Insights & News

April 14, 2025

The Commonwealth Government recently approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (the Code). The Code provides practical guidance on managing health and safety risks arising from sexual and gender-based harassment at work.

Wider context of the Code

The Code supports implementation of recommendation 35 of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020). This recommended that work health and safety (WHS) ministers agree to amend model WHS laws to deal with psychological health and develop guidelines and a code of practice on sexual harassment.

The Code also complements the positive duty under the Sex Discrimination Act 1984 (Cth). This requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible (you can learn more about the positive duty here).

Recognising that sexual and gender-based harassment often occurs in conjunction with other psychosocial hazards, the Code should be read and applied in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024.

What are the key takeaways from the Code?

The Code outlines a risk management process to assist PCBUs in meeting their health and safety duties. The four-step process includes:

1. Identify hazards

A PCBU must identify risks of sexual and gender-based harassment to workers, or to others arising from the work of the business or undertaking.

Identifying the risks of sexual and gender-based harassment involves understanding situations in which it could occur, including:

• when and where (e.g. at the workplace; while on site visits);
• how it could occur (e.g. from contact with customers or the public, or from other workers);
• the potential nature of the harassment (e.g. verbal or physical, overt, subtle); and
• who is likely to be affected.

2. Assess risks

After identifying the risks, the PCBU should assess the risk, consider the duration (how long is the worker exposed to the risk?), the frequency (how often is the worked exposed to the risk?), and the severity (how severe is this harassment?).

The Code identifies that frequent or prolonged exposure to forms of sexual harassment that are considered subtle or less serious can have a similar impact on someone’s psychological health as a single, ‘more severe’ incident.

3. Control risks

PCBUs should implement the most effective control measures that are reasonably practicable in the circumstances and ensure they remain effective over time. Control measures should be tailored to the PCBU’s size, type, work activities, and workforce.

The Code recommends several strategies, including:

• Design, systems and layout of work: consider varying the systems and design of work and the physical work environment. For example, consider meeting clients in the office rather than in isolated areas, discourage working alone, ensure workplaces have high visibility and effective communication systems.
• Training and education: regular training sessions for employees and management to raise awareness and understanding of harassment issues.
• Clear policies: develop and communicate clear policies that define unacceptable behaviour and outline the consequences of such actions. Ensure all inappropriate or harmful behaviours are addressed early.

4. Maintain and review control measures

The PCBU must review and modify or replace a control measure if it is not working effectively. The reviews should be done regularly, and must be done:

• when the control measure is not eliminating or minimising the risks so far as is reasonably practicable;
• before a change at the workplace that is likely to give rise to a new or different health and safety risk that the control measure may not effectively control;
• if a new hazard or risk is identified if the results of consultation indicate a review is necessary; or
• if a health and safety representative requests a review because they reasonably believe one of the above has occurred and it has not already been adequately reviewed.

WHS consultation obligations apply at all stages during this risk management process.

What does this mean for your business?

Codes of practice are admissible in court proceedings under WHS laws and courts may rely on the Code in determining what is reasonably practicable in the circumstances.

While the Code only applies in the Commonwealth jurisdiction, the guidance is relevant for all business and can be used to guide risk management processes. We will likely see other states and territories introduce similar codes of practice in the near future.

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.

Kingston Reid advised Sydney Trains and NSW Trains in relation to an application before the Full Court of the Federal Court of Australia affirming the suspension of industrial action under the ‘cooling off’ provisions in s425 of the Fair Work Act 2009 (Cth) (FW Act). This case is the most authoritative judgment on s425 and one of only a handful of cases considering the extent to which the Fair Work Commission (FWC) may suspend industrial action under that provision.

A judicial review application filed by the CEPU sought to appeal a Full Bench of the FWC order, made on 19 February 2025, to suspend protected industrial action engaged by the CEPU and the RTBU. This application is one of several ongoing legal skirmishes between the Combined Rail Entities (which includes the CEPU and the RTBU, amongst other unions) (CRU) and the Rail Agencies (being Sydney Trains and NSW Trains) relating to the negotiation of a new enterprise agreement between the parties.

The FWC’s intervention came notwithstanding advanced discussions between the parties when a last-minute demand by the unions for a $4,500 sign-on bonus was rejected by the NSW Government on budgetary grounds. The RTBU then reimposed a ‘go-slow’ work ban. In response, the Rail Agencies informed employees that partial performance of duties would not be accepted, and wages would not be paid for that time.

The following day, 652 train drivers and guards did not attend work. 57% of services were cancelled and customer numbers were reduced by 70%. That afternoon, the Rail Agencies sought ’cooling off’ orders from the FWC under s425 of the FW Act — a little-used provision which allows the FWC to suspend protected action if it is satisfied that a suspension would assist the parties in resolving their bargaining dispute.

Following a hearing the next week, the FWC’s Full Bench granted the orders, suspending all protected action until 1 July 2025. It concluded that continued action would do little to progress bargaining, given the NSW Government’s fixed position on the sign-on bonus, and that the public disruption caused by the action was substantial. It also noted the potential for long-term damage to negotiations if industrial tactics escalated further.

Section 425(1)(a) of the FW Act empowers the FWC to suspend protected industrial action if it is satisfied that this will assist the parties to resolve the matters in dispute. Unlike termination powers (such as under s423 or s424), s425 of the FW Act is not focused on safety or economic damage — it is forward-looking and strategic, allowing the FWC to preserve the bargaining environment where ongoing action threatens to derail progress.

It was in this context that the CEPU sought judicial review of the FWC’s decision on the following grounds:

• misapplication of s425(1)(a): the CEPU argued the FWC erred by failing to assess whether the suspension would benefit each bargaining representative individually, rather than the group as a whole;
• irrationality or unreasonableness: the CEPU submitted that the FWC acted unreasonably by concluding that further action would not close the gap between the parties, despite the NSW Government’s budget constraints; and
• lack of evidence: the CEPU claimed that there was no evidence to support that it had engaged in mutual recriminations or that it had reverted to a previously notified go-slow action.

The Court was not persuaded by any of the grounds advanced by the CEPU and dismissed the appeal.

Although the circumstances arising from this case are unique — given the advanced stage of bargaining, the Government’s role, and the scale of the disruption — the case stands as a precedent for how employers might use s425 of the FW Act strategically. It confirms that the FWC has latitude to pause protected industrial action not only to prevent escalation, but to protect fragile progress toward agreement.

For employers facing novel or prolonged industrial tactics, s425 may be a powerful tool in their bargaining toolbox.

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.

As Australia navigates the next wave of workplace transformation, remote work continues to sit at the intersection of employee expectations, productivity demands, and the political debate. While once seen as a temporary pandemic measure, flexible work has now evolved into a hotly contested space, shaped as much by shifting economic realities as by legislative change and court decisions. Recent announcements from both sides of politics, together with Fair Work Commission (FWC) rulings, offer insight into where this dynamic conversation is heading.

In early 2025, the Federal Opposition reignited debate on working from home, with signals that if elected, they may seek to restrict widespread working-from-home (WFH) arrangements. Framing the debate around declining productivity and weakened workplace culture, the Federal Opposition has argued that greater in-office presence is needed to support collaboration and economic growth. This reflects international trends, including in the United States, where major firms and public agencies are rolling back remote work permissions, citing similar concerns over productivity and employee engagement.

On the other hand, the Federal Government continues to support flexible work, including through its recent ‘Right to Disconnect’ reforms, embedding a right for employees to refuse unreasonable after-hours contact. These reforms highlight an underlying tension in contemporary work: while flexibility is popular among employees (particularly younger workers), governments and businesses are grappling with its productivity implications.

Key decisions on the limits of working remotely

Over the past year, the FWC has clarified the limits of employees’ rights to work remotely under the Fair Work Act 2009 (Cth) (FW Act), and the ability of employers to refuse such requests on “reasonable business grounds”. Several notable cases shed light on how these principles are playing out:

• Quirke v BSR Australia Ltd:^[1] the Full Bench clarified what constitutes a valid request under s65B of the FW Act, dismissing an application that did not satisfy threshold requirements. This case highlights that employees must make properly grounded requests, connected to their circumstances;
• Lloyd v ANZ Group Ltd:^[2] the FWC found that a request to work fully from home based on age lacked an objective, rational connection to the employee’s circumstances, rendering it invalid. Even if valid, the employer’s reasonable business grounds to refuse (including the need for in-office collaboration) would have prevailed;
• Gregory v Maxxia Pty Ltd:^[3] here, the FWC upheld the employer’s refusal of a 100% WFH request, endorsing the benefits of face-to-face engagement for productivity and employee support. Importantly, the employer’s attempts to negotiate alternatives demonstrated the genuine efforts required under the FW Act;
• Ridings v FedEx Express Australia Pty Ltd:^[4] a partial win for employees, this case involved a family caregiver seeking a four-day remote work arrangement. The FWC did not endorse indefinite remote work but ordered a three-month trial of a flexible arrangement, indicating a preference for negotiated outcomes;
• Aoyama v FLSA Holdings Pty Ltd:^[5] Significantly, the FWC required the employer to approve an additional remote day tied to childcare needs, showing a nuanced approach where personal circumstances warrant flexibility, but within reason.

These cases reveal three key trends:

1. Employers must engage genuinely with flexibility requests but are not obliged to approve arrangements that undermine legitimate business needs;
2. Evidence and clear reasoning matter — both employees and employers need well-documented, rational grounds for their positions; and
3. The FWC recognises the value of in-person work, especially for collaboration, mentorship and productivity — echoing broader political concerns.

Faced with an increase in the volume of requests and a tightening regulatory landscape, employers are more frequently embedding flexibility in their enterprise agreements. Recent Model Flexibility Terms for enterprise agreement and modern award clauses suggest a move towards having clearer parameters for flexible work.

Employers must also grapple with psychosocial risks associated with WFH, including isolation, blurred boundaries and overwork. Leading HR teams are implementing structured hybrid models, often mandating a minimum number of in-office days to balance flexibility with team cohesion.

With both political parties framing remote work as a productivity and economic issue, the next election may shape the legislative future of flexible work. If calls to mandate office returns gain traction, we could see new statutory limitations on remote work — particularly in sectors where collaboration and innovation are key.

At the same time, employers should prepare for further regulatory developments, including:

• privacy and surveillance reforms are expected to introduce tighter controls on employee monitoring — especially critical for remote settings;
• AI and digital transformation consultations suggest new obligations to engage with workers when implementing technologies that affect work location and processes; and
• award-based WFH clauses and enterprise agreement terms will likely become more prescriptive, as disputes over the scope of flexible work increase.

The future of remote work is far from settled. The upcoming Federal election and geopolitical influences mean that we are at a critical juncture on how flexible work arrangements that meet business needs are balanced with evolving employee expectations. As the political debate sharpens and legal standards become clearer, organisations that adopt thoughtful, balanced approaches to remote work will be best placed to navigate this shifting terrain.

[1] [2023] FWCFB 209.

[2] [2024] FWC 2231.

[3] [2023] FWC 2768.

[4] [2024] FWC 1845.

[5] [2025] FWC 524.

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.

March 27, 2025

The complexities of enterprise agreement making has again been highlighted in a recent decision by the Fair Work Commission (FWC) in DOF Subsea Australia Pty Ltd[1] (DOF Decision). This case reconsiders the eligibility of casual employees to vote on an enterprise agreement, having regard to the new definition of a casual employee in the Fair Work Act (FW Act).

The DOF Decision has broadened the categories of casual employees who are eligible to vote on an agreement, and has increased the difficulty for employers in correctly assessing which casuals may be entitled to vote, as well as the risks of getting it wrong.

Legislative Framework

The FW Act provides a comprehensive framework for the making of enterprise agreements. The process, at a high level, involves:

• A proposed enterprise agreement is agreed through bargaining;
• Eligible employees are requested to vote on the proposed agreement (Request). The Request encompasses a 7 day ‘Access Period’ where employees are provided information about the proposed agreement;
• For an employee to be eligible to vote on an agreement, the Employee must be:
  • employed at the time the employer Request is made; and
  • an employee who will be covered by the agreement.
• Employees vote on the agreement. If a majority of eligible employees vote to support the agreement, the agreement is ‘made’; and
• An application for approval by the FWC must be submitted within 21 days of the agreement being made.

Parties, including unions, can object to the approval if they consider the requirements, including the correct determination of eligible employees have not been satisfied.

The DOF Decision

DOF Subsea Australia Pty Ltd (DOF) operates a fleet of offshore and subsea vessels. Two of the fleet operate in Australian waters and are variously deployed to work on specific client projects.

DOF engages casual employees (Casuals) to work on these two vessels when required for various projects. DOF’s process for engaging casuals is:

• DOF engages Casuals who may work on these vessels with a ‘Short Term Engagement Agreement’ (STEA) which contains the overarching terms and conditions of employment. This is effectively a casual pool; and
• when a project arises the Casual is issued a ‘Project Engagement Confirmation’ (PEC) which confirms the period of the Casual’s engagement for that project with a start and end date and the relevant conditions including the vessel, time and place.

Between March and September 2024, DOF bargained for an enterprise agreement with the Casuals who worked on these two vessels. This appears to have been contentious bargaining. The proposed DOF Subsea Australia Pty Ltd Maintenance, Construction and Decommissioning Enterprise Agreement 2024 (Agreement) went to vote between 29 September 2024 and 1 October 2024 seemingly without union support.

The Agreement was ultimately voted up 20 – 12.

In putting the Agreement to vote, DOF identified 34 Casuals it considered eligible to participate (Voting Cohort). Of these:

• all 34 had STEAs and a PEC. The PECs included a start date which predated the vote;
• 22 were rostered to work during the Access Period;
• 12 were rostered to work before and/or after (but not during) the Access Period.

DOF applied for approval of the Agreement. The Application was opposed by the Australian Workers’ Union and the Australian Manufacturing Workers’ Union (Unions) on several grounds, including relevantly, whether the Voting Cohort for the Agreement was correct.

The Unions’ Challenge

The Unions contended that only Casuals who worked during the Access Period should have been allowed to vote, as they were the only employees employed at the time of the Request.

On this analysis, the 12 employees who were rostered to work before and/or after the Access Period would be ineligible as they were not employed at the time of the Request and their inclusion may have undermined the validity of the vote.

The Employer’s Position

DOF contended that the Voting Cohort should include the 22 employees who worked during the Access Period and the additional 12 employees who worked before and/or after the Access Period. They argued these Casuals were employed at the time and would be covered by the Agreement, entitling them to vote to approve it.

The FWC’s Findings

The FWC considered the history of decisions on this issue and the new section 15A definition of casual employment in concluding that the correct position was:

• Casual employees can vote if they are employed at the time of the Request;
• Casual employees who are engaged on an ongoing basis are employed and can vote, even if they do not work during the Access Period;
• Casual employees working shifts during the Access Period are eligible to vote; and
• Casual employees who are not rostered to work the Access Period, or who do not have ongoing engagements are not eligible to vote.

The FWC found this approach was consistent with the requirement in the definition of ‘casual employee’ to assess the true nature of the casual employment having regard to the real substance, practical reality of the employment relationship as well as the terms of any contract or mutual understanding drawn from how the contract is performed.

To undertake this assessment, the FWC found it necessary to consider the individual circumstances of those who may have been eligible to vote.

The FWC considered the STEAs, PECs and the existing rosters to determine which of the Casuals were eligible. In doing so, the FWC concluded:

• The STEAs were effectively an agreement for a future engagement under a PEC. The STEAs put a casual employee ‘on the books’ but of themselves did not demonstrate a casual was ‘employed’;
• The PECs demonstrated a commitment to engagement on an ongoing basis between the commencement and end date and this demonstrated employment at the time of the Request; and
• The Rosters provided further context as to whether there was ongoing employment, particularly where the PEC did not specify an end date. Where an employee was rostered to work after (but not during) the Access Period, this indicated that the Casual was employed at the time of the Request and that they would be covered by the Agreement.

After assessing the factual evidence, the FWC concluded that:

• Casuals with a current PEC who were rostered to work during or after the Access Period were eligible to vote. Importantly, this included employees who were rostered to work up to 2 – 3 months after the vote occurred, noting that rosters were being prepared up to 5 months in advance; and
• Casuals with a current PEC who were rostered to work before, but not during or after the Access Period were not eligible to vote.

This assessment led the FWC to conclude there were 41 potentially eligible casuals. Of those, the FWC found 35 were entitled to vote. As the FWC disagreed with DOF’s approach to eligibility, it further found:

• 5 employees (rostered to work after, but not during or before the Access Period) who were eligible to vote were not asked; and
• 4 employees (who were rostered to work before, but not during or after the Access Period) who were asked to vote were not eligible.

Having determined that the Voting Cohort was incorrect, the FWC then determined whether the incorrect Voting Cohort impacted the validity of the vote. The FWC concluded that in the actual vote, a majority of the 34 invited to vote was 17. Of this there were 20 ‘yes’ votes. Once the potential discrepancy of 9 votes was considered, the outcome of the vote was capable of being impacted and the outcome was accordingly unsound.

The FWC refused to approve the Agreement on this basis.

Importantly, the FWC further noted that even if the outcome of the vote was not impacted by the error, it would still not have approved the Agreement on the basis that the exclusion of 5 eligible voters, from a cohort of 35 could not be considered a minor procedural or technical error even if it did not impact the outcome. This is a departure from previous cases which found that errors which would not impact the outcome could be considered minor or technical.

Key Takeaways from the Decision

The decision highlights the critical importance of correctly determining the voting cohort for an agreement, including eligible casuals and the significant risks of getting this wrong.

The assessment of casuals endorsed by this decision is complex. It requires consideration of the contract, the practical realities of the engagement and whether there is evidence of ongoing employment. It is not as simple, or as definite, as considering who worked the Access Period but seemingly requires consideration of circumstances and post-vote working patterns in determining eligibility.

This represents a potentially onerous and complex task to be completed during the Access Period to finalise the correct Voting Cohort.

An equally significant takeaway from this Decision is that the consequences of an error in the Voting Cohort have increased. On the view expressed in this Decision, denying a single or small group of employees the right to participate in and influence a vote is not a minor or technical error which can be overlooked, but in and of itself may be a basis to refuse to approve an Agreement.

It may be that this approach gives rise to the type of practical difficulties, such as determining with certainty the point at which those post voting work patterns are to be assessed and determined, that the Full Bench of the FWC have previously criticised. However, in the absence of a challenge to this approach, it is one that employers with casual and roster-based workforces will need to grapple with.

[1] [2025] FWC 749

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.

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.