Insights & News

May 16, 2025

The recently reconstituted Industrial Court of New South Wales has delivered its first sentencing decision in a work health and safety (WHS) prosecution, with Justice Paingakulam handing down judgment in SafeWork NSW v Hibernian Contracting Pty Ltd [2025] NSWIC 4.

For those familiar with the sentencing approach historically adopted by the District Court in WHS matters, much of the structure of the judgment and application of principles will be familiar, for example the non-delegable duties when engaging contractors. That said, the decision offers useful clarification regarding the treatment of post-incident conduct in mitigation.

Background

The proceedings arose from a 2022 incident at a Camden Council works depot, where a labourer sustained serious injuries following an explosion. The worker had used a grinder on a pipe attached to a waste oil tank, which ignited residual oil vapours.

Hibernian Contracting Pty Ltd pleaded guilty to a Category 2 offence under section 32 of the Work Health and Safety Act 2011 (NSW) (WHS Act). He suffered significant burns requiring two skin grafts.

The judgment

The structure of the judgment will be familiar to those familiar with judgements from the District Court. The Industrial Court assessed objective seriousness by reference to foreseeability, the availability of reasonably practicable control measures, and relevant guidance materials, including codes of practice and the Australian Standards. That approach is consistent with the WHS sentencing decisions of the District Court.

Helpfully, the judgment gives particular attention to the role of sentencing legislation, particularly section 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 23 permits a sentencing court to impose a lesser penalty where the offender has provided assistance to law enforcement authorities.

While cooperation with regulators is commonly advanced in mitigation, it is less frequently the subject of detailed judicial analysis in WHS decisions. In this case, Justice Paingakulam engaged directly with the operation of section 23(1), and whether Hibernian’s post-incident conduct amounted to “assistance to law enforcement authorities” for the purpose of section 23.

At [89] of the judgment, Her Honour identified several factors relevant to the assessment of such assistance in a WHS context, being:

1. Assistance provided in response to a regulatory notice may vary in completeness and reliability. If information is false or misleading, that may attract criminal sanction.
2. Bare compliance with a regulatory notice, particularly where non-compliance would itself be an offence, is not ordinarily a mitigating factor.
3. Proactive engagement with a regulatory process is not viewed as favourably as wholly voluntary cooperation. It may, however, be distinguished from assistance that is merely incidental or unwitting.
4. The time, effort and cost involved in responding to multiple regulatory demands (particularly where directed to a corporate entity and its officers) are relevant considerations.
5. The ease with which remedial steps are implemented in response to an improvement notice may assist the prosecution in demonstrating that such measures were reasonably practicable.
6. Prompt compliance can also benefit the prosecution, particularly in light of statutory limitation periods under the WHS Act.

Key Takeaway

Whilst this is the first judgement to come out of the Industrial Court, Her Honour’s analysis provides valuable guidance for regulators and duty holders alike, clarifying when post-incident cooperation will be treated as a mitigating factor capable of justifying a reduced penalty, and distinguishing it from mere compliance with statutory obligations.

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.

May 6, 2025

The emphatic re-election of the Albanese Government with a majority of at least 10 seats (but probably a lot more when final votes are counted), is something that many experts failed to predict. Similarly hard to predict was the likelihood that the Government and the Greens may have the numbers to pass legislation in the Senate without the need to negotiate with independent crossbenchers.

Employers, and particularly small business, benefited, to a certain degree, in the role played by independent crossbenchers, such as Senator David Pocock and Senator Jacquie Lambie, to moderate some of the Albanese Government’s first-term industrial relations legislation.

This new dynamic in the Senate for the Albanese Government’s second term means that the combined policy positions of the Greens, Labor and the Australian Council of Trade Unions (ACTU) will set the agenda for any further changes to Australian workplace law, of which there can be no doubt will occur. The extent of change will be a balance between a powerful Government seeking to maintain that power by not spending too much political capital, with a more radical agenda of expanded union and worker rights and regulation that becomes for the left what WorkChoices was for the right.

As to where those changes are likely to arise, this is what we know so far…

Wage regulation and bargaining reform

The Albanese Government has pledged to legislate protection for penalty rates into the Fair Work Act 2009 (Cth) (FW Act), limiting employer capacity to trade off these entitlements for higher base pay during bargaining or award variations. One distinct possibility is that the Greens may push for standard penalty rates as part of the minimum National Employment Standards, rather than protection of award penalty rates.

The ACTU and the Greens both support stronger minimum wage regulation, with the Greens advocating a statutory floor at 60% of the median full-time wage, and the ACTU pushing for above-inflation wage increases across all sectors. In its first term, the Albanese Government empowered the Fair Work Commission (FWC) to set minimum standards for “employee-like” workers, particularly in rideshare and food delivery services. The Greens and the ACTU advocate full award coverage and enforcement powers in the sector. This could see extensive award-like regulation for these industries. The ACTU has also publicly backed expansion of this regime to include contractors operating offline, including freelancers. The ACTU is also pushing the Albanese Government to scrap junior pay rates across the retail, food and pharmacy sectors, if unions aren’t successful in their current application before the FWC.

Overall, organisations should expect minimum conditions in legislation and awards that are more rigid resulting in a higher cost for flexibility in working hours. This creates a need to revisit flexibility practices through contractual and policy mechanisms rather than enterprise agreements, to avoid a direct ratcheting of pay in exchange for flexibility across whole workforces.

Ban on non-compete clauses

The Albanese Government will prohibit non-compete clauses for workers earning below the high-income threshold (currently $175,000 and adjusted annually on 1 July), effective from 2027. The ACTU and the Greens both support this, citing labour mobility and innovation benefits.

An important detail will be the extent of the prohibition – will it be limited to pure non-compete clauses (i.e. a restriction on working for a competitor post-employment) or extend into wider areas such as wage-fixing agreements and restrictions on poaching customers and staff?

A proposal to close “loopholes” in Australian competition laws that may be enabling employers to fix wages through anti-competitive arrangements to cap pay and conditions and use ‘no-poach’ agreements to stop workers from moving to competitors has been flagged as part of these reforms, however the full extent of these aspects of the reforms are yet to be outlined in depth.

While the intended high-income threshold will allow non-compete clauses to continue for high-paid employees in senior roles, there are many sales and commission-based roles (in areas such as real estate and financial services) where employees have a low base salary but an at-risk component much higher than the relevant high-income threshold. These are roles that the proposed laws are likely to prevent from having non-compete provisions, making it harder for employers to protect their market positions.

Organisations may need to consider alternatives to non-compete provisions, such as retention benefits or payments and deferral of at-risk payments contingent on employees being a “good leaver”.

Multi-employer and sector-wide bargaining

Building on the Secure Jobs, Better Pay reforms of 2022, the Albanese Government has said that it will continue supporting multi-employer bargaining, particularly in feminised sectors like aged care and early childhood. For example, the Early Childhood Education and Care Multi-Employer Agreement approved in December 2024 has now reached 300 employers and approximately 40,000 employees. The ACTU strongly backs this model, citing a $6.3 billion annual increase in wages attributed to its expansion.

Organisations, especially in award-covered or unionised sectors, should prepare for intensified bargaining environments, rising wage costs, and greater scrutiny of bargaining practices. Planning for wage increases aligned with cost-of-living metrics will be critical.

Portable entitlements

While this commitment was put on ice in its first term, it’s likely the Albanese Government will progress a universal portable leave scheme (or schemes), particularly targeting casual, gig, and project-based workforces. This has broad support from the Greens and unions, despite business concerns over administrative and cost burdens.

While the archaic origins of long service leave as a colonial-era employment benefit served to allow employees an opportunity to sail home to Britain, the exact scope of the Albanese Government’s scheme, including the types of leave which may be covered is still unknown. It’s likely that the portable leave scheme, or schemes, would be funded by employers under an industry levy charge. The Albanese Government may look to the Victorian Government’s ‘Sick Pay Guarantee’ for inspiration, which provides casual, contract and self-employed workers access to sick leave.

Organisations with casual, gig and project-based employees will need to build the cost of compliance with the scheme into their wage setting plans. For those that respond quickly, portable leave can become a deferred benefit for employees, like superannuation, which is absorbed into lower increases in take-home pay.

Casual and labour hire reforms

The ACTU is pressing for a stronger Same Job, Same Pay framework to neutralise wage arbitrage via labour hire. This could result in access to these orders being simplified, following a policy review of the outcome of test cases currently before the FWC.

The Greens propose that “casual work should be limited to genuinely short-term, intermittent or seasonal work” and an enforceable right to permanent employment after six months, with exceptions requiring demonstrable business justification. The Greens’ policy supports collective bargaining rights and the right to strike, including for “precarious” workers such as casuals and gig workers. The ACTU is also calling for a review into the loading currently paid to casual workers, once the new casual changes have been bedded down.

Organisations with reliance on casual or labour hire workers will be under increased legal and reputational pressure to transition to models based on permanent employment. This is likely to see a rise in hybrid models such as the “day worker” in the construction industry where flexibility of engagement day by day sits alongside most of the benefits of permanent employment. Adapting to this will involve revisiting forms of engagement and rates of pay.

Employers should soon expect the finalisation of the National Labour Hire Registration Scheme, which has been developed by the States and the Federal Government during the Albanese Government’s first term, and seeks to harmonise the patch-work approach currently undertaken by the states in relation to labour hire registration.

Workplace flexibility and work-life balance

The Albanese Government’s existing laws on the right to disconnect will likely be strengthened, including enforceability clauses. The Greens advocate a codified right with penalties for employer breaches.

The Greens have called for national trials and a Fair Work test case to pilot a four-day week at full pay, overseen by a proposed National Institute for the Four Day Week. The Albanese Government has not formally adopted this yet, but has indicated openness to trial models in the public sector.

Given the impact of the Coalition’s abandoned proposal restricting working from home for the public sector during the election campaign, work-life balance is likely to be elevated by the Albanese Government and the Greens as an early issue of debate for the new parliament.

Organisations will need to invest in measures for managing remote workers and be ready for a difficult environment where the boundary between working from home and disconnecting from work needs to be defined.

Expanded leave and inclusion measures

The ACTU is lobbying for 10 days’ paid reproductive leave per year, the Greens are pushing for 12 and an increase of up to 52 weeks paid parental leave. The Albanese Government  is considering a review but has not yet committed to implementation.

The Albanese Government will legislate superannuation contributions on paid parental leave from 1 July 2025, aiming to reduce the retirement income gap for women.

The Greens support a complete phase-out of segregated disability employment models by 2030, in partnership with unions and advocates.

Organisations should prepare for a broader definition of leave entitlements and enhanced scrutiny on inclusion and diversity outcomes, especially in recruitment and workforce design. These are likely to appear in bargaining claims and there will be a push for expansion of the National Employment Standards.

Enforcement, safety and compliance

The Albanese Government and the Greens support the criminalisation of wage theft and industrial manslaughter under national law. A national harmonisation push is expected, so that these laws are adopted in states that do not already have them.

Organisations should expect greater potential for criminal exposure for underpayments and workplace safety breaches. Regulatory investigations and union complaints are expected to increase.

Industrial action, union rights and site access

The Greens are advocating increased union rights to access sites and engage in sectoral organising. The ACTU continues to push for protections of right of entry and limits on employer interference.

The ACTU is also set to press for a watering down of the employer capacity to lock out workers during industrial disputes.

Despite the significant pro-union reforms of the last term of government, union density in private sector employers has declined. The next stage of union-advocated reform is likely to be focussed on getting greater access to workplaces so that density can be increased. It also raises the old issue of “free riders” in enterprise bargaining who benefit from outcomes but are not union members.

Organisations should expect the role of unions to become a significant focus in future enterprise bargaining and a push for new forms of “bargaining fees” by another name, as a way of converting increased industrial power into membership and funding.

Artificial intelligence (AI) and automation

Organisations should also expect reforms in the second Albanese Government term which regulate employers use of AI and technology in the workplace. Multiple Government and Greens-controlled parliamentary inquiries have recommended changes to the FW Act which would restrict employers’ ability to introduce technological change in the workplace without more onerous consultation with, or perhaps the consent of unions and workers.

Meanwhile, the union movement has called for bans on the use of technology in hiring and firing of workers.

Organisations should expect to see greater scrutiny applied to their use of AI and technology in the workplace, with unions and workers given greater power in dictating how and when employers should modernise their workplaces.

Where to now?

The 2025–2028 term has potential to significantly shift Australian workplace relations even further. With the Albanese Government holding a mandate and the Greens driving labour reform in the Senate, employer operating models must now adapt to a workforce landscape that is more focussed on job security, regulation, and protection of worker and union rights.

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.

May 2, 2025

In the final weeks of the 2025 federal election campaign, the Albanese Government has pledged that if re-elected, it would legislate protections for penalty rates in modern awards. While it remains unclear how this will be implemented, the intent is clearly to restrict the Fair Work Commission (FWC) of its discretion to set penalty rates in modern awards, particularly to reduce existing penalty rates.

On 19 April 2025, Federal Workplace Relations Minister Murray Watt announced that:

“A re-elected Albanese Labor Government will legislate to protect penalty rates in awards, ensuring the wages of three million workers do not go backwards.”

Framed as a safeguard against erosion of the minimum safety net, this pledge has prompted significant backlash from employer groups and the Federal Opposition, who warn it undermines the authority of the FWC, reduces award flexibility for employees and increases the burden on employers from a compliance perspective.

The Albanese Government and unions dispute this characterisation of the policy and claim that it simply sets guidance for the FWC to consider in setting penalty rates, this guidance being: do not reduce penalty rates.

If legislated, this policy is significant because it takes discretion for the determination of minimum pay and conditions away from the independent FWC and locks it into legislation which can only be changed by parliament. The FWC has the expertise to independently assess the rapidly changing economic needs of business and workers and make decisions at any time. Making changes to legislation is far more difficult. The policy will make it more difficult for employers and employees who benefit from the certainty and simplicity of higher base annualised salary arrangements that compensate for penalty rates and are likely to push employers away from collective bargaining and into more individualised employment arrangements.

How did we get here?

The catalyst for the election commitment arose from the recent application to the FWC from the Australian Retailers Association’s (ARA) which proposes to amend the General Retail Industry Award 2020 and introduce an opt-in annualised salary arrangement for managerial and higher-level retail employees, which in effect would absorb penalty rates in exchange for higher base pay.

Minister Watt opposed the ARA’s application in his public submission to the FWC, claiming that it could lead to a reduction in worker entitlements, notwithstanding the ARA’s claim that the employees relevant to the application would receive considerably higher wages as a base line, that the arrangement would be opt-in and would have safeguards in place to ensure that employees would be better off overall.

Unions have also raised similar concerns as Minister Watt with recent employer applications to vary the Clerks Private Sector Award and the Banking, Finance and Insurance Award to enable employees under higher classifications to voluntarily agree to be paid a single weekly rate at least 55% above the award rate of pay, designed to offset certain entitlements, including penalty rates (commonly referred to as the ‘exemptions rate case’).

Despite these recent catalysts, this is not the first time Labor has announced a policy seeking to legislate protections for penalty rates.

Former Labor opposition leader, Bill Shorten, committed to reversing a 2017 FWC decision to reduce Sunday penalty rates in modern awards covering the retail and hospitality sectors if elected Prime Minister at the 2019 Federal election.

The 2017 FWC decision, which was upheld by the Full Federal Court, was criticised by the union movement, who campaigned publicly on the issue to pressure the major parties to legislate to reverse the decision.

This recent announcement from the Albanese Government goes further than just reversing a single decision of the FWC to reduce penalty rates under a particular modern award, to a general commitment to, seemingly, stop the FWC from exercising its discretion to reduce penalty rates under any modern award in the future.

Coalition’s stance on penalty rates

Peter Dutton, the Leader of the Opposition, labelled the recent proposal to legislate the protection of penalty rates a “stunt” and a “red herring”.

Mr Dutton confirmed that if the Coalition was elected to Government this Saturday (3 May 2025), it would preserve the status quo and allow the FWC to set wages and entitlements, including penalty rates, in modern awards as necessary.

Potential implications

While the Albanese Government and unions argue that the policy is needed to ensure that workers don’t lose pay when they work unsociable hours, such as on the weekend and public holidays, employer groups have raised concerns about the impact on the FWC in its role as independent wage-setter and on flexibility in the workplace.

The Fair Work Commission’s role

If legislated, this policy will effectively remove the powers given to the FWC to set penalty rates in modern awards. The FWC frequently uses this discretion and power to respond to the evolving needs and conditions of the economy and industry where required.

Employer groups have criticised the policy, noting that the FWC is required to review modern awards on a fair and impartial basis, taking into consideration the needs and practical concerns advocated by both employees and employers regarding the factors set out by section 134 of the Fair Work Act 2009 (Cth).

Therefore, any reduction to penalty rates by the FWC would need to be warranted by current economic and industry needs and any baseless request by employers to reduce penalty rates would be rejected, as the FWC has done previously in the past.

There is a concern, therefore, that this policy hamstrings the FWC ability to react to economic and industry needs.

Reduced flexibility for employees and employers – the end of annualised salary arrangements?

Employer groups also argue that this policy will restrict flexibility as implementing a hard base line entitlement for penalty rates would discourage employers from exploring other more convenient and generous payment arrangements under modern awards.

The recent ARA Application is a prominent example of this, where employees can opt-into a considerably higher annual salary in exchange for the offset of all penalty rates.

In the ARA Application, ARA submits that under this model, the average retail manager employee that opts into this arrangement would be paid $5,841.65 per year more than their counterparts who are paid strictly in accordance with the rates prescribed in the modern award.

In essence, this policy would stop the FWC from varying modern awards to provide for annualised salary arrangements which offset penalty rates but result in employees being considerably better off overall.

Annualised salary arrangements, even where they are more generous than modern award rates, are often attractive to employers due to their ability to streamline compliance with numerous, complicated rates set under the modern award.

It is not yet clear whether a re-elected Albanese Government would go so far as to wind back existing annualised salary arrangements under modern awards, or simply stop the FWC from making further variations which may have the effect of reducing penalty rates, even in circumstances where employees are still better off overall.

Conclusion

While the exact scope of the policy is yet unknown, if legislated, the Albanese Government’s pledge to protect penalty rates will have a direct impact on annualised salary arrangements for modern award covered employees. Employers could see less scope to offer annualised salary models that offset penalty rates under the modern award, even where such models result in higher overall pay.

Because a collective solution under modern awards is not available, employers and employees who want annualised salary arrangements will be more likely to seek out advice about how they can achieve an annualised salary through an individual contract or flexibility agreement, which can be done. By driving parties in this direction, and away from union collectivism, the policy might become an “own goal” for the unions.

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.

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.