and carcinogens, being injured by mobile plant, fixed machinery or vehicles in the workplace and vulnerable workers.

Having spent the last 12 months working closely with a number of clients across a range of industries, all grappling with the impact of increased regulatory scrutiny (predominantly in relation to psychosocial hazards), we have witnessed first-hand the impact of these activities, prompting the question – what happens when the regulator’s compliance and enforcement activities are the cause of, or are a significant contributing factor to, psychosocial risks and psychosocial hazards … essentially, how are the regulators regulating themselves?

Of course, regulators have a duty to ensure (so far as is reasonably practicable) that their undertakings do not expose anyone to psychosocial risks. Business and other duty-holders are well entitled to ask regulators how they are complying with the same laws that they
are administering and to which they are holding everyone else accountable.

Artificial Intelligence
Finally, perhaps one of the biggest shifts that took place throughout 2024 was the area of technological advancement – specifically, the rise of artificial intelligence (AI). At the end of November 2024, the Senate Select Committee on Adopting Artificial Intelligence tabled its final report[2], with the first of 13 recommendations being that the Government introduce new legislation to regulate “high-risk” use of AI. Importantly, it also recommended that any final definition of high-risk AI “clearly includes the use of AI that impacts on the rights of people at work, regardless of whether a principles-based or list-based approach to the definition is adopted”.

Another key recommendation was that the Government “extend and apply the existing work health and safety legislative framework to the workplace risks posed by the adoption of AI”.

Issues relating to the use of AI at work which the Committee flagged as requiring serious regulatory consideration include the loss of jobs, need for training and reskilling, and the impact of algorithmic management of work. However, the report noted that many of these issues are being explored in further detail by the House Standing Committee on Employment, Education and Training’s inquiry into the digital transformation of workplaces, so we can expect to hear more on this in the future.

[1] Australian Work Health and Safety Strategy 2023-2023, published by Safe Work Australia and available online here.
[2] Senate Select Committee on Adopting Artificial Intelligence. The final report is available online here.

The following article is an extract from our publication, the Kingston Reid Review: Your Guide to 2025. The full link to this publication can be found here.

Employer-sponsored migration continues to be Australia’s Achilles’ heel; it solves skill shortages, it boosts the economy and it occasionally weaponises political debate. However, as 2024 draws to a close, so too does the workhorse of the employer-sponsored visa program – the Temporary Skill Shortage (TSS) visa.

From 7 December 2024, the Skills in Demand visa replaced the TSS visa and we had a return to the CSOL; once the Consolidated Skilled Occupations List, but now the Core Skilled Occupation List.

While some skills shortages have eased up, various sectors continue to struggle with little end in sight. Healthcare, aged care, education and childcare, information technology, engineering, and the trades are all in need.

For employers in these fields, the new Skills in Demand visa may very well be the answer with its three new streams: Core Skills, Specialist Skills and Essential Skills.

Increased salary thresholds
One of the most significant changes over the last 12 months was the rise in the Temporary Skilled Migration Income Threshold (TSMIT). The TSMIT is the entry level salary threshold used in the temporary employer-sponsored program.

• since 2013, it had been frozen at $53,900;
• then, on 1 July 2023 it shot up by around 30% to $70,000;
• then, again, on 1 July 2024, it was indexed to $73,150.

This adjustment aimed to ensure that sponsored roles reflect genuine skill needs and attract a highly skilled workforce. However, it has posed significant challenges for small businesses and sectors reliant on lower-wage roles, such as hospitality and agriculture, sparking calls for a more nuanced approach.

Pathways to permanent residency
The Government’s commitment to providing clearer pathways to permanent residency for skilled migrants under the employer-sponsored program remained a focus over 2024. The increased flexibility in transitioning from the TSS visa to permanent residency under the Employer Nomination Scheme (ENS) was welcomed by employers and migrants alike, fostering retention of talent in Australia.

With 2024 wrapped up, it’s time to brace ourselves for the inevitable chaos of 2025 and reflect on what was and predict what might be.

Compliance crackdowns
2024 also saw heightened scrutiny on compliance with sponsorship obligations. Employers faced increased inquiries to ensure compliance with the terms of sponsorship, including appropriate remuneration, job duties, and working conditions. Non-compliance attracts significant penalties, highlighting the importance of robust HR processes for sponsoring employers.

2024 Reflections: chaos… and opportunity?

Further occupation list revisions
With workforce demands evolving rapidly, the CSOL is poised to be the answer. The Government says that the new CSOL fulfils the Government’s commitment to replace complex, out of date and inflexible occupation lists in the temporary skilled visa program.

The CSOL is a single consolidated list, informed by labour market analysis and stakeholder consultations by Jobs and Skills Australia that provides access to temporary skilled migration for 456 occupations.

So, whether you need a Yoga Instructor or a Managing Director, there is bound to be something on the CSOL for you

Strengthened regional migration strategies
In 2025, expect further incentives for regional migration, including higher allocations for regional employer-sponsored visas. Policies encouraging settlement in regional areas will likely become a cornerstone of the Government’s strategy to balance population distribution and meet regional skill demands. Regional may not be as far away as you think; go West (or North or anywhere that’s not a capital city)!

Reforms to permanent residency pathways
The transition from temporary to permanent residency may undergo further simplification in 2025, with streamlined pathways aimed at improving Australia’s competitiveness in attracting global talent. Changes could include shortening the residency requirement for ENS eligibility or removing the occupation list restrictions for certain high-demand roles.

Enhanced digital processes
The Department of Home Affairs is likely to continue its focus on digital transformation in visa processing. Faster processing times and a more transparent application process will be key priorities, particularly for employer-sponsored visas, to reduce administrative burdens and enhance user experience.

Looking ahead
The Australian Government’s commitment to employer-sponsored migration remains steadfast, recognising its pivotal role in bridging skill gaps and supporting economic growth. However, employers must stay informed and adaptable as policies evolve to align with national priorities.

Kingston Reid’s Global Mobility team
Our team of dedicated migration professionals specialise in providing comprehensive and practical advice and assistance to our clients on strategic migration matters across all sectors.

Our migration services go hand-in-hand with our expertise in employment law to provide an end-to-end service offering, and that’s not all…

Kingston Reid is here, not only to assist with various visa processes, but to provide guidance, representation with Australian Border Force matters, assistance with streamlining the sponsorship process and continued support throughout the lifetime of your sponsorship period (that is, at the very minimum, 5 years!).

With the knowledge and expertise of the Kingston Reid migration team, we are committed to guiding our clients through the complexities of sponsorship that will allow you to harness international expertise, drive business growth and innovation.

The following article is an extract from our publication, the Kingston Reid Review: Your Guide to 2025. The full link to this publication can be found here.

2024 continued to shine a light on corporate culture claims, which to be fair, follows several years of increased media scrutiny of cases in which individuals (some high profile, others not) have been accused of inappropriate conduct, including sexual harassment.

What these cases demonstrate is the changing public sentiment towards inappropriate behaviour in the workplace. This has driven a change in the way that organisations respond to and address these kinds of claims. Take for example, the recent independent external review undertaken by Nine Entertainment into allegations of inappropriate behaviours impacting the company’s culture. The public discourse around such behaviours has in recent years been elevated to such an extent that the external report has been voluntarily published publicly, indicative of a rising “high water mark” in corporate accountability, particularly in light of increasing regulation with respect to psychosocial hazards and of course, the positive duty to prevent sex-based discrimination (including sexual harassment) in the workplace, which has now been in effect for over two years. In 2025, another area that might be broadly bundled under the moniker of “corporate culture”, will be the issue of free speech and political opinions being aired in the workplace – a notoriously vexed area that can present a myriad of challenges for employers to address, for a range of reasons.

In 2025, another area that might be broadly bundled under the moniker of “corporate culture”, will be the issue of free speech and political opinions being aired in the workplace – a notoriously vexed area that can present a myriad of challenges for employers to address, for a range of reasons.

There is no shortage of people who hold strong views, and this has the potential to become an increasingly challenging area to navigate for employers in light of political developments overseas, as well as other significant local events. This may also pose psychosocial risks in the workplace, which will become increasingly difficult to control.

Whistleblower protections
Whistleblower frameworks will also be an area of much focus in 2025, as ASIC undertakes its 5-year statutory review of the federal whistleblowing regime. That review will of course take place against the backdrop of the scathing conclusions reached by the Senate Economics References Committee in its investigation into ASIC’s own performance as a regulator, published in July 2024[1], which also included a range of recommendations for the whistleblower regime more generally, including – of note – “pecuniary incentives and compensation for whistleblowers who make a substantiated disclosure”.

Essentially, establishing a financial incentive to whistleblowers to make a disclosure where there would be a “significant public benefit”, or otherwise where that person might experience significant personal detriment in making such a disclosure.

With this level of scrutiny applied to the behaviour of individuals (both alone and collectively), and the possibility of changes to the statutory whistleblowing framework on the horizon, it is a must for organisations to be revisiting their governance frameworks around conduct issues. This will remain a high priority issue for the C-suite, with regulator activity, particularly with respect to psychosocial hazards and sexual harassment, on the increase.

Unfair dismissal and general protections claims
One observation of 2024 was that, at least in some of our offices, there appeared to have been an increased number of individual claims, particularly unfair dismissal and general protections claims with which our lawyers were asked to assist. This seems to be consistent with Fair Work Commission (FWC) data showing that unfair dismissals were (still) the most common lodgement type in 2023-24, making up 37% of total lodgements, with general protections claims making up 14%[2].

The reasons for the volume of individual claims are less clear; although there is speculation that economic (or “cost of living”) pressures could be playing a role. However, what does seem apparent is that the visibility of high-profile individual claims in recent years, coupled with ongoing discourse regarding both the Respect@Work and Closing Loopholes legislative reforms, seem to have re-established more broadly the industrial rights of the individual.

With this trend in mind, employers will be well advised to revisit their approach to internal investigations, highlighted by some recent decisions from the FWC. In one such case, the FWC determined that, despite the conclusions of an investigation, bullying allegations against an employee were not, in fact substantiated at all and that the employer had had no valid reason to dismiss. In that case, the FWC commented that the employer “appeared to believe that the sheer number of allegations presented a persuasive case of guilt”[3].

Aside from ensuring investigations are conducted fairly, and with sufficient evidence collected and appropriately tested and weighed, it’s also critical to recognise the collateral risks of workplace investigations and to assess how those risks must also be managed, including for example, the risk of re-traumatisation.

Wage theft
Regulators will continue to have a strong presence in 2025, noting the Fair Work Ombudsman (FWO) announced that it recovered $473m in underpayments in 2023-2024[4]. According to its media statement, this is the third highest annual figure recorded. As the FWO has previously indicated[5], vulnerable migrant workers, visa holders, and the large corporate sector (which represented $333m of the recovered underpayments) will continue to remain a focus for the regulator.

This is particularly so as the new criminal “wage theft” provisions take effect on 1 January 2025, following the release of the Voluntary Small Business Wage Compliance Code[6] in December 2024. With the potential of criminal sanctions for intentional underpayments and significantly increased penalties for underpayments generally, compliance with industrial instruments must remain a top priority for all organisations in 2025.

Right to disconnect
2024 saw the introduction of the highly controversial right to disconnect. While the right to disconnect quickly became the subject of significant media coverage and debate, the full impact of the new laws is yet to be seen. The FWC’s new jurisdiction to deal with disputes relating to the right to disconnect will continue to be an area to watch for employers in 2025. We also expect to see further developments in the federal courts as applicants rely on the exercise of the right to disconnect in general protections applications.

WGEA reforms and gender pay gap data
The other area of focus for employers in 2024 was compliance with the introduction of further WGEA[7] reforms and the herald of its new private and public sector gender pay gap data publishing requirements.

On 20 November 2024, WGEA’s Gender Equality Scorecard 2023-24[8] was published, which highlighted the observable shift in employer focus and public attention on the issue of gender equality. The report suggests that the anticipated publication of employer gender pay gap data has had a motivational effect, with the median gender pay gap decreasing slightly by 0.6pp between 2022-23 and 2023-24.

The report also highlights further areas of continued focus, including gender segregation of industries, seniority of appointments (particularly at the board level), prevention of sexual harassment in the workplace, and employment conditions relating to family and caring responsibilities.

Flexible work arrangements
Employees have always had the right to request flexible work arrangements under the Fair Work Act 2009 (Cth) (FW Act). However, changes to the flexible workplace arrangement regime came into effect in June 2023, which not only expanded employees’ rights to make such requests, but also opened the door to refusals being the subject of arbitration in the FWC.

Following those changes, in 2024 we started to see a steady stream of flexible working arrangement disputes filed in the FWC. So far, the FWC’s approach to determining these disputes has been finely balanced and notably, one case[9] even acknowledged the importance of face-to-face interactions and attendance at the workplace in refusing a working-from-home request in which the employee sought to work 100% of his five-days working week from home.

People managers and supervisors should be trained to ensure they recognise what a flexible work arrangement request is, and the importance of genuinely considering and consulting with an employee on the request before implementing a decision.

Given the FWC now has powers to arbitrate a decision to refuse a flexible working arrangement, businesses should review what systems and process they have in place for receiving, reviewing and determining any such request, and ensure that in doing so, that they balance the needs of each of the parties.

In addition to these rights, those with cover under the Clerks – Private Sector Award 2020 will be watching and waiting to see how the Full Bench of the FWC deals with developing a standard working-from-home clause in the first half of 2025. For others, this development will be on the radar as any new term will likely become a “blueprint” for other modern awards.

Anti-discrimination laws
With effect from 1 July 2025, Queensland employers will be required to comply with broadened anti-discrimination laws, including new attributes, definitions and an expanded positive duty to eliminate all discrimination, harassment and objectionable conduct.

Queensland’s Respect at Work and Other Matters Amendment Bill 2024 (Qld) (Respect@Work Bill) adopts a broader approach than the national standards, by introducing a new positive duty to take reasonable and proportionate measures to eliminate discrimination on the basis of all protected attributes, as well as sexual harassment.

The new legislative requirements will also interact with the recent amendments to the Work Health and Safety Regulation 2011 (Qld) which requires PCBUs to prepare, consult and implement a sexual harassment prevention plan by 1 March 2025.

A sexual harassment prevention plan must outline and assess the risks related to sexual harassment, control measures to mitigate those risks and clear procedures for reporting and handling harassment incidents. The plan must be accessible to all employees, and reviewed regularly after an incident, requested by a WHS representative, or otherwise every three years.

Regulated workers
Finally, 2024 was a year where it could be said that we saw more new compliance requirements than ever before, with the introduction of new powers for the FWC to set minimum conditions for workers who are not employees at all.

The new concept of a regulated worker captures particular independent contractors working in road transport and through digital platforms who work in a manner that is “employee-like”.

The Transport Workers Union was quick off the mark to make applications to the FWC for the making of Minimum Standards Orders, the run to making Minimum Standards Orders hit a quick stop, with the FWC expressing its commitment to consulting heavily on the process for making the Minimum Standards Orders, and making orders for the Road Transport Advisory Group to provide advice about how it proposes to conduct itself and undertake consultation for its advice to the FWC to support this process.

In the meantime, the Minister for Workplace Relations has made the Digital Labour Platform Deactivation Code and the Road Transport Industry Termination Code which will each commence on 25 February 2025 (or the date of their formal registration, if later) to codify the disciplinary processes that must be followed to ensure the fair deactivation of digital labour platform workers, and the fair termination of owner-drivers and other independent transport workers.

While observers might have anticipated that the Codes might have taken inspiration from the Small Business Fair Dismissal Code (which applies in respect of the dismissal of employees of small businesses), the Codes go considerably further and require particular warning and appeal processes to be followed, before a deactivation or dismissal may be considered fair.

As employee-like workers gain access to unfair deactivation and termination processes from 26 February 2025, it will remain to be seen how the FWC exercises its discretion in respect of the application of the Codes to perform its functions in a sensible manner, which appropriately balances the desire for procedural fairness with a need to maintain the integrity of independent contracting arrangements.

With the reforms that have already taken place in 2024 and the issues we see staying squarely in focus for employers in 2025 (and beyond), it will be critical for organisations to undertake a fresh look at their workplace policies and training offerings, to ensure they align with new legislative or regulatory requirements.

[1] The Senate Economics References Committee: ASIC final report available online here.
[2] Statistics extracted from the Fair Work Commission’s 2023-2024 Annual Report (stated as at 30 September 2024), available online here.
[3] Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784 at [24].
[4] Fair Work Ombudsman media release dated 23 October 2024: available online here.
[5] Office of the Fair Work Ombudsman 2023-2024 Annual Report: final report available online here.
[6] The Voluntary Small Business Wage Compliance Code is available online here.
[7] Workplace Gender Equality Agency.
[8] The WGEA Gender Equality Scorecard 2023 – 2024 is available online here.
[9] Shane Gration v Bendigo Bank [2024] FWC 717.

February 12, 2025

Fixed-term contracts have long been a popular tool for employers seeking flexibility in their workforce. Many assume that when such contracts expire, employment simply ends without any risk of unfair dismissal or general protection claims. But what happens when an employee has been engaged on consecutive fixed-term contracts for years? Does the non-renewal of their final contract amount to dismissal, or is it simply the agreed conclusion of the employment relationship?

These were the key questions at the heart of the decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, a case that tested the legal boundaries of fixed-term employment and unfair dismissal protections.

Background
Mr Tim Alouni-Roby, a professional rugby league referee, was employed by the National Rugby League (NRL) on a series of consecutive maximum-term contracts between February 2015 and November 2020. In June 2020, Mr Alouni-Roby was informed that his final contract would not be renewed, and his employment ended following the expiry of the final employment contract in November 2020.

Believing that the non-renewal of his contract was linked to the exercise of his workplace rights, Mr Alouni-Roby filed a general protections claim with the Fair Work Commission (FWC), arguing that the non-renewal of his most recent maximum-tern contract should be classified as a dismissal. However, the FWC dismissed his claim, ruling that his employment ended due to the expiration of his contract.

Dissatisfied with this outcome, Mr Alouni-Roby made several appeals, firstly to the Full Bench of the FWC, then seeking judicial review before the Federal Court of Australia. He finally took his case to the Full Court of the Federal Court of Australia in February 2024. He argued that the primary judge of the Federal Court erred in the findings in interpreting the law, relying on four grounds of appeal.

The Decision

Are outer-limit contracts with early termination clauses an exception to dismissal?
One of the central questions before the Full Court was whether outer-limit contracts—fixed or maximum-term contracts that allow for early termination—fall under the exception of whether a person has been “dismissed” under section 386(2)(a) of the Fair Work Act 2009 (FW Act). Whether a person has been dismissed is a critical factor in determining eligibility for unfair dismissal or a general protections claim.

Section 386(2)(a) of the FW Act states that an employee is not considered dismissed if they are employed under an employment contract for a specified period of time, task or season, and the employment ended as a result of the expiry of the time, task or season.

In reviewing the legislative intent behind this provision, the Full Court confirmed that fixed-term or maximum-term contracts, including those that allow for early termination, still fall within this exception. The Explanatory Memorandum for the Fair Work Bill 2008 (Cth) reinforced this interpretation, explicitly stating that the “…fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)].”

Previously, under the predecessor legislation, the term “contract of employment for a specific period of time” was often interpreted as excluding outer-limit contracts that allowed for early termination. However, the Full Court ruled that the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. The Full Court found that section 386(2)(a) was intended to function differently from past provisions, aligning with the statutory purpose of excluding employees from unfair dismissal protections whose employment is terminated by agreement—rather than by or in response to some unilateral act of an employer—upon the completion of an agreed (and specified) period, task or season.

Does non-renewal of a fixed-term contract count as a dismissal?
Mr Alouni-Roby further argued that the FW Act should interpret “dismissal” to include an employer’s decision not to renew a fixed-term contract, even when an employee had been repeatedly engaged on similar contract. His argument was based on the idea that, in “practical reality”, his ongoing employment through a series of renewed maximum-term contracts created a legitimate expectation that his contract would be renewed.

However, the Full Court rejected this argument, emphasising that employment is contract-based. When a contract expires naturally, the employment ends as agreed. Not because of the employer’s action. Mr Alouni-Roby expectation after the expiry of the contract was “irrelevant” to the question (except to the extent that it might reflect a sham transaction). Furthermore, the suggestion by Mr Alouni-Roby that the NRL engineered his non-renewal by manipulating performance rankings was irrelevant and not instructive. Even if the reasons to non-renewal was unfair, it was not for the Full Court to say. The matter at hand was about how his employment ended, not why the contract was not renewed.

Does the FWC need to consider the NRL’s conduct in light of section 578 of the FW Act?
Mr Alouni-Roby’s final argument was that the FWC failed to perform its functions to take into account the objects of the FW Act and the equity, good conscious and merits of the matter when considering the NRL’s conduct throughout his employment, as required under section 578 of the FW Act. He claimed the FWC should have investigated whether;

1. there was a genuine agreement that his employment would end upon the expiration of the contract;
2. the NRL’s treatment of him influenced how his employment ended; and
3. the NRL’s use of fixed-term contracts was a strategy to avoid unfair dismissal protections.

The Full Court dismissed this argument, stating that section 578 does not override or modify section 386. The FWC’s role was simply to determine whether his contract expired naturally or was terminated by NRL’s initiative—which it correctly did. Section 578 does not allow the FWC to ignore or alter legal rules based on fairness or merit.

Accordingly, for the reasons outlined above, the Full Court dismissed the appeal.

Takeaways
This decision reinforces that well-drafted fixed-term or maximum-term contracts, including those allowing early termination, do not trigger unfair dismissal or general protection claims, provided the contract expires naturally. This existence of a legitimate expectation of ongoing employment is irrelevant, as the court made clear that “there can be no expectation of an ongoing employment relationship without an ongoing employment contract.”

However, employers must still exercise caution, as fixed or maximum-term contracts may still be deemed ongoing if their contract does not clearly define a specified period, task or season. Employers must also be mindful of the new rules which apply to the engagement of employees on fixed term contracts, in particular that provision which limit the term of a fixed term contract (including extensions or renewals) to a period of no longer than two years.

To mitigate risks, employers should review their employment contracts in light of this decision, ensuring they are clearly drafted and legally compliant to avoid potential unfair dismissal or general protection claims. Please let us know if we can assist.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.