Insights & News

October 17, 2024

With the legalisation of medicinal cannabis in Australia, employers are increasingly confronted with complex challenges, particularly in balancing their obligations under Work Health and Safety (WHS) laws and the rights of workers who use prescribed medicines. The evolving regulatory landscape, coupled with uncertainties around the effects of medicinal cannabis impairment, demands careful consideration from employers, especially in sectors where safety-critical roles are involved.

The legislative landscape

The legalisation of medicinal cannabis (at the federal level) began in Australia in February 2016, with subsequent amendments across states and territories allowing access to medicinal cannabis through regulated prescriptions.

While this legislative shift has provided new treatment options for individuals with conditions like chronic pain and anxiety, it also raises significant compliance challenges for employers, who have a duty to ensure, so far as reasonably practicable, a safe working environment for all workers, which includes managing the hazards and risks associated with a worker’s use of medicinal cannabis.

Employers are expected to conduct risk assessments to identify hazards, particularly those related to impairment. However, there remains a grey area as to how to accurately assess impairment caused by medicinal cannabis, making it difficult for employers to define and manage such risks in the workplace.

The impact of impairment

In this regard, the most significant challenge for employers arises from the fact that there is no reliable, objective test to determine the level of impairment caused by medicinal cannabis. This is further complicated by the way cannabis is metabolised by individuals, as the psychoactive component of cannabis, (tetrahydrocannabinol or ‘THC’), affects individuals in varying ways, and the impact of these effects can be difficult to quantify, even with advanced testing methods.

While the primary concern for employers is ensuring that employees are not impaired while performing safety-critical tasks (such as work that is defined as high risk), the absence of a reliable, objective test for impairment complicates this considerably.

Unlike alcohol, where blood alcohol concentration (BAC) can be easily measured to provide a relative indication of impairment, no such standard exists for medicinal cannabis. THC can remain detectable in the body for days or even weeks, long after its impairing effects have subsided. Further to this, the level of THC in medicinal cannabis varies greatly, ranging from a THC concentration of just 2% all the way up to 98%.

Current testing methods, such as urine or oral fluid tests, only detect the presence of the drug, not whether the individual is impaired at the time of testing. This creates a significant problem for employers, as a positive test result for THC does not necessarily mean that the worker is unfit for performing high risk work. While THC can remain detectable in the body for several days, impairment may last for only 8 to 10 hours. As such, an employee may test positive for THC long after the impairing effects have worn off, leading to potential conflicts when applying workplace drug and alcohol policies.

This issue is particularly pressing in safety-critical industries, such as construction, transport, and manufacturing, where even the slightest level of impairment can pose significant health and safety risks. Given that there is currently no universally accepted standard for impairment testing, employers must instead navigate a complex environment where a positive drug test result may not necessarily indicate that an employee is impaired or otherwise unfit for work.

Challenges in developing and applying workplace policies

Employers face challenges in developing clear and fair drug policies that cover and manage workers who use prescribed medicinal cannabis. Key issues that a policy may struggle to address include:

1. Defining Impairment: without a reliable test for impairment, employers often grapple with how to define ‘impairment’ in their policies. Some organisations try to rely on observable signs of impairment, such as difficulty concentrating or changes in behaviour, while others adopt stricter “zero-tolerance” policies that apply to any detectable level of THC in the system.
2. Disclosure Requirements: employers can require employees to disclose their use of prescribed medicinal cannabis, particularly if they are in safety-critical roles. However, consideration must be had to procedural fairness following the disclosure or use of legally prescribed medication. Disclosure accuracy may also be questioned where workers are hesitant in disclosing their use depending on the type of safety-critical or high risk work they are engaged in, when there is a likelihood that in order to perform their work they must return a negative test.
3. Balancing Safety and Fairness: while employers are legally required to maintain a safe workplace, overly harsh workplace policies may lead to unfair treatment of employees who are using prescribed medicinal cannabis to manage serious medical conditions. It is essential to balance the need for safety with the rights of workers who are prescribed cannabis.

A recent case study

A recent unfair dismissal decision[1] serves as an important illustration of the complexities employers face when managing employees prescribed medicinal cannabis. In this case, a stevedore who was prescribed medicinal cannabis failed to disclose his use of medicinal cannabis to his employer and later returned a non-negative result in a random drug test. He was dismissed for breaching the company’s drug and alcohol policy, which had been in place for over a decade.

The employee argued that he was capable of performing his duties safely and without risk, but his application was ultimately rejected by the Fair Work Commission, which found that the stevedore’s failure to declare his prescription and the significant amount of THC detected in his system (42 times the standard cut-off) were valid grounds for dismissal, especially given the safety-critical nature of his role.

The Commission noted that while the employee’s long service may warrant some sympathy, it did not excuse significant breaches of company policy, particularly when those breaches could compromise workplace safety. This case highlights the need for employers to implement clear policies regarding medicinal cannabis use and the importance of communication between employees and employers to ensure compliance with safety protocols.

Moving forward: recommendations for employers

Given the rapid increase in medicinal cannabis prescriptions in Australia—more than 1 million in 2024 so far—employers must be proactive in addressing the challenges associated with its use in the workplace.

Some key steps for employers include:

• Education and Training: employers should ensure that both management and employees are educated on the potential risks associated with medicinal cannabis use and the importance of reporting prescribed drug use, particularly in safety-sensitive workplace environments.
• Policy Development: employers should regularly review and update their drug and alcohol policies to reflect the changing legal and medical landscape of medicinal cannabis. Policies should be flexible enough to accommodate prescribed use while maintaining appropriate safety standards.
• Monitoring Emerging Technologies: as new methods for testing impairment become available, employers should stay informed and consider adopting these technologies to ensure fairer and more accurate assessments of employee fitness for work.

The legalisation of medicinal cannabis in Australia represents both an opportunity and a challenge for employers. While it offers many workers an alternative treatment for chronic conditions, it also presents significant risks, particularly in industries where safety is paramount.

Employers must strike a careful balance between upholding their WHS obligations and supporting workers who are prescribed medicinal cannabis. By developing clear policies, fostering open communication, and staying informed on advancements in impairment testing, employers can navigate this evolving landscape more effectively.

[1] Michael Gauci v DP World Brisbane Pty Limited [2024] FWC 2351

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

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

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

October 10, 2024

On Wednesday 18 September 2024, the Industrial Relations Legislation Amendment Bill 2024 (WA) was introduced as part of the West Australian Government’s wider reforms to the State’s employment laws.

The Bill continues the Government’s aim to modernise the State system and includes proposed changes which see minimum conditions brought into line with those of the Federal system.

At this stage, the key reforms contained within the Bill include:

• adopting certain minimum conditions equivalent to the National Employment Standards in the Fair Work Act 2009 (Cth), such as requests for flexible working arrangements and allowing employees to refuse to work public holidays in certain circumstances;
• raising the statutory minimum casual loading for employees from 20% to 25%, which is in line with the casual loading applied in the Federal system;
• expressly prohibiting sexual harassment in connection with work;
• redefining the terms “employee” and “employer”, as well as providing a new objective test to determining who is a casual employee, based on the real substance and practical reality of the working relationship rather than the strict contractual terms;
• increasing civil penalties, which will be more in line with the civil penalties seen in the Federal system. Maximum penalties would increase from $65,000 to $93,000 for a body corporate and $13,000 to $18,000 for an individual, along with higher maximum penalties for serious contraventions;
• abolishing the Public Service Arbitrator (PSA), the Public Service Appeal Board (PSAB) and the redundant Railways Classification Board. The jurisdiction and powers of the PSA and PSAB will be transferred to the general jurisdiction of the West Australian Industrial Relations Commission (Commission);
• establishing a new framework for right of entry permits, including the introduction of a “fit and proper person” test, that requires the Commission to consider a range of criteria, such as whether the person has even been convicted of an industrial law, or has any conviction involving the intentional use of violence or damage to property; and
• improving the regulation of registered industrial agents, including allowing the Regulations to dictate minimum qualifications and experience and allowing the Registrar to inquire into the conduct of an industrial agent.

The Bill is currently being considered by State Parliament and the proposed reforms will only come into effect if the Bill is passed and will apply only to those employees who fall within the State system, such employees of Government departments.

Kingston Reid will keep you updated as the Bill progresses and if it is ultimately passed. In the meantime, do reach out to one of our Perth Partners Duncan Fletcher, Beth Robinson, James Parkinson and Michael Stutley if you have any questions about the proposed new laws and their implications for your organisation.

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

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

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

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

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

Key legislative changes at a glance

The Respect@Work Bill introduces several critical changes to the Anti-Discrimination Act 1991 (Qld) (AD Act) and the manner in which discrimination matters are to be handled. At a glance, the legislative changes include:

• introduction of a broader positive duty, covering all forms of unlawful discrimination, harassment and objectionable conduct;
• introduction of new protected attributes of ‘expunged convictions’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’;
• modernising existing attributes, such as replacing ‘pregnancy’ to ‘pregnancy and potential pregnancy’;
• protection for a combination of two or more attributes;
• shifts the burden of proof to the respondent in anti-discrimination applications. This means the complainant only needs to establish the asserted discrimination, then the burden shifts to the respondent to prove the reason for the conduct was not because of the attribute;
• introduction of investigative powers to the Queensland Human Rights Commission (QHRC) into systematic issues involving discrimination on the basis of sex and new enforcement powers to ensure employers’ compliance with positive duties;
• redefining ‘direct discrimination’, where the attribute causing discrimination need only be one of the reasons (as opposed to being the substantial reason) for the unfavourable treatment (as opposed to less favourable);
• redefining ‘indirect discrimination’ to imposing a condition, requirement or practice that has, or is likely to have the effect of disadvantaging another person because of the attribute and such imposition is not reasonable. This can include creating an environment in which a person with an attribute is disadvantaged. The considerations of reasonableness have been expanded;
• an aggravating sentencing factor where an adult offender has used violence or caused physical harm to a person in their workplace. This includes sexual assaults;
• extended timeframe to file a complaint regarding harassment and discrimination to two years;
• new prohibitions of harassment based on sex and hostile work environments; and
• permitting representative complaints which will commence on 1 December 2024.

Positive Duty: extending beyond sexual harassment

The Respect@Work Bill adopts the national standard of a positive duty, however expands it to cover all forms of unlawful discrimination, harassment and objectionable conduct. This means employers must take reasonable and proportionate steps to eliminate all unlawful discrimination, including direct and indirect discrimination.

The Explanatory Memorandum provides guidance on how an employer can comply with its positive duties, such as:

• implementing policies that promote respectful workplace behaviour;
• ensuring easily accessible information is available;
• conducting surveys to assess awareness and experiences of discrimination or harassment in the workplace;
• addressing disrespectful or unlawful behaviour through informal or formal disciplinary actions; and
• ensuring leaders regularly communicate and reinforce respectful behaviour expectations.

New QHRC Investigative Powers

Like the Australian Human Rights Commission, the Respect@Work Bill grants the QHRC expanded investigative powers, allowing it to intervene when it suspects non-compliance with positive duty obligations, or where there is, or suspected to be, systematic issues relating to a work-related contravention on the basis of sex.

In circumstances where the QHRC finds non-compliance with positive duties, the QHRC has the powers to:

• enter into enforceable undertakings with the duty holder;
• issue a compliance notice; and
• seek tribunal-ordered compliance.

For investigations into systematic work-related contraventions on the basis of sex, the QHRC may prepare a report to be provided to the Minister to be tabled within six sitting days of receiving it.

Prevention Plan

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

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

Failure to comply can result in fines of up to $9,678 for an individual (or $48,390 for corporations).

We consider it possible that the obligation to prepare a prevention plan will be taken into account when considering whether an employer has met the positive duty under the Respect@Work Bill. Employers will need to consider preparing a prevention plan which not only deals with sexual harassment but all forms of unlawful discrimination.

Takeaways for 2025

With the commencement of the new legislative changes approaching, Queensland employers and any organisation that has Queensland operations must take immediate action to ensure compliance with the new laws. This will include:

1. Preparing a Prevention Plan, addressing the risks, control measures and reporting procedures in accordance with the WHS Regulation and regulations. Consider conducting workplace surveys and undertake risk assessment to tailor the plan to the business’ specific risks. This plan must be implemented by March 2025. 
2. Reviewing workplace environments to ensure that employees are not exposed to a hostile work environment on the basis of sex. 
3. Reviewing and updating workplace policies and trainings to ensure it aligns with the new AD Act, incorporating new protected attributes, distribution and training of the prevention plan and positive duties. Managers should actively promote and model respectful behaviour, setting a tone that aligns with the new legislative requirements. 
4. Preparing for QHRC oversight by training relevant employees to cooperate with any QHRC investigations and keep through documentation of preventive actions.

Given Queensland’s broader approach, it is possible that other states may follow suit, adopting similar measures to address discrimination and harassment more comprehensively. Employers across Australia will need to keep an eye on these developments, as the landscape of workplace compliance continues to evolve.

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

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

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

The past few months have seen significant developments in workplace law, with one of the most notable being the administration of the Construction and General Division of the CFMEU. Mark Irving KC has taken on the formidable task of cleaning up Australia’s most notorious union, amidst shocking 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. In response, the government introduced legislation to streamline the path to administration, ultimately resulting in:

1. approximately 280 officials being removed from their union positions;
2. an interim investigation by Geoffrey Watson SC revealing that the Victorian branch has been infiltrated by organised crime and embroiled in a “cycle of lawlessness” where violence has become a part of the culture; and
3. Mr Irving taking several key steps, including:
   • requesting Mr Watson to continue his investigation and submit a final report to Mr Irving by 1 December 2024;
   • establishing an anonymous whistleblower service; and
   • creating an integrity unit to investigate both existing and new allegations against the CFMEU.

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.

In addition to these headline events, several important legislative changes came into effect on 26 August 2024, including:

1. empowering the Commission to address disputes regarding the right to disconnect;
2. redefining casual employment and establishing a clear conversion pathway;
3. giving the Commission authority over ‘employee-like’ workers in the digital platform space, allowing it to set minimum standards and resolve disputes over unfair deactivation; and
4. expanding the Commission’s jurisdiction to tackle disputes concerning unfair contract terms for independent contractors.

Meanwhile, the Full Bench has initiated work on developing a standard working-from-home clause for the Clerks – Private Sector Award 2020, which will likely serve as a model term for other modern awards.

The Commission has also reviewed its procedures for paid agents, with President Hatcher endorsing all five recommendations from a working group, including a requirement for paid agents (and, oddly, lawyers) to disclose costs upfront before any conciliation or hearing.

Lastly, Professors Mark Bray and Alison Preston have been appointed to lead an independent statutory review of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022. The review, due in January 2025, will assess the effectiveness of the amendments, identify any unintended consequences, and determine whether further legislative change is required.

As we approach the final months of 2024, it’s shaping up to be a busy period in the workplace law landscape. With many other significant developments unfolding, we’ll continue to keep you updated on the key issues impacting workplaces across Australia.

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

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

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

Spruiked as unlocking a regime historically unused, heralded as creating efficiencies and promoting ease of transferability of skills, criticised as a punitive policy intervention that will make it substantially harder and more costly to do business, and now tested by the Full Bench of the Commission (Commission) in a heavily contested setting, multi-employer bargaining is off and racing.

After a reasonably slow (and mostly, non-adversarial) uptake, the recent decision involving four major black coal industry operators and the Association of Professional Engineers Scientists and Managers Australia (APESMA) has compelled the Commission to put Labor’s multi-employer bargaining provisions under the microscope in the first significant contested application of its kind since the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

Whilst the battle is not over (noting that three of the four employer respondents to APESMA’s application have lodged judicial review proceedings in the Federal Court on 20 September 2024), the Commission’s consideration and application of the single interest employer authorisation provisions set out in the Fair Work Act 2009 (Cth) (FW Act) gives some present guidance as to how these provisions will likely be applied in practice.

The battlelines are drawn…

The battlelines identified in the Commission’s 148 page decision in APESMA v Great Southern Energy Pty Ltd t/as Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd and Ulan Coal Mines Ltd[1] can best be summarised as a contest as to whether:

• a majority of the employees, who were employed by each of the respondent employers at a time determined by the Commission and who would be covered by the agreement, wanted to bargain for the agreement;
• each of the respondent employers had clearly identifiable common interests;
• it was not contrary to the public interest to make the authorisation;
• the operations and business activities of each of the respondent employers were reasonably comparable with those of the other employers that would be covered by the agreement;
• one of the respondent employers was excluded from the scope of the APESMA application as they had an enterprise agreement that has not yet passed its nominal expiry date.

In short, the Commission was not satisfied that any of these factors warranted a finding that the authorisation sought by APESMA should be dismissed.

Of particular note is the Commission’s consideration of the identifiable common interests and comparable business activities criteria set out in the FW Act.

What are “common interests” for the purposes of multi-employer bargaining?

Without a definition under the FW Act, the Commission 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 Commission also identified that the “common interests” must be clearly identifiable, or plainly discernible or recognisable, however they need not be self-evident.

Despite the extensive evidence led by the respondent’s employers which articulated points of distinction by reference to location, mine life, mining method, equipment, transport considerations, geology, customers, production and conditions of employment, the Commission held that the respondent employers had not drawn the necessary connection between these distinctions and the facilitation of bargaining which would arise under the authorisation. The Commission went on to say that the claimed differences between them, such as conditions of employment, upon closer examination, revealed them to be attributes, rather than interests, and gave rise to interests that were common.

The outlier…

The outlier in this regard was the fourth employer respondent. That employer, by virtue of its sole commercial purpose of covering its costs of providing a reliable supply of thermal coal to one of its related bodies corporate in the generation of electricity, was found to be comprehensibly different to the commercial purpose of the other three employers who undertook their mining activities to make a profit from the sale of coal.

This, in turn, revealed different retention, attraction, price and bargaining priorities which distinguished its interests from the interests of the employers in a bargaining setting.

The reasonable comparability test

In respect of reasonable comparability, the Commission held that test is concerned with the respondent employer entities, and the enquiry is targeted at the ‘operations’ and ‘business activities’ of those specific entities. The Commission did, however, accept that the operational and business activities of the respondent employers may be influenced by their relationship within the broader corporate group structure and this context may have some relevance in understanding what the respondent employers do and why they do it.

Further, the Commission held that greater weight should be given to differences in operations and business activities of the respondent employers to the extent that these relate to the proposed coverage of the authorisation. In other words, greater weight should be attached to the operations and business activities of the respondent employers to the extent that they relate to the work performed by the employees proposed to be covered by the agreement and are connected to bargaining.

Distilling these points down, the interesting feature of the case is that the Commission took steps to anchor the considerations in new provisions to bargaining for the enterprise agreement which would occur under the proposed authorisation and the relevant employees who would be covered by the terms of any agreement which would be a product of that bargaining. As such, broader distinctions were able to be sidelined by the Commission once a focussing on bargaining with a particular group of employees occurred.

It was through this lens that the Commission was able to find that the authorisation by APESMA, in respect of 3 of the 4 employer respondents, should be granted.

Key takeaways for employers

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 militate 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. However, Kingston Reid will keep you across the latest in this space as it unfolds.

Stay tuned to see whether the Federal Court walks back what some commentators have regarded as a return to centralised wage fixing not seen since the 1980s or whether enterprise level bargaining, focussed on single enterprise agreements as between employers and their employees, will remain as a core, primary objective in Australia’s industrial relation system.

[1] [2024] FWCFB 253

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

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

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

On 13 September 2024, the Full Bench of the Fair Work Commission (FWC) ruled on the jurisdictional scope of the FWC to deal with disputes under section 240 of the Fair Work Act 2009 (Cth) (FW Act) in Qube Ports Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[1].

The decision sheds light on what the FWC will deem to be a dispute “about the agreement” for the purposes of section 240, and when it can be said that those parties are “unable to resolve the dispute”.

Defining Disputes: what does section 240 cover?

Section 240 of the FW Act allows bargaining representatives to apply to the FWC to deal with disputes about proposed enterprise agreements if they are unable to resolve the dispute themselves. Relevantly, section 240 gives the FWC jurisdiction to deal with a dispute “about the agreement”.

This naturally raises the question: what constitutes a dispute “about the agreement”? Until now, there has been a lack of clear authority which has considered this question.

What did the Full Bench have to say?

Qube Ports was engaged in bargaining for 19 proposed enterprise agreements, covering its stevedoring employees at various port facilities across Australia. Qube Ports insisted on a port-by-port bargaining method, which the union (MUA) argued was inefficient and costly. The MUA sought a unified approach to discuss common terms before addressing port-specific issues.

The MUA made an application to the FWC under section 240 of the FW Act, seeking assistance in resolving the dispute. At first instance, Deputy President Slevin held that the FWC had jurisdiction to hear the matter. Qube Ports appealed to the Full Bench of the FWC.

On appeal, Qube Ports contended that the FWC lacked the jurisdiction to deal with the dispute, because it was about the bargaining process, rather than the content of the proposed agreements. Additionally, Qube Ports asserted that the parties had not demonstrated that they were “unable to resolve the dispute”, a prerequisite to enliven the FWC’s jurisdiction under section 240.

The central issue before the FWC was whether the dispute was a dispute “about the agreement”. Qube Ports argued for a narrow interpretation that only disputes concerning the substantive content of an agreement, not the bargaining process, should be considered.

The FWC rejected the narrow interpretation advanced by Qube Ports, affirming that a dispute about the manner in which bargaining is conducted is indeed a dispute “about the agreement”. The FWC emphasised that the purpose of section 240 is to facilitate good faith bargaining and the making of enterprise agreements, which includes resolving procedural disputes that could impede the bargaining progress.

The FWC further observed that Qube Ports’ refusal to negotiate common terms collectively was a dispute about the agreement’s content, not just the bargaining process and that Qube Port’s refusal to negotiate was in breach of the good faith bargaining requirements under the FW Act.

On Qube Ports’ argument that the parties had not made sufficient efforts to resolve the dispute independently, the FWC found evidence to the contrary, noting that the parties had engaged in multiple bargaining meetings and correspondence without reaching a resolution. The FWC concluded that the requirement under section 240(1) was met, as the parties were unable to resolve the dispute at the time assistance was sought.

What’s the difference Between process and content?

The FWC distinguished between disputes about the bargaining process and the content of enterprise agreements. While Qube Ports argued the dispute was purely procedural, the FWC determined it was inherently linked to the agreement’s content, as the method of negotiation directly impacted the terms being discussed.

The evidence showed that Qube Ports’ insistence on port-by-port negotiations was driven by concerns about the applicability of the MUA’s claims to specific ports. This indicated that the dispute was not merely procedural but also related to the substantive content of the agreements.

Key takeaways for employers

Broad Interpretation of Section 240

The decision confirms that section 240 encompasses disputes about both the content and the process of 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. 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.

Encouragement of Efficient Bargaining

By recognising procedural disputes as legitimate grounds for the FWC’s intervention, the decision encourages parties to make use of the section 240 process in complex negotiations involving multiple agreements and parties.

Employers will need to develop more comprehensive strategies to address both procedural and substantive differences in bargaining and consider where a section 240 application could be used as a strategic tool in negotiations.

Clarification of “Unable to Resolve”

The decision clarifies that demonstrating an “inability to resolve a dispute” does not require exhaustive efforts over an extended period. Instead, it is sufficient to show that the parties have made reasonable attempts to resolve the dispute without success.

[1] [2024] FWCFB 370

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

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

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

There is a popular misconception within organisations and across industries that obtaining a work health and safety accreditation (such as ISO 45001) equates to compliance with health and safety legislation.

While an argument may be made that there is generally a correlation between organisations having their health and safety systems accredited and experiencing fewer workplace incidents, there is often an over reliance on, and false sense of security provided by ‘set and forget’ paper-based safety systems that accreditation requires.

What is accreditation?

In Australia, organisations can hold various health and safety accreditations, including:

1. ISO 45001: which is an international standard for occupational health and safety management systems;
2. AS/NZS 4801: An Australian / New Zealand standard for work health and safety management systems;
3. SafeWork Accreditation: Specific to certain industries such as construction;
4. Federal Safety Commissioner Accreditation: for companies working on Australian Government building and construction projects; and
5. WorkSafe Certification: state-based certifications such as through WorkSafe Victoria.

Generally, obtaining and maintaining these accreditations requires:

1. Implementation of Safety Management Systems: Structured approaches to managing safety risks;
2. Regular Audits and Inspections: Ensuring compliance and identifying potential hazards;
3. Employee Training and Engagement: Increasing awareness and promoting a safety culture;
4. Continuous Improvement: Encouraging ongoing evaluation and enhancement of safety practices.

The way these accreditations are generally obtained and maintained is through paper and desk top audits of the documentation that is rarely a true indication of the way hazards and risks are assessed and controlled.

The requirements of these accreditations treat all risks as equal and do not distinguish between those risks that are critical and those that are non-critical.

Why the misconception?

While the effort required to obtain and maintain a health and safety accreditation demonstrates a commitment to better health and safety outcomes, ultimately it is a demonstration of a paper-based system that often do not reflect what is practically happening on the ‘coal face’ (i.e. work as imagined versus work as done).

The requirements of accreditation are based off the words on the pages within the health and safety management system rather than the ways in which risks, and in particular critical risks, are actually and practically assessed, managed and controlled.

Work health and safety legislation is risk based and not outcome based. Put simply, an incident does not automatically equal non-compliance, but sans an incident having incomplete documentation that forms part of a health and safety management system will certainly demonstrate non-compliance.

An example of this, is the concept of Safe Work Method Statements (SWMS) for high-risk construction work. In theory, and from a regulatory compliance perspective, these documents are a tool for workers to assess and manage risks associated with particular work activities in the context of the specific workplace.

In practice, generic SWMS are provided as part of tender processes that get ‘signed onto’ by workers and never thought about again unless or until there is an incident or it is time for an audit to maintain accreditation. Not having a SWMS will generally be a regulatory breach (provided the workers have considered the risks and put controls in place) but having a generic SWMS that is not a true indication of the way the work was being done is generally a breach of the primary duty of care under the Model Work Health and Safety Act and in certain circumstances could lead to breaches and/or prosecutions.

A workplace would ultimately be safer where risks are proactively managed and controlled as part of the way work is done without the burden of an overly bureaucratic paper-based system of documents to be signed or forms to be filled out that relies on work being carried out in the way those sitting in the glass towers imagine.

Part of the problem is that when a regulator calls, it is almost always case that the first thing they do is demand to see the paper safety system rather than taking the time and effort to understand how hazards and risks are practically managed and controlled.

What can organisations do?

Organisations need to accept that the regulatory landscape has changed in recent years and accreditation is no longer the health and safety silver bullet it once may have been.

Hand in hand with accreditation, organisations can:

1. Adopt a less legalistic approach in the system documents and to adopt a more outcome / people focused approach that concentrates particularly on critical risks. Adopting a less legalistic, less is more approach to the documentation does not reduce overall compliance;
2. Make the safety management system less complex while focusing and relying less on documentation, and focusing on the systems and processes that underpin the content of the documents (i.e. work as imagined versus work as done);
3. Develop and implement the system in a way that does add unnecessary bureaucracy that ultimately leads to health and safety adding to the workloads of individuals; and
4. Clarify the connection between physical hazards, and psychological hazards, and their associated risks (e.g. acknowledging that a risk arising from a physical hazard may also create psychological risks that also need to be managed).

Key Takeaways

We are certainly not advocating organisations doing away with their accreditation/s or that accreditations are a wasted endeavour. Instead, organisations should not be lulled into a false sense of security that holding accreditation means their work or workplace are safe or compliant with risk-based health and safety legislation.

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

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

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

September 27, 2024

A new legal hunting ground?

The Federal Government has passed the Australian Human Rights Commission Amendment (Costs Protections) Bill 2023 which introduces a radical new costs regime into Australia’s federal anti-discrimination laws.

Kingston Reid Partners Duncan Fletcher and Beth Robinson outline the nature of these changes and what we might expect to occur once they take effect.

The New Costs Provisions

One of the issues identified in the landmark 2020 Respect@Work report into sexual harassment in Australia was a perception that individuals who experienced discrimination and sexual harassment were deterred from commencing legal proceedings under anti-discrimination law due to the risk of being ordered to pay the other parties’ legal costs if a claim was unsuccessful. To address this, a recommendation was made to introduce costs neutrality provisions into anti-discrimination laws, like those provided for in the Fair Work Act 2009 (Cth) (FW Act), where each party to a proceeding is responsible for their own legal costs[1].

The government has now acted on this recommendation, introducing new costs protections for applicants in court proceedings that relate to an application made under anti-discrimination laws.

However, the changes go beyond the costs neutrality position recommended by the Australian Human Rights Commission (AHRC)[2] and the Respect@Work report, introducing instead a ‘modified equal access model’.

The new provisions provide:

• If the applicant succeeds on one or more grounds, the court must order each respondent to pay the applicant’s costs on an indemnity or other basis. The only exception is if the applicant’s unreasonable act caused costs to be incurred, in which case only those costs are excluded.
• If the respondent succeeds, the applicant must not be ordered to pay costs, unless the applicant acted vexatiously or unreasonably, and then the costs are limited to costs flowing from the unreasonable act.

The outcome of these changes is a respondent now effectively underwrites the legal costs of a claim brought against them under anti-discrimination law, and applicants are largely insulated from costs exposure, other than in very limited circumstances.

This significantly shifts the risk in proceedings under anti-discrimination laws to a respondent and creates strategic and legal advantages for individuals commencing claims in that forum.

Notably, the regime is broadly drafted and captures court proceedings “that relate to” a discrimination application. This means that the benefit of costs protection for applicants will not be limited only to a discrimination aspect of a claim but will likely extend to all aspects of claims where any anti-discrimination law is used as a vehicle to commence the application (which may include, for example, breach of contract). This is already a common practice under the FW Act.

In practice, we expect that similar to the Fair Work Commission (FWC), claims will be commenced with the AHRC to enliven this jurisdiction and protection. If a claim is not resolved in the conference process within the AHRC, and the complaint is terminated, an applicant is then able to proceed with a claim in the federal court jurisdiction. The costs protections will then apply to the entirety of that claim, irrespective of what other allegations or claims are included in the application.

The likely consequences of this change are:

An increase in the number of claims commenced under anti-discrimination laws against employers and individuals. Discrimination claims being used more often as a vehicle for broader related claims (including in substitution for workers’ compensation claims). General protections claims becoming the adjunct, rather than primary claim in the employment jurisdiction creating confusion about which costs regime will apply. Higher applicant settlement expectations. Increase in applicant appetite for litigation (including representative/class actions). Increased use of accessorial liability provisions to rope in individual respondents. Higher legal fees being incurred earlier in proceedings. Increases to insurance premiums for employment liability policies.

Reduced likelihood of achieving early, commercial and realistic settlements. Less issues being resolved at a workplace level before litigation is commenced. Decrease in use of the new Fair Work Commission (FWC) jurisdiction to resolve sexual harassment matters in a cost neutral and conciliatory environment.

A new legal hunting ground

The FW Act costs neutrality regime has several demonstrable positive impacts, reflected in the effectiveness of the Fair Work Commission in dealing with disputes. The provisions:

1. Effectively incentivise settlement at an early stage: Over 90% of claims in the FWC settle at conciliation[3], with costs implications used as a lever to promote compromise by both parties. This is supported by a system within the Fair Work jurisdiction which schedules facilitated conferences and conciliation within weeks of a claim being commenced.
2. Promote efficiency and objective assessment of claim prospects: Parties are generally motivated to run claims efficiently, as they are more aware that the costs they are incurring are usually not recoverable. This promotes objective assessment of claim prospects by both parties on an ongoing basis.
3. Encourage commercial settlements: Settlement proposals are generally reflective of reasonable loss and not blown out with claims for unrecoverable or excessive legal costs, again providing an incentive for compromise and resolution. This results in commercial settlements being achieved in most matters.

By contrast, claims brought through the AHRC under federal anti-discrimination laws are currently far less common. This reflects that:

• discrimination laws are historically highly technical resulting in expensive and prolonged proceedings where cost neutrality protections did not exist;
• the process within the AHRC is not currently as efficient as that offered by the FWC; and
• recourse if a matter does not resolve is to the federal court system with its attendant complexity and cost.

To the extent that discrimination claims are currently pursued, they usually form part of a claim commenced under the FW Act’s general protections provisions, in order to obtain the benefits of the FWC processes as well as the costs neutrality protections, a reverse onus of proof and civil remedy provisions.

The changes introduced to change the costs arrangements under the Australian Human Rights Commission Act 1986 (Cth) mean that costs burdens of a discrimination claim now sit heavily with respondents.

This beneficial change for applicants, combined with the wide ranging and foundational changes particularly to the Sex Discrimination Act 1984 (Cth) (SD Act) over the last 18 months, (including new provisions intended to guard against a “hostile work environment” and the positive duty to prevent sexual harassment) makes the AHRC a much more attractive forum for an applicant commencing a claim. It also means that discrimination claims are now attractive as a vehicle for commencing more expansive applications of which discrimination is only a part, in order to obtain the costs benefits. This is an approach that is already common with general protections provisions under the FW Act.

As the default costs liability extends to each respondent, it would also be reasonable to anticipate an increase in the use of accessorial liability provisions to ensure senior managers and officers are named as parties to claims, particularly where they are able to influence settlement, or activate protective insurance policies, noting of course that an insurer will assess all risks, including costs exposure in determining potential settlement parameters.

“Representative” or class action claims also benefit from this default costs protection, again incentivising the funding and making of large-scale claims. While individual applicants are protected, respondents must assume that they will carry a greater proportion of the legal costs incurred. This is recognised in the new provisions expressly referencing representative actions and providing express protections against costs being ordered against individual applicants in these claims. This will have the consequent effect of increasing the attractiveness of this type of claim for litigation funders whose risk profile has now been reduced.

Exceptions to the rule?

For employers or individuals responding to a discrimination claim, having a clear legal strategy, from the beginning of the proceedings, will now become more critical than ever to not just understand the potential legal risk on the merits of a claim, but to establish a basis to meet an exception to the costs regime and mitigate the potential for costs exposure.

The limited exceptions to the default costs position in terms of the respondent’s exposure are where:

• the respondent wholly succeeds, meaning all claims against them are dismissed; and/or
• the applicant has engaged in an unreasonable act or omission that has caused the applicant to incur costs.

It is this second limb with should be closely considered remembering that this is the criteria for a move from the default outcome that the respondent be ordered to pay the applicant’s costs.

This assessment considers not whether the applicant’s unreasonable act caused the respondent to incur costs, but whether the applicant’s own unreasonable act or omission caused the applicant to incur costs. If this can be established, the respondent will not be ordered to pay those unreasonably incurred costs, this is a limited protection.

An ‘unreasonable act or omission’ for the purposes of a costs provision will always be contextual but well accepted “unreasonable acts” include a failure to accept a reasonable offer of compromise, especially where it provides for a better outcome than that ultimately achieved, or a failure to participate in a process such as a conciliation.

However, the Explanatory Memorandum[4] to the Bill seeks again to remove this incentive for compromise and genuine assessment of prospects and outcomes. The Explanatory Memorandum instead adopts a submission of the ACTU[5], and states that for the purposes of this provision an ‘applicant’s unreasonable act or omission” which caused the applicant to incur costs is ‘intended to be a high threshold and reserved for rare cases. For example, a mere refusal of a settlement offer, (or) refusal to participate in a conciliation… are not intended to amount to an unreasonable act or omission…” (our emphasis).

This is inherently problematic. If this explanation informs the application of these new provisions, the outcome is effectively that a respondent remains liable for an applicant’s costs, even in circumstances where those costs could or should have been reasonably avoided. It removes the imperative for genuine consideration of reasonable settlements, or participation in alternative resolution mechanisms.

Of course, how the courts choose to exercise its discretion in each matter will be determined by the facts in each case and context remains critical.

When is an applicant liable for costs?

The basis for an applicant being ordered to pay the respondent’s costs are even narrower. An applicant may only be ordered to pay costs :

• If the proceeding was commenced vexatiously or without reasonable cause.
• When the applicant’s unreasonable act or omission caused the other party to incur costs.
• When the respondent is wholly successful but does not have a significant power or financial advantage over the applicant. This is intended to protect true small businesses and individual respondents where there is no power differential with an applicant.

Proving an application to be vexatious is a very high bar and one that is not commonly met. For a matter to be commenced without reasonable cause, this requires there to be evidence that, on the facts objectively known at the commencement of proceedings, there was no reasonable cause of action or prospect of success. Again, this is a high bar.

Interestingly, the ‘unreasonable act’ provision in this subsection adopts similar wording to section 570 of the FW Act, as it considers where the applicant has caused the other party to incur costs through an unreasonable act or omission. This provision is not addressed in the explanatory memorandum to the Bill, but it must be assumed that ‘unreasonable act or omission’ will be given the same meaning throughout this new provision.

This leads to an outcome where, if it can be shown that an applicant engaged in an unreasonable act or omission resulting in costs for either party, that this becomes a basis firstly for the respondent to obtain protection against costs arising from that act or omission, and secondly, becomes a basis for the ordering of costs against the applicant in relation to that same act.  This costs provisions will accordingly become a key issue within legal proceedings and strategy.

Impact for Respondents

When assessing a legal claim and how to approach it, consideration is usually given to the merits of the claim and potential outcomes, the likely legal costs and the time and disruption required to participate in legal proceedings.

As outlined above, these changes impact this assessment.

To best protect itself against potential costs exposure, a respondent  to discrimination proceedings should, as early as possible, and throughout proceedings:

• Consider the merits of each aspect of a claim, including any which should not proceed due to legal or factual deficiencies, and making this clear in writing in a response and any settlement communications with the applicant. By necessity, this involves investigating the claims made, an often intensive and costly process.
• Determine what a reasonable offer of compromise would be, based on the circumstances of the case and its merits. The offer should be made in writing and make clear that failing to accept the offer of compromise is unreasonable. Relevantly, being prepared to factor in these new costs risks as part of whether an offer is reasonable will be necessary and may require higher offers to be made to meet this threshold. Our expectation is settlement proposals will now routinely include claims for applicant legal fees.
• Act on unreasonable acts or omissions during proceedings by raising them in writing. This may include deficiencies in compliance with technical legal rules around pleadings and compliance, or the introduction of irrelevant materials, such as large volumes of evidence that are not relevant to the matter.

The necessity for these additional steps means that time and costs, which may previously have been deferred in the interests of obtaining an early commercial settlement are now incurred earlier. Respondents are likely to need to engage with their lawyers to properly understand and respond to discrimination-based claims and the increased settlement expectations that they will bring.

Where to now?

Discrimination claims are likely to significantly increase over the next few years as these changes come into effect. This is an intended outcome of this change, and other recent legislative changes.

This will be driven by the cumulative effect of the changes to the SD Act which have lowered the threshold for providing sexual harassment and discrimination and now the beneficial costs protections for claims brought under anti-discrimination laws which make this an attractive jurisdiction to commence claims.

For employers, these changes represent a significant shift and will require reassessment of where discrimination issues are classified in the organisational risk matrix. The focus as always should be ensuring that the workplace is as compliant as possible, including having proactive and practical strategies to prevent discrimination, or to identify and de-escalate potential claims early.

If a complaint is made or a claim is received, organisational response becomes much more important right from the inception of the claim. Given the higher costs stakes, respondents can limit their exposure by seeking early legal advice to avoid prejudicing their position. A strategic response, which responds quickly to mitigate against potential costs implications, is critical in this new hunting ground for applicant litigation.

[1] Australian Human Rights Commission (AHRC), Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020) Recommendation 24 at p 45

[2] AHRC Submission to the Senate Legal and Constitutional Affairs Legislation Committee, 19 December 2023

[3] Taken from statistics in the FWC Quarterly Reports which show the number of applications made and the number that settle at private conference, here: https://www.fwc.gov.au/about-us/reporting-and-publications/quarterly-reports

[4] Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 Explanatory Memorandum  

[5] Cost Model for Commonwealth Anti-Discrimination Laws. ACTU submission to the Attorney-General’s Department on the Review into an appropriate cost model for Commonwealth anti-discrimination 2022 at p 20

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

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

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

September 5, 2024

A recent decision by the Australian Privacy Commissioner has highlighted the need for employers to tread carefully whenever they receive personal information, particularly sensitive health information, about their employees.

Current state of the law on employee records

The Privacy Act 1988 (Cth) (Act) is the main federal source of privacy protections in Australia.  The Act provides for several Australian Privacy Principles (or APPs), which govern the standards, rights and obligations around the collection, use and disclosure of personal information and sensitive information.

Private sector employers are exempt from compliance with many of the APPs where an act or practice is directly related to:

• a current or former employment relationship; and
• an “employee record” (defined in the Act) held by the employer and relating to an individual.[1]

Importantly, the exemption only operates once an “employee record” is held by an employer.  This means that organisations with an annual turnover of $3 million or more[2] are not exempt from the need to comply with APPs when initially collecting an employee record, such as recording personal details on an onboarding form or registering a fingerprint to implement digital attendance scanners at a workplace.[3]

Relevantly, these APP obligations require that such organisations only collect personal information that is reasonably necessary for, or directly related to, one or more of its functions or activities and, if that personal information is also sensitive information (such as health information), then the organisation must also obtain the individual’s consent.

Despite the drastic increase in the collection, storage, use and disclosure of employee records since the employee records exemption was introduced in 2000,[4] there is still a lack of awareness about the exception[5] and uncertainty about its scope, given the infrequency of published decisions considering it.

ALI and ALJ

This privacy complaint[6] (determined by the Commissioner in June 2024) arose after an employee suffered a medical episode whilst they were at work in their employer’s car park. They were given CPR by colleagues until an ambulance arrived and transported the employee to a hospital.  Following the episode, a staff member contacted the employee’s husband and asked that he contact their manager to provide an update on the employee’s condition.

The husband sent a text message to the manager providing an update on the employee’s condition and that manager conveyed this message to the managing director of the employer.  The managing director then proceeded to send an email to over 100 head office employees, disclosing that the employee had experienced a medical episode, providing details about her health status and including the full names of her and her husband in the email.

The employee ultimately resigned from the organisation and lodged a complaint to the Commissioner in respect of the disclosure.

Under APP 6, an organisation must not disclose or use personal information for a purpose other than what it was initially collected for.  In responding to the complaint, the employer argued that it was exempt from the APPs, due to the employee records exception.

The Commissioner rejected the employer’s argument.  It determined that the employer had interfered with their employee’s privacy, had breached the APP 6.1 and ordered it to pay to the employee $3,000  for non-economic loss and a small amount for reasonable expenses.

In reaching this conclusion, the Commissioner considered that the primary purpose of the collection of was to ensure the welfare of the employee and to meet work, health and safety obligations concerning incident reports.  However, the information was then used instead to update staff about the employee’s condition, which was not the primary purpose for which it was collected.

The Commissioner also:

• did not consider that the employee had implicitly consented for the secondary use of their information, despite her husband willingly sharing that information;
• rejected the argument that a reasonable person would expect the employer to disseminate her health information in the manner that it did; and
• did not agree that the Work, Health and Safety Act 2011 (NSW) authorised the employer to act in the way it did.

The future of the employee records exemption

In late 2023, the Federal Government formally responded to a 2022 review from the Attorney General’s Department into the Act, which had suggested amendments to the employee records exception, with the aim of:

• improving employer transparency about how they use the personal information of their employees and former employees;
• ensuring employers can still “collect, use and disclose” employee information but only when it is “reasonably necessary to administer the employment relationship“;
• requiring employers to consider whether they need employee consent for the particular collection, use or disclosure of employee information;
• protecting employee information from “misuse, loss or unauthorised access”, and ensure the information is destroyed when employers no longer need it – in a way that is consistent with the employer’s other legal obligations; and
• guaranteeing that employees and the privacy regulator are notified of any data breaches involving employee personal information that are likely to result in serious harm.

The Government agreed, in principle, that further consultation should be undertaken with employee and employer representatives on how enhanced privacy protections should be implemented in legislation.  However, as at the date of this article, no public consultation process has been commenced.

Takeaways

The recent decision of ALI and ALJ is an important reminder about the need for employers to exercise caution when collecting, handling, using and disclosing employee personal information, despite the existence of the employee records exemption.

It also underscores the regulatory burden on organisations — driven largely by uncertainty about what conduct is and is not regulated by the Act — who are now in possession of increasing of volumes of personal information from their workplace.

Until further clarity is provided by the Government in the form of legislative change fit for the modern workplace, employers will continue to be forced to speculate about what kinds of information need to be handled carefully and how.

[1] Section 7B(3) of the Act.

[2] Sections 6C(1) and 6D of the Act.

[3] See Lee v Superior Wood Pty Ltd [2019] FWCFB 2946.

[4] Privacy Amendment (Private Sector) Bill 2000 (Cth).

[5] In a 2023 survey conducted by the Office of the Australian Information Commissioner, 81% of respondents were unaware that businesses collecting work-related information about employees were exempt from the privacy obligations under the Act.

[6] ALI and ALJ (Privacy) [2024] AICmr 131 (20 June 2024)

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

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

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