Insights & News

September 11, 2025

On 5 September 2025, the Federal Court[1] reshaped the law on a practice many employers have relied on for decades: using contractual set-off clauses to balance out overpayments in one pay period against shortfalls in another.

The ruling was unequivocal: employers relying on this contractual practice can only offset within a single pay period and cannot “carry forward” payments to cover entitlements arising in another pay period.

The ruling does not abolish set-off clauses altogether, but it sharply limits their utility – both practically and from a compliance perspective. They now have a far narrower function than employers have historically assumed to consolidate different award entitlements within the same period.

The decision contributes to the tension at the heart of Australia’s industrial relations system between highly regulated compliance obligations and the need to deliver the flexibility and dynamism required for a modern economy to remain globally competitive. While the decision is certainly a hurdle for employers, options remain available for employers willing to invest in strategic workforce planning.

Why it matters  

This shift has major implications for payroll design, contract drafting, and remuneration strategy. While an appeal is possible, the Fair Work Ombudsman and plaintiff firms will rely on the decision immediately, making it essential for employers to act now.

The decision also risks stifling flexibility in how employers structure remuneration, as it narrows the scope for innovative salary models and increases reliance on rigid ‘per period’ compliance.

Whilst an appeal looks likely, unless and until a superior court says otherwise, this represents the current state of the law.  This means employers must act now to review – and potentially address – their approach to remuneration, payroll and record-keeping compliance, to protect against exposure to claims.

The key findings

Set-off limited to each pay period
Contractual set-off clauses cannot operate across pay periods. Employers cannot use overpayments in one month to cover underpayments in another month. The requirement in s 323 of the Fair Work Act 2009 (Cth) (FW Act) is that entitlements be paid “in full” for each prescribed pay period.

Set-off clauses in contracts operate differently to annualised salaries which are expressly provided for in Modern Awards and/or Enterprise Agreements. The Court reaffirmed that offsetting pay across pay periods is still allowed but only when a Modern Award or Enterprise Agreement expressly allows for an employee to be covered by an ‘annualised salary’.

Clearly drafted set-off and annualised salary clauses are a must
Set-off clauses in employment contracts can only discharge award entitlements where there is a clear “coincidence of purpose” — a direct link between the salary and the entitlements it is intended to cover. Vague or generalised clauses are unlikely to withstand scrutiny. This will mean that employment contracts must list in detail the exact Modern Award or Enterprise Agreement penalty, allowance or other rate which is being ‘offset’ to be effective.

Payroll systems must change
The decision effectively requires employers to introduce per pay period reconciliations and top-up payments. Annual or retrospective reconciliations will not avoid liability. This is likely to be one of the most expensive and complex implications of the ruling.

Agreements with employees must be genuine
Where a modern award requires agreement, the employer bears the onus of proving the employee knowingly consented. Implied or informal arrangements will not suffice.

Overtime clarified
A contractual clause authorising “reasonable overtime” is evidence of standing authorisation. But if an employee adjusts their hours for their own convenience, that is not employer-directed overtime. The Court also confirmed that “reasonable additional hours” and “overtime” are distinct concepts.

Record-keeping reinforced
Employers seeking to rely on set-off clauses or annualised salary arrangements must still comply with detailed record keeping requirements. This includes detailed records kept of overtime and penalty rates, even where the employee is not receiving additional payments for those entitlements because of the ‘rolled-up’ rate. The decision confirmed that simply keeping clocking data and roster information is not enough. Further, partial or reconstructed records are not valid. Records must be detailed, accessible and contemporaneous. This is critical, because the burden of proof under s 557C of the FW Act shifts to employers where records are incomplete.

The big questions for employers

This ruling forces employers to confront three strategic questions:

• Is there any benefit in retaining set-off clauses at all?
  With their utility confined to a single pay period, some employers may find that set-off clauses now deliver very little compliance value. Those employers seeking to smooth payments across time may wish to consider negotiating annualised salary arrangements as part of their enterprise agreements or to make better use of existing ‘Individual Flexibility Agreements’ under Modern Awards.
• Do payroll systems need to be rebuilt?
  The practical answer is – most likely, yes (at least to some extent). Employers should anticipate the need for live reconciliation within each pay cycle, and processes for automatic top-up payments when shortfalls arise. Policies and procedures should also be considered which seek to more strictly monitor and approve the working of overtime.

What employers should do now

Even with the potential of an appeal on the horizon, employers cannot afford to wait until then.  The decision is likely to see an increase in claims from unions and employees, in addition to greater regulatory interest by the Fair Work Ombudsman, for those employers relying on contractual set-offs and annualised salaries.

At Kingston Reid, we see this decision as a turning point, as well as an opportunity to redesign future-focussed remuneration strategies that will offer protection and certainty. While this decision is a hurdle for employers, efficiency and flexibility is still possible for those employers willing to invest in strategic workforce planning.

If you would like to understand what this decision means for your business, and how to respond strategically, please get in touch with our team.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.

[1] Fair Work Ombudsman v Woolworths Group Limited; Coles Supermarkets Australia Pty Ltd [2025] FCA 1092

September 10, 2025

Kingston Reid has appointed Joanna (Jo) Macchiesi as Special Counsel in its Melbourne office, further strengthening the firm’s national Safety and Regulatory practice.

Kingston Reid Managing Partner Alice DeBoos says:

“We are thrilled to welcome Jo to Kingston Reid. With deep expertise in safety, regulatory and employment matters across a wide range of industries, Jo will be an invaluable addition to our national team. This appointment reflects our continued commitment to providing market-leading advice to clients facing increasingly complex safety and compliance challenges.”

Jo has previously held senior in-house and private practice roles, including leading the design and implementation of major safety management systems for large enterprises.

Key work health and safety issues to watch in 2025 …

Jo joins the firm’s Melbourne office amid ongoing legislative reforms in the state and across Australia, but says there are two key work health and safety issues that employers need to be mindful of for the remainder of 2025:

“First, the new psychological health regulations that the Victorian Government is set to release next month, and which will take effect from 1 December 2025. This will align Victoria with regulations introduced in other Australian states and territories, reinforcing that psychosocial hazards, being work-related factors which can lead to physical or mental injury, are to be treated the same as physical hazards. Together with a Compliance Code providing practical guidance, employers with operations in Victoria will have greater clarity on how to meet their obligations to provide a psychologically safe workplace.

Second, across Australia we have seen increasing scrutiny of directors and officers following serious incidents, reinforcing the expectation that safety leadership is actively demonstrated from the top. While Victorian officers do not have the same positive due diligence duty that exists in other states and territories, they must be able to demonstrate the steps taken to ensure their organisation complies with its safety obligations. This is particularly important given the regulator’s heightened focus on individual liability.”

Jo Macchiesi is a Special Counsel in Kingston Reid’s Melbourne office.

“It’s an exciting time to be joining Kingston Reid and to play a key role in growing its Safety and Regulatory practice in Victoria,” Jo says. “I look forward to drawing on my operational experience to provide clients with practical, commercially focused advice that enables them to achieve sustainable and compliant outcomes.”

Kingston Reid Partner and Safety & Regulatory national lead John Makris says:

“Having Jo join the team is a significant development for Kingston Reid’s Safety and Regulatory practice. Her insights into the evolving regulatory landscape, particularly in Victoria, will be invaluable as our clients navigate new challenges and heightened expectations around workplace safety and governance.”

Jo brings extensive experience advising employers on work health and safety, employee relations, governance, and risk and compliance across sectors including education, mining, manufacturing, betting and financial services.

For further details, you can find Jo’s profile on our website here.

August 20, 2025

The establishment of the Industrial Court of NSW just over 12 months ago has marked a significant shift in the handling of work health and safety (WHS) prosecutions in the state. In assuming jurisdiction from the District Court for these matters, the Industrial Court has brought with it procedural reforms, and in the few decided cases, a familiar approach to sentencing. In summary, the Industrial Court has already demonstrated stylistic and procedural differences in determining prosecution cases.

Core sentencing approach

Unsurprisingly, the Industrial Court continues to apply the “instinctive synthesis” approach, weighing objective seriousness, aggravating and mitigating factors and deterrence, following established precedents in the reasoning process.

Foreseeability of risk, the ease and low cost of preventative measures and the importance of guidance material in setting the standard of care continue to be a priority. Also, the strong emphasis on general deterrence, often moderated with specific deterrence by post-incident remedial steps, plays a significant part in the sentencing process. In essence, the Industrial Court has not deviated from the core legal framework applied by the District Court.

This is welcome news as many years of established precedent in the District Court will help both SafeWork NSW (the Regulator) and the Person Conducting a Business or Undertaking when trying to determine where an incident may fall in regard to objective seriousness. We continue to see objective seriousness being assessed primarily through:

• foreseeability of the hazard/risk;
• severity of potential harm; and
• ease of available control measures.

This approach stresses that even infrequent hazards demand control where consequences are grave and preventative steps are simple.

Recent criticism of prosecutorial pleading practices

One recent procedural issue has been highlighted by the Industrial Court in the case of SafeWork NSW v Leichhardt Pty Ltd [2025] NSWIC 5 concerning the Regulator’s approach to pleading multiple particulars arising from the same operational failing. Particulars in a charge specify the way(s) the prosecutor alleges the defendant failed to abide by its duty so far as reasonably practicable. They usually take the form of various control measures the defendant should have followed or implemented to manage the alleged risk.

His Honour President Taylor noted that it is too common in SafeWork NSW proceedings that in addition to a primary particular of failure there are a series of further particulars which effectively repeat the same failing or make no significant difference to the overall culpability. In this case, President Taylor placed little to no weight to the additional repeated and irrelevant particulars when determining objective seriousness.

It is our view that these types of ‘precedent’ particulars adopted by the Regulator in WHS proceedings only complicate and draw out plea negotiations and can lead to disputed facts which further delay the process, take up more of the courts’ time and increase the defendant’s costs. This recent comment by President Taylor hopefully has the effect of influencing how the regulator drafts its charges in the future, preferably leading to more concise and relevant failings pleaded in the charge.

Effects of the updated Practice Note

A major procedural change in the Industrial Court was the implementation of the new Criminal Practice Note No. 1 for WHS proceedings. This focuses on a three-mention structure where if no plea is entered by the third mention, the Industrial Court can proceed on the basis that the matter will take place as a defended hearing and the defendant may lose the benefit of the 25% utilitarian discount that would otherwise be available on a plea of guilty. The intention is to ensure that matters are dealt with as expeditiously as possible.

This has placed pressure on both the prosecutor and defendants to negotiate and resolve matters in weeks, not months. In practice we have witnessed difficulty from both defendants and the prosecutor in meeting this timeframe set by the Industrial Court. However, in circumstances where there is an adequate explanation as to delay, the Industrial Court has been amenable to providing the parties with more time to come to a negotiated outcome, leaving the discount intact.

The procedural expectations are designed to expedite cases, reduce uncertainty and promote discipline. However, they also intensify the speed at which both sides must be ready to commit to positions on plea and evidence, again raising the risk in defendants preserving plea discounts.

Implications

The transition to the Industrial Court has not revolutionised sentencing outcomes as WHS offences remain substantial, deterrence-driven and anchored in established authority. But the procedural environment has changed markedly. Defence practitioners now face:

• greater urgency in analysing the brief and advising on the charge(s);
• increased importance of engaging with the Regulator early to refine or challenge particulars; and
• the need to adapt to prescriptive timetabling, especially for defended hearings where expert evidence and agreed facts must be organised well in advance.

For prosecutors, the compressed timeframes create equal pressure to finalise facts and respond to representations swiftly. It is also likely they face additional pressure due to President Taylor’s comments in Leichhardt.

Our WHS team will continue to provide updates on trends as decisions are published.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.

August 19, 2025

In considering the scope of redeployment obligations that must be met to engage the “genuine redundancy” defence to an unfair dismissal claim, the High Court has unanimously held that it may be reasonable and necessary for an employer to consider whether the employee could perform a contractor’s work.

In reaching this conclusion in Helensburgh Coal Pty Ltd v Bartley,[1]the majority expressed a clear view that employers should not simply take a static view of their organisation to see whether there are any currently vacant and suitable roles, as this would be an impermissibly narrow approach. This reasoning may have implications stretching beyond circumstances involving the use of contractors.

Background

In 2020, Helensburgh Coal Pty Ltd (Helensburgh Coal) faced a downturn due to COVID-19. To adapt, it scaled back its mining operations meaning that fewer workers were needed. During redundancy consultations, employees asked Helensburgh Coal to reduce its reliance on contractors from Nexus Mining Pty Ltd (Nexus Mining) and Mentser Pty Ltd (Mentser) in order to preserve direct hire employees. Helensburgh Coal went ahead with the restructure and cut its direct workforce by 90 employees, but continued to engage 90 Nexus and 8 Mentser contractors at the mine.

Twenty-two of the dismissed employees brought unfair dismissal applications in the Fair Work Commission (FWC). Helensburgh Coal objected to each of the applications, stating that all the dismissals were a result of genuine redundancy and therefore not capable of being regarded as unfair dismissals.

The matter involved a long procedural history in the FWC, including an initial decision, an appeal, a fresh decision on remittal and then a further FWC appeal. The conclusion of these proceedings was a finding that Helensburgh Coal could have redeployed the employees into roles being performed by contractors. An application for judicial review brought by Helensburgh Coal was dismissed by the Full Federal Court, leading to a final appeal to the High Court.

The legal questions

There were essentially two questions before the High Court:

1. Whether s389(2) of the Fair Work Act 2009 (Cth), which states that a person’s dismissal is not a case of genuine redundancy if it would have been “reasonable in all the circumstances” for the employee to be redeployed, allows the FWC to consider if an employer could change how it uses its workforce – for example, by insourcing work from contractors to direct hire employees (Primary Question); and
2. Whether the Full Bench of the FWC applied the incorrect standard of appellate review when considering the decision of Commissioner Riordan, the first instance decision-maker (Secondary Question). Helensburgh Coal alleged that the question of whether redeployment was reasonable has a right and wrong answer, such that no latitude or discretion is afforded to the FWC when determining these matters.

The High Court’s decision

In relation to the Primary Question, the majority (Gageler CJ, Gordon J and Beech-Jones J) analysed the requirements of a “genuine redundancy”.

Importantly, they held that two threshold requirements, being whether the employer no longer requires the employee’s job to be performed by anyone and whether this is because of changes in the operational requirements of the employer’s enterprise, are matters for the employer alone and are not attended by any reasonableness standard. That is, it is for an employer to make decisions about what jobs it requires to be performed and what changes might be required in its enterprise.

This will give a significant degree of clarity and comfort to employers embarking on organisational restructures.

The redeployment obligations are however more complex. The majority held that while employers are not required to alter the fundamental nature of their enterprise to create redeployment opportunities, the FWC otherwise has an “unmistakably” broad remit to consider what other changes might have been made.

In particular, the concept of redeployment “does not require there to be a vacant position” and might involve “some change to how an employer uses its workforce to operate its enterprise that facilitates redeployment.”

The phrase “all the circumstances” in s389(2) was interpreted broadly, allowing the FWC to weigh factors such as future business plans, risk appetite, workforce composition and operational decisions when assessing whether redeployment was a viable alternative to termination, bearing in mind that the inquiry necessitates consideration of a hypothetical scenario of “what would have been”.

Where the issue involves an assessment of whether a contractor should be displaced to allow for redeployment, consideration of the contractor’s contractual terms, degree of permanency and whether their work is specialist in nature, will all be relevant. However, as can be seen from the analysis set out above, the implications of this case are not limited to blended workforces of employees and contractors.

In relation to the Secondary Question, the High Court held that even if the standard of review applied by the FWC Full Bench was wrong (that is, if it should have simply determined whether redeployment was or was not reasonable, rather than allowing latitude to the Commissioner), this was not an issue amenable to judicial review. As such, the majority provided no guidance on the appropriate review standard.

The High Court has in effect left it to the FWC to determine the correct standard of appellate review, which means the long-standing application of the discretionary standard of review to matters of this type will not be disturbed.

Key takeaways

This decision carries significant practical implications for employers who are undertaking organisational restructures. It confirms that the FWC can look beyond the surface of a redundancy and assess whether, in all the circumstances, it would have been reasonable to retain employees by reducing contractor engagement, or taking other steps which may have included rearranging the workforce.

Certainly, the time-honoured approach of providing displaced employees with a list of vacant roles now carries a much greater risk of being regarded as insufficient.

The High Court has now set a clear expectation that employers approach redeployment with a more creative and critical mindset. While sweeping structural changes are not generally required, businesses must be prepared to consider reasonable alternatives, possibly even if they involve some level of disruption or operational adjustment.

This nuanced approach required for redeployment is likely to prompt further litigation in the FWC, particularly around what constitutes a reasonable inquiry into insourcing where contractors are used.

The decision leaves open the complex question of where the line should be drawn between preserving employee roles and maintaining contractor arrangements. Grey areas include:

• labour hire arrangements where contractors are embedded in the business long-term and perform similar duties to employees;
• outsourced roles that are functionally interchangeable with internal positions, such as administrative support or maintenance; and
• future operational plans or other upcoming changes, such as when a contractor’s engagement is due to end shortly after redundancies are made, raising the question of whether employees could have been retained to fill that gap.

These scenarios illustrate the nuanced balancing act employers must now perform.

[1] [2025] HCA 29.

If your business needs assistance with navigating the redundancy process, please reach out to the team at Kingston Reid.

The Australian Human Rights Commission (AHRC) is increasing its attention on employers’ efforts to prevent workplace sexual harassment, sex discrimination and victimisation. Focusing on high-risk industries like retail and hospitality, the AHRC is shifting from reactive complaints to a more proactive, systemic prevention strategy.

The AHRC’s continued emphasis reflects a broader cultural shift in Australian workplace norms. Employers across all sectors should take proactive steps to review their practices, engage with available resources and ensure they are not only meeting but exceeding their obligations under the Sex Discrimination Act 1984 (Cth) (the Act).

Understanding positive duty obligations

Introduced in 2022, s47C of the Act imposes a positive duty on employers and persons conducting a business or undertaking to take reasonable and proportionate measures to eliminate, as far as possible, sex discrimination, sexual harassment, sex-based harassment, hostile workplace environments on the grounds of sex and related acts of victimisation. This duty applies to all employers and extends to conduct by their employees, workers, agents, and, in some cases, third parties such as customers and clients.

The AHRC makes it clear that “reasonable and proportionate” steps will vary depending on the size, resources and risk profile of each business. Nonetheless, all businesses are expected to address seven core standards: leadership, culture, knowledge, risk management, support, reporting and response and monitoring and transparency. Unlike previous frameworks which largely relied on individual complaints, the positive duty compels employers to act proactively. Prevention is now the legal standard, not merely a best practice.

The AHRC’s compliance and enforcement strategies

Since December 2023, the AHRC has had the power to monitor and enforce compliance with the positive duty. In the 2024-25 financial year, the AHRC commenced formal inquiries into businesses in the Retail Trade, Accommodation & Food Services, Finance and Transport, Postal & Warehousing sectors, collectively covering approximately 7,500 workers. These inquiries were triggered by evidence of serious unlawful conduct, sourced from workers, regulators and media reports.

In June 2025, the AHRC released its Speaking from Experience report, drawing on the lived experiences of over 300 victim-survivors from diverse backgrounds. The findings expose persistent barriers to safety and justice, particularly for marginalised groups, and underscore the need for systemic reform.

The report sets out 11 recommendations which emphasise the need for cultural change, leadership commitment and transparent reporting, alongside calls for legislative reform to strengthen employer accountability. Notably, it recommends the introduction of civil penalties for breaches of the positive duty, enhanced information sharing between regulators, and restrictions on the use of non-disclosure agreements in workplace sexual harassment cases.

The Australian Law Reform Commission (ALRC) also recommended civil penalties for breach of the positive duty in its January 2025 Safe, Informed, Supported: Reforming Justice Responses to Sexual Violence report.

For 2025-26, the AHRC will continue to prioritise proactive compliance and enforcement in the Retail Trade and Accommodation & Food Services industries, which are identified as high-risk due to their large workforces and elevated exposure to sexual harassment.

The AHRC’s proactive compliance and enforcement strategies are scheduled to launch in September 2025. In the interim, as of July 2025, the AHRC has released several new resources and tools, including updated online learning modules and educational animations, tailored for broad dissemination across industry, government and community sectors. Further, they are working toward:

• creating a compliance survey for medium and large retailers, assessing adherence to the seven positive duty standards, with plans to extend this approach to the Accommodation & Food Services sector;
• creating an education package for senior leaders of large retail businesses, focusing on practical tools to facilitate compliance and address concerns about their responsibilities; and
• hosting the second National Regulator Roundtable in September 2025, which will bring together federal, state and territory regulators to coordinate efforts and measure regulatory effectiveness.

Legal and practical implications for businesses

Civil penalties for breaches of positive duty are now being considered as both the AHRC and ALRC recommend this reform. NSW has already amended its legislation for public sector employees. If implemented, employers risk significant financial and reputational consequences for non-compliance, alongside current enforcement measures like compliance notices and enforceable undertakings. To satisfy positive duty obligations, businesses must:

• Conduct risk assessments: identify and address specific risk factors in their workplace, including those arising from third-party interactions;
• Review and update policies: ensure policies on respectful behaviour, unlawful conduct, and reporting are current, accessible and consistently enforced;
• Implement training and awareness programs: provide regular, tailored education for all staff, including leaders and managers, with a focus on intersectionality and trauma-informed approaches;
• Establish robust reporting and support systems: offer multiple, accessible avenues for reporting, ensure timely and person-centred responses and provide appropriate support to those affected; and
• Monitor, evaluate and report: collect and analyse data on workplace culture, incidents and outcomes, and use this information to drive continuous improvement.

Broader significance and potential impact

The AHRC’s initiatives represent its ongoing commitment towards fostering safer, more respectful and inclusive workplaces across Australia. With positive duty compliance now established as the legal minimum, organisations are expected to demonstrate leadership, invest in cultural change and take meaningful, sustained action to prevent harm. This shift towards proactive, preventative regulation is intended to improve workplace safety, promote greater inclusion and reduce the prevalence of sexual harassment and discrimination. However, businesses must be prepared for increased scrutiny, higher compliance expectations and the possibility of civil penalties for serious or repeated breaches.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.

July 1, 2025

The NSW Government has now introduced major industrial relations and work health and safety reforms.

On Friday 27 June 2025, the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (NSW) (Bill) passed both houses of parliament and will amend the Industrial Relations Act 1996 (NSW) (IR Act) and the Work Health and Safety Act 2011 (NSW) (WHS Act). The amendments for the IR Act are specific to all state and local government employers.

According to the NSW Government, the Bill is aimed at modernising workplace protections, improving gender equality outcomes and strengthening the jurisdiction of the Industrial Relations Commission (IRC) in addressing critical issues, including sexual harassment and bullying.^[1]  The Bill is part of, and complements, the proposed reforms separately introduced for the state’s workers compensation system under the Workers Compensation Legislation Amendment Bill 2025 (NSW).

The changes in the Bill are important and potentially far-reaching.

Changes to the WHS Act

Upon introducing the changes to the WHS Act, the Minister for Industrial Relations and Work Health and Safety, Sophie Cotsis, said that the Bill focused on measures to strengthen work health and safety protections for workers and that the NSW Government wants employers, unions and the regulator working together to protect workers from harm. ^[2] 

The key changes to the WHS Act are summarised below.

Changing the status of approved Codes of Practice

Persons conducting a business or undertaking (PCBU) will be required to comply with approved Codes of Practice or otherwise manage hazards and risks in a way that achieves an equivalent (or higher) standard than that required under the approved Codes of Practice.

Currently, compliance with these codes is not mandatory although they are admissible in proceedings as evidence of whether there has been compliance with a duty or obligation.

Expanding the rights of WHS entry permit holders

Union officials exercising right of entry to inquire into suspected contraventions of the WHS Act will be able to take photos, videos, measurements or conduct tests relevant to the suspected contravention.

During the entry, if the union official comes to reasonably suspect another contravention of the WHS Act, the union official will also be able to exercise their powers in relation to that new suspected contravention.

A new disputes avenue for ‘WHS Matters’

A new disputes avenue for ‘WHS Matters’ will be created allowing parties (a PCBU, workers, a Health and Safety Representative (HSR) or a registered organisation such as a union) to take a dispute to the IRC for issues that will constitute ‘WHS Matters’.

‘WHS Matters’ is defined to include, but is not limited to, work group determinations, requests by HSRs, health and safety committee matters and issues about the cessation of work.  The IRC will be allowed to deal with the dispute as it sees fit (e.g., mediation, conciliation or arbitration) and parties will have to bear their own costs, unless an exception applies.

Upon commencing a dispute, any involvement by an inspector will have to stop and an inspector cannot subsequently be appointed to resolve the dispute unless the dispute concerns an immediate or imminent exposure to a hazard.

Expanding the power of unions to commence proceedings

Registered organisations, such as unions, will have an expanded  power to commence proceedings for an offence under the WHS Act.^[3] 

Prior to the Bill, the power had been limited to commencing proceedings for Category 1 or Category 2 offences (which are limited to offences in relation to health and safety duties) and only in circumstances where the regulator had declined to commence proceedings and, following a referral to and subsequent advice from the Director of Public Prosecutions to commence proceedings, continued to decline to commence proceedings.

This process has proven to be quite a barrier. With the passing of the Bill, the power to prosecute will be available if the registered organisation has consulted with the regulator about an intention to commence proceedings and the regulator has declined to commence the proceedings. Registered organisations will also have the power to commence proceedings for any offence under the WHS Act. This is a notable change.

The current restriction on the court to not pay any portion of a fine or other penalty to a registered organisation will also be removed.

Registered organisations will have a new power to commence proceedings for contraventions of civil penalty provisions under the WHS Act which will extend to Part 7 – Workplace entry by WHS entry permit holders (i.e., right of entry exercised by union officials).

In addition to commencing proceedings, unions will be added as eligible persons for the purpose of making applications for reviews of a number of reviewable decisions (provided the union represents a worker(s) whose interests have been affected by that reviewable decision).

Limitation period for commencing proceedings

Extensions to the limitation period will be allowed, with leave of the court, if the court is satisfied that it would be in the interests of justice. As explained by Minister Cotsis, this particular change “responds to situations in which there is delayed onset of injury or illness, such as in the case of some dust diseases, following a worker’s exposure to a risk of harm”.^[4]

Information sharing and reporting

Provisional Improvement Notices issued by HSRs to PCBUs will need to be given to the regulator.

The options for the regulator to be able to share information with other agencies, including law enforcement agencies, and individuals will be expanded. These changes include adding an exception to the current confidentiality requirement applicable to information and documents that are obtained when exercising a power or function under the WHS Act, which will allow certain individuals (e.g., HSRs and persons who hold office in, or are an employee of, a registered organisation) access to such information and documents provided they relate to the inspection, or investigation, of a matter raised by that individual with the regulator.

The regulator will be required to prepare a report every six months in relation to complaints received about “psychosocial matters”, the statutory notices issued about “psychosocial matters” and any insights about the issuing of those statutory notices, including any recommendations for improving psychosocial work health and safety and reducing psychological injuries.

Key takeaways

Duty holders need to be prepared for inquiries on how risks to health and safety are being managed.

The change in status for approved Codes of Practice should prompt PCBUs to consider how they have approached these codes to date and whether improvements are needed to ensure compliance.

The changes in relation to worker consultation, representation and participation should also prompt review of the relevant parts of a PCBU’s system of work, including any protocols for right of entry.

According to Minister Cotsis, one of the aims of the reforms was to “establish the conditions necessary to drive tripartite collaboration” among employers, unions and the regulator to prevent workplace injuries and deaths.^[5] The role of the union under the WHS Act as a result of the changes has certainly grown.

Conclusion

The Bill awaits assent with the changes to commence on a day to be confirmed.

Please do not hesitate to contact the authors for a detailed briefing of the Bill.

This is part two of a two-part Insight series. For an overview of how the Workplace Protections Bill is changing the Industrial Relations Act 1996 (NSW), please see part one of the series here.

[1]Ministerial media release, Minns Labor Government introduces flagship legislation to prevent psychological and physical workplace injuries, 27 May 2025.

[2] Second Reading Speech by Minister Cotsis (27 May 2025).

[3] ‘Registered organisations’ will be defined as industrial organisations of employees under the IR Act or an association of employees registered, or taken to be registered, under the Fair Work Act 2009 (Cth).  The registered organisation must have a member(s) concerned in the matter to which the proceedings relate.

[4] Second Reading Speech by Minister Cotsis (27 May 2025).  This change follows a decision in the Court of Criminal Appeal, which concerned two workers exposed to silica dust who died from silicosis; the prosecution by SafeWork NSW was dismissed because it was filed out of time and after the limitation period had ended: Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105. SafeWork NSW was refused special leave to appeal: SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] HCATrans 83 (25 November 2024).

[5] Second Reading Speech by Minister Cotsis (27 May 2025).

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.

The NSW Government has now introduced major industrial relations and work health and safety reforms.

On Friday 27 June 2025, the Industrial Relations and Other Legislation Amendment (Workplace Protections) Bill 2025 (NSW) (Bill) passed both houses of parliament and will amend the Industrial Relations Act 1996 (NSW) (IR Act) and the Work Health and Safety Act 2011 (NSW) (WHS Act).

The amendments for the IR Act are specific to all state and local government employers.

According to the NSW Government, the Bill is aimed at modernising workplace protections, improving gender equality outcomes and strengthening the jurisdiction of the Industrial Relations Commission (IRC) in addressing critical issues, such as sexual harassment and bullying.^[1] The Bill is part of, and complements, the proposed reforms separately introduced for the state’s workers compensation system under the Workers Compensation Legislation Amendment Bill 2025 (NSW).

The changes in the Bill are important and potentially far-reaching.

Changes to the IR Act

Described by the Minister for Industrial Relations and Work Health and Safety, Sophie Cotsis, as “critical measures,” the changes focus on five key areas:

1. gender equality;
2. protections relating to the freedom of association and victimisation;
3. prohibition of sexual harassment;
4. stopping bullying and sexual harassment; and
5. the IRC’s powers in resolving industrial disputes.

New “objects” for the IR Act

The objects of the IR Act will be amended to ensure there is a greater focus on achieving “gender equality”, as opposed to just “equal remuneration”, and in “preventing and eliminating discrimination, bullying and sexual harassment in the workplace”.

These new objects are reflected in the other changes to the IR Act and will be a consideration of the IRC in the way that it determines any matters before it.

Industrial disputes – arbitration orders, recommendations and directions

The IRC has always had powers to issue recommendations and directions in dealing with industrial disputes. Now, the changes clarify that such recommendations and directions are not subject to, or are to be swayed by, the interests or attitudes of the disputing parties.

If a party does not comply with a recommendation or direction, they must outline in writing why they have not complied so that the IRC can determine whether a further conciliation is appropriate.

The IRC will be empowered to make arbitration orders (that apply from the date of the order or a later date), including on a final or interim basis, which will effectively stop an industrial dispute. Breaching such orders incurs a civil penalty of $25,000 (more on this below).

An extension of the IRC’s dispute resolution jurisdiction will now permit it to deal with disputes about injured workers, which may include deciding matters around returning to work and the types of alternative duties that might be suitable.

Expanded victimisation protections

The current IR Act requires an employee, seeking to commence a victimisation claim, to establish (or at least allege) that they have suffered a detriment because of the existence of a “protected matter” outlined in s210(1) of the IR Act.

A rebuttable presumption will then apply – it is presumed that an employee experienced detriment because of the alleged protected matter, unless the employer satisfies the IRC that the alleged matter was not a substantial and operative cause of the detriment.

With the changes, the scope of protected matters will be expanded significantly, such that an employee could now commence a victimisation claim if they suffered a detriment because they:

• are entitled to a benefit or a claim under workers compensation;
• have a role or responsibility under an industrial legislation or instrument;
• engage in or propose to engage in industrial organisation activities;
• have a “characteristic” (not just an attribute) protected from discrimination under the Anti-Discrimination Act 1977 (NSW) (AD Act);
• made a “complaint” or “inquiry” about their employment – as federal system employers know, these concepts have been interpreted broadly; or
• made a “complaint” or “inquiry” to a public authority about their employer (including about matters other than their employment).

These changes will likely increase the number of victimisation claims in the IRC. They create an alternate option for employees who feel they have been subjected to discriminatory behaviour, although employees cannot commence both a claim under anti-discrimination legislation (federal or state) and a victimisation claim – it’s one or another.

The changes introduce an “objective” element to the rebuttal presumption. An employer must satisfy the IRC that from an “objective” perspective, the alleged protected matter was not a substantial and operative cause of the detriment. Relying on the subjective evidence of a decision maker may be not sufficient to meet this “objective” test and the IRC may rely on “unconscious factors” when determining the cause of the detrimental action.

Prohibition against sexual harassment in connection with work

The changes introduce an express prohibition against “sexual harassment” towards another person “in connection with” that person being an employee, a prospective employee or a person conducting a business or undertaking.

The definition of “sexual harassment” has the same meaning as in the AD Act – being an unwelcome sexual advance, an unwelcome request for sexual favours, or unwelcome conduct of a sexual nature, by one person towards another person, in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

An employer is vicariously liable if their employee or agent engages in sexual harassment, and did so in connection with their employment or their duties as an agent, unless the employer establishes that they took all reasonable steps to prevent the employee or agent from engaging in the unlawful act.

Stop bullying and sexual harassment orders 

Employees in the federal jurisdiction have had access to stop bullying and stop sexual harassment orders for some time now.

The incoming NSW jurisdiction aims to “fill a gap” for NSW state and local government employees, which extends beyond the federal scheme in some respects.

The IRC will be empowered to make any order it considers appropriate to prevent a person from being bullied or if a person has been sexually harassed.

Damages of up to $100,000 are available.

Download a summary here which sets out more detail regarding this new jurisdiction.

Provision of information during bargaining

The changes will require the provision of information about gender equality in the context of mutual gains bargaining or as an element of good faith bargaining, placing greater focus on how proposed terms and conditions achieve gender equality in the workplace.

Civil penalty jurisdiction and other changes

The IR Act will include provisions that allow the Industrial Court (and the IRC in court session) to make civil penalty orders in the event an employer contravenes a civil penalty provision.

The IRC in court session has been granted express statutory power to grant injunctive relief to restrain further contraventions of civil penalty provisions.

The small claims division of the Industrial Court now has jurisdiction to award up to $100,000 (previously $10,000).

Key takeaways

Employers must become familiar with the changes – they affect all aspects of industrial relations and the employment relationship, from bargaining to the handling of complaints made by employees.

The changes may result in a greater number of victimisation claims, particularly in the areas of alleged detriment arising from workplace complaints or association with a union or industrial organisation.

The IRC having access to compensation orders of up to $100,000 when granting stop bullying or anti-sexual harassment orders makes these orders more impactful than their federal counterparts.

The defences to vicarious liability for sexual harassment continue to apply – clear evidence of robust training and policies will support an argument that all reasonable steps have been taken to stop employees from engaging in sexual harassment.

Conclusion

The Bill awaits Royal Assent with the changes to commence on a day to be confirmed.

Please do not hesitate to contact the authors for a detailed briefing of the Bill.

This Insight article is part one of a two-part Insight article series. For an overview of how the Workplace Protections Bill is changing the Work Health and Safety Act 2011 (NSW), please see part two of the series here.

[1] Ministerial media release, Minns Labor Government introduces flagship legislation to prevent psychological and physical workplace injuries, 27 May 2025.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.

June 24, 2025

The end of the 2024-25 financial year is just one week away, which means there are key changes that employers need to be aware of – most notably the 3.5% increase to the National Minimum Wage and all modern award minimum wages which will take effect from 1 July 2025.

Today, the high income threshold, unfair dismissal compensation limit and other key figures, which also take effect on 1 July 2025, have also been released.

Kingston Reid has prepared its 2025 Workplace by Numbers infographic, which you can download here, for a snapshot of the key figures.

June 18, 2025

The Federal Court of Australia has awarded a long-serving nurse more than $400,000 after it found her former employer ended her employment in contravention of ss340 and 351 of the Fair Work Act 2009 (Cth) (FW Act).

There are a number of important lessons employers can take from this case, including the importance of addressing workplace grievances early and robustly, having multiple reporting avenues available and ensuring decisions on the termination of employment are made independently with the information relied on tested and documented.

What happened?

Ms Han, a registered nurse, had worked on a permanent part-time basis at St Basil’s Homes (St Basil’s) aged care facility in Lakemba, NSW for over nine years. Ms Han, a Chinese Australian worked in a team of Filipino colleagues, reporting to a Filipino manager.

The complaints

In late 2019, Ms Han raised concerns about the workplace with her manager, including:

• that her colleagues had formed a clique and because of her race, excluded her from key communications, handovers and discussions;
• that she was routinely ignored during shifts;
• that her workload had been increased and she was given unpleasant tasks disproportionately to her Filipino colleagues;
• safety and clinical issues relating to inadequate staff to patient ratios resulting in substandard care;
• witnessing abuse resulting in a patient suffering bruising; and
• witnessing an error in medication being dispensed to a patient,
  (Initial Complaints).

When Ms Han’s Initial Complaints were not actioned, she raised further complaints about victimisation and being targeted, including being spoken to disrespectfully, having her complaints minimised or dismissed by her managers and that her performance was being unfairly scrutinised by management and colleagues (Further Complaints).

St Basil’s response

After raising the Further Complaints, St Basil’s suspended Ms Han based on her own complaints regarding patient care, alleging that it was Ms Han who had failed to provide adequate care to a patient, despite Ms Han having raised the concern.

St Basil’s terminated Ms Han’s employment on the basis of this allegation without providing her a genuine opportunity to respond. St Basil’s further reported Ms Han to AHPRA alleging she was unfit to practice, a claim ultimately rejected by AHPRA.

The Court’s findings

Ms Han brought a general protections claim against St Basil’s on the basis that her dismissal had contravened ss340 and 351 of the FW Act, alleging the termination was a result of Ms Han having made the complaints, and her race.

Legal Findings

The Court found in favour of Ms Han, finding that Ms Han’s dismissal was causally connected to her complaints. In reaching this conclusion, the Court pointed to St Basil’s failure to:

• provide any contemporaneous evidence showing a lawful reason for the dismissal;
• document a fair and impartial disciplinary process; and
• distinguish Ms Han’s complaints from its decision to terminate her employment.

In terms of connecting the dismissal to Ms Han’s race, the Court found that St Basil’s:

• failed to investigate Ms Han’s complaints of racial exclusion;
• allowed the dominant Filipino group to influence management’s decision-making; and
• preferred the account of Ms Han’s colleagues, who belonged to the dominant racial group (Filipino) and disregarded Ms Han’s account without a proper basis.

Damages and civil penalties

Having found that St Basil’s engaged in unlawful adverse action against Ms Han, it then turned to the determination of appropriate damages and penalties.

Two factors were notable in this assessment. Firstly, in terms of loss, the Court awarded damages in relation to the period from the termination of employment, through to the date of the decision. This was a period of almost six years, with the employment ending in 2019, and the decision being issued in 2025.

Secondly, the Court had regard to the extreme psychological and emotional distress suffered by Ms Han arising from not only the conduct, but the improper process followed and the unfounded report to AHPRA.

The total award by the Court was $406,559.62, broken down as follows:

• $175,000 for past economic loss which was awarded for Ms Han’s lost earnings following the termination of her employment up until the decision;
• $61,559.62 for future economic loss, estimating that Ms Han would take 18 months to return work;
• $10,000 for future out-of-pocket treatment expense for continuing psychiatric care;
• $75,000 in general damages given the significant psychological harm, hurt and humiliation, suffered by Ms Han, particularly because her dismissal followed legitimate complaints and because the employer escalated its response by making an unfounded report to AHPRA; and
• $60,000 in civil penalties which was to be paid to Ms Han. This was broken down as $45,000 for St Basil’s serious breach of section 351 of the FW Act and $15,000 for St Basil’s breach of s340 of the FW Act.

This represented a total amount nearly 10 times Ms Han’s average annual salary as a part time worker.

Key takeaways

There are multiple learnings employers and HR professionals can take from this matter:

Treat complaints seriously and act early

Too often, workplace issues (spanning conduct, culture, conflict or even communication styles), particularly those which may be poorly articulated or potentially complex, are left to linger until they crystallise as formalised complaints or grievances. This can then result in complex investigations, workers’ compensation claims, or an employment relationship that has been too damaged by inaction to continue. Often, litigation follows.

Employers can stem the spread of unresolved issues in their workplaces (and consequential legal risks of allowing possible unlawful conduct to carry on undetected) by taking proactive and positive steps to address grievances early and directly. This does not always require an investigation, what it does require is some form of intervention to address the issues.

Investigate when required

Where there are serious complaints made, consider utilising an external investigator to ensure that the process is thorough and that decisions are not affected by any pre-existing biases or views about the complainant, or the validity of the complaint.

Appoint independent decision makers to ensure robust decision making

Where an individual is identified as part of a complaint they should not be involved in the decision-making process as this can undermine the independence of the process and contribute to the causal connection between the making of the complaint and the adverse action.

Equally, those persons responsible for making a decision ending employment should ensure that they take this responsibility seriously, interrogate the facts they are presented with and be clear about the reasons they are making the decision. This process ensures that an employer, and individuals, are in a position to respond to claims of adverse action where it is the decision maker who must show a rational and lawful reason for taking action.

Process matters

Employers who adopt a consistent and procedurally fair grievance processes are better placed to respond to general protections claims than those who don’t. Having a consistent process allows an employer to show that the approach taken was not different because of the person involved, and adopting procedural fairness allows the employer to rebut claims of emotional or psychological harm from any alleged unfairness.

The views expressed in this article are general in nature only and do not constitute legal advice. Please contact us if you require specific advice tailored to the needs of your organisation’s circumstances.