Insights & News

April 14, 2025

Employers are generally familiar with the anti-discrimination provisions of the Fair Work Act 2009 (Cth) (FW Act) and various state and federal anti-discrimination laws. But what is often missed is that discriminatory conduct in the workplace can also amount to a criminal offence under the model Work Health and Safety legislation.

Unlike discrimination under workplace relations laws, which typically results in civil liability, discriminatory conduct under the model Work Health and Safety legislation can in some circumstances be criminal in nature. That means that instances of discrimination can lead to prosecution, a finding of guilt and/or a criminal conviction and fine.

Discrimination under the WHS Legislation

The WHS legislation prohibits a wide range of ‘discriminatory conduct’ when done for a ‘prohibited reason’ tied to work health and safety.  Discriminatory conduct includes:

• dismissing or standing down a worker;
• altering a worker’s role to their detriment;
• treating a prospective worker less favourably; and
• refusing or terminating a commercial arrangement.

Prohibited reasons include a person’s involvement in WHS activities, such as:

• raising or proposing to raise WHS concerns;
• assisting a WHS inspector / regulator;
• acting as a health and safety representative (HSR) or committee member; and
• taking steps to ensure compliance with the legislation.

Crucially, the model Work Health and Safety legislation also captures those who request, authorise, assist, encourage or induce another person to engage in discriminatory conduct. This means that a person cannot get around potentially being penalised because that person did not directly engage in the discriminatory conduct themselves. Practically, this means that managers, supervisors, and even senior executives may be personally liable for authorising discriminatory conduct of another worker if the conduct is ignored.

In addition to criminal penalties, affected individuals may bring a civil claim under the model Work Health and Safety legislation if they believe they have been subject to discriminatory or coercive conduct for a prohibited reason. The orders that may be sought include compensation, reinstatement or an offer of employment in the case of a prospective worker, or any other order the relevant court or tribunal considers appropriate.

First prosecution for discriminatory conduct under the model Work Health and Safety framework

A recent decision of the NSW District Court serves as a pointed reminder. In SafeWork NSW v Qantas Ground Services Pty Ltd (No. 4),^[1] Qantas Ground Services (QGS) was convicted of engaging in discriminatory conduct against a worker who had exercised his powers as a health and safety representative by directing workers to cease unsafe work at the onset of the COVID-19 pandemic. The court found that QGS stood the worker down for a prohibited reason under the Work Health and Safety Act 2011 (NSW) and in doing so, effectively punished him for lawfully exercising a power under that Act.

The consequences were serious. QGS was fined $250,000 and was ordered to pay $21,000 in compensation to the worker for both economic loss and the hurt and humiliation he experienced. The Court noted that this was the first prosecution of its kind under the national model Work Health and Safety framework. As such, the penalty was intended to send a strong message to other persons conducting a business or undertaking (PCBUs).

What PCBUs need to do

Organisations must respond to work-related conduct in a proactive way, just like how they would treat the exercise of workplace rights under the FW Act. Key personnel, particularly in human resources, safety leadership, and operational management, must be aware that adverse action taken against a worker in response to WHS activity could expose them — and the organisation — to prosecution under model Work Health and Safety legislation. This means that training, documentation, and careful handling of performance and conduct issues are essential, particularly when WHS issues have been ventilated or are in the background.

[1] [2024] NSWDC 53.

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.

In a decision that provides welcome clarification for employers navigating the blurry edges of personal leave entitlements, the Fair Work Commission (FWC) has handed down its decision in Australian Workers’ Union v Cement Australia Pty Limited T/A Cement Australia [2025] FWC 137.

The case turns on whether an employee was entitled to use personal leave during a 10-week recovery from elective surgery, and more importantly, whether the employer could lawfully refuse that request, in light of previous high absenteeism.

The answer? Yes, it could.

The facts

The Applicant, a long serving mine operator employed by Cement Australia covered by the Cement Australia Gladstone Union Collective Agreement 2022 (the Agreement), underwent elective knee surgery in May 2024, prior to his planned retirement taking place in August 2024. He requested three months’ paid personal leave to recover from the surgery.

However, the Employer, Cement Australia, in considering the Employee’s prior history of excessive sick leave, declined to approve more than a single day of leave, relying upon the Excessive Personal/Carer’s Leave Absenteeism clause of the Agreement.

In the preceding year to this request, the Employee had taken 58 days of personal leave. When Cement Australia compared the Employee’s total hours of personal leave taken during his duration of service with Cement Australia and compared it to the National Employment Standards (NES), the Employee was in a deficit of 1,500 hours. Cement Australia told the Employee to use annual leave, long service leave, or take unpaid leave for the requested period.

The Australian Workers’ Union (AWU), acting on the Employee’s behalf, lodged a dispute under s739 of the Fair Work Act 2009 (Cth) (FW Act), arguing that Cement Australia had misapplied the Agreement and unlawfully withheld leave.

The legal landscape

Under the NES, employees (other than casuals) are entitled to 10 days of paid personal/carer’s leave per year for illness or injury. However, this entitlement can be supplemented by an enterprise agreement, as was the case here, with the Agreement offering generous unlimited paid personal leave access, albeit with caveats.

The Agreement sets out a framework for personal leave use, and while it affirms generous access to paid leave for genuine illness or injury, it also empowers the Employer to:

• monitor high levels of absenteeism;
• counsel or discipline employees who display patterns of misuse; and
• review and, if necessary, cease payment for further leave where concerns persist.

Notably, the Agreement contains provisions that allows for a review after three months of continuous personal leave to determine whether payment should continue.

The AWU’s position

The AWU’s primary argument was one of timing and process: Cement Australia had jumped the gun.

According to the AWU, the Employer could not decline personal leave pre-emptively. Rather, it needed to approve the leave first and only later review the appropriateness of continued payment once three months had passed. The AWU asserted that the Employee had a genuine need for leave and that any concern about excessive use should have been addressed through post-facto review, not upfront refusal.

Cement Australia’s defence

Cement Australia’s position was pragmatic, it had already counselled the Employee in December 2023 about his extensive sick leave. That was, in its view, sufficient to activate its right under the Agreement to justify denying further paid leave for an elective procedure, especially one immediately preceding his anticipated retirement.

They stressed that the Agreement does not create an unqualified right to take unlimited paid personal leave. Cement Australia viewed the Excessive Personal Leave Absenteeism clause in the Agreement as a proactive tool, not a retrospective one, allowing them to refuse future paid leave based on past conduct, provided the Employee has been appropriately warned.

The FWC’s findings

Commissioner Hunt agreed with Cement Australia’s argument. Key takeaways from the ruling include:

• The Agreement allowed pre-emptive refusal of paid personal leave, where the Employee has been counselled for high absenteeism. It is not necessary to wait until leave has been taken to make that call.
• The three-month review clause under the Agreement is a separate mechanism, it only applies to assessing whether continuation of already-approved leave remains appropriate. It does not override the Employer’s discretion.
• The elective nature of surgery is irrelevant, as the Commissioner noted that “Employees are entitled, pursuant to the NES to take paid leave from work whether any medical treatment is planned or elective”. Elective procedures, including cosmetic surgeries, may still qualify, provided there is a genuine incapacity to work and supporting medical evidence.
• Intent to retire may be relevant, but only as part of a broader assessment or in considering whether a return to work is likely.

The FWC ultimately held that Cement Australia had acted lawfully in refusing paid personal leave, having properly invoked its rights under the Agreement and given the Employee fair warning.

Key takeaways from the Decision

The Cement Australia decision is a timely reminder that while personal leave entitlements under enterprise agreements may exceed the NES, they are rarely without limits.

Here are the practical lessons for employers:

1. Agreements do not need to be toothless: If your enterprise agreement includes a provision to manage excessive leave, use it, but follow due process. Document counselling and make it clear that future entitlements may be affected. Had Cement Australia failed to counsel the Employee, the decision of the FWC may have been very different.
2. Set expectations early: If an employee has a pattern of high absenteeism, don’t wait for another leave request to raise concerns. Formal correspondence that flags a potential cessation of paid leave strengthens your position and reinforces the company’s position to the employee and, if relevant, the union.
3. Leave denial must be based on genuine grounds: Even with discretion, employers should have a solid evidentiary basis (e.g. excessive leave history, failure to engage in return-to-work processes) for denying personal leave, especially when there’s medical evidence of incapacity.
4. Elective procedures are still ‘sick leave’: Don’t assume you can deny sick leave just because the procedure is elective. If the recovery renders the employee unfit for work, and they’ve supplied evidence, the NES and most agreements will entitle them to paid leave, unless other enterprise agreement clauses (like the excessive absenteeism clause in this Agreement) apply.

In short, employers can say no to sick leave, but only if the enterprise agreement or other industrial instrument says so, and you’ve followed the required procedural processes. We’re sure Cement Australia breathed a sigh of relief when this decision was released and that there is no doubt that they will be bargaining in all future enterprise agreements to keep the Excessive Absenteeism clause in.

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.

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2024 Reflections: chaos… and opportunity?

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

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

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

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

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

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

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

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

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

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

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