Insights & News

July 1, 2025

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

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

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

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

Changes to the WHS Act

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

The key changes to the WHS Act are summarised below.

Changing the status of approved Codes of Practice

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

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

Expanding the rights of WHS entry permit holders

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

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

A new disputes avenue for ‘WHS Matters’

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

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

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

Expanding the power of unions to commence proceedings

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

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

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

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

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

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

Limitation period for commencing proceedings

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

Information sharing and reporting

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

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

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

Key takeaways

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Changes to the IR Act

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

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

New “objects” for the IR Act

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

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

Industrial disputes – arbitration orders, recommendations and directions

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

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

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

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

Expanded victimisation protections

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

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

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

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

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

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

Prohibition against sexual harassment in connection with work

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

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

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

Stop bullying and sexual harassment orders 

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

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

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

Damages of up to $100,000 are available.

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

Provision of information during bargaining

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

Civil penalty jurisdiction and other changes

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

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

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

Key takeaways

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

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

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

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

Conclusion

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

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

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

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

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

June 24, 2025

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

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

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

June 18, 2025

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

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

What happened?

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

The complaints

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

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

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

St Basil’s response

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

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

The Court’s findings

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

Legal Findings

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

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

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

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

Damages and civil penalties

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

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

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

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

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

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

Key takeaways

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

Treat complaints seriously and act early

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

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

Investigate when required

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

Appoint independent decision makers to ensure robust decision making

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

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

Process matters

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

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

Thousands of workers across community health, disability care, and early education could soon benefit from substantial pay increases following a decision from the Fair Work Commission’s (FWC) Expert Panel in the gender-based undervaluation – priority awards review.

This decision, and others that may follow, could reshape how work is valued and paid across Australia.

The Expert Panel’s decision follows the 2022 Same Job, Same Pay reforms introduced by the Albanese Government that make gender equality a central consideration in setting modern award pay. These changes require the FWC to assess whether award minimum wages, particularly those in female-dominated sectors, reflect equal value for work regardless of gender.

The Expert Panel’s decision proposes substantial changes to how work is classified and paid under the following awards:

• Pharmacy Industry Award 2020 (Pharmacy Award);
• Health Professionals and Support Services Award 2020;
• Social, Community, Home Care and Disability Services Industry Award 2010;
• Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020; and
• Children’s Services Award 2010.

These awards cover a wide range of roles, including pharmacists, health professionals, social and community services employees, pathology collectors, home (disability) care employees, dental assistants and children’s services employees.

The Expert Panel found that many of these roles have been undervalued due to outdated assumptions about the nature of the work and the skills required, and that the existing classification structures often failed to reflect:

• the full range of required qualifications and experience;
• the complexity and responsibilities of the roles; and
• “invisible” skills, such as highly developed communication skills, empathy, organisation and patience.

14.1% staggered increase for pharmacists

To address this, the Expert Panel has determined that a total increase of 14.1% in minimum wage rates for pharmacists covered by the Pharmacy Award will be implemented in three equal phases from 30 June 2025, 30 June 2026 and 30 June 2027.

Employers covered by the Pharmacy Award should take proactive steps to prepare for the upcoming increases. This includes reviewing and updating payroll systems to ensure the new rates are correctly applied, incorporating the wage increases into their budget forecasts and revisiting employment contracts and remuneration frameworks to confirm they remain compliant with the award.

Other impacted modern awards

For the four other awards, the Expert Panel has outlined its provisional views on appropriate variations to remedy gender-based undervaluations, which include:

• reclassifying roles to ensure the classifications (and corresponding minimum rate of pay) more accurately capture the nature and value of the role and work performed;
• simplifying job classification structures to better reflect the complexity and responsibility of the work; and
• increasing the minimum rates of pay for certain roles.

The Expert Panel has invited further submissions on its provisional views before finalising any changes for the four remaining awards.

Impact for employers

If your organisation employs staff under any of the affected awards, you should:

• monitor the FWC process for final determinations;
• review your internal employment structures and budgets; and
• plan for wage increases and possible award reclassifications over the coming 12–24 months.

This is just the beginning. Sectors such as aged care, early childhood education, hospitality, cleaning, allied health, retail, cabin crew, and admin support may be reviewed as future waves of gender-based undervaluation cases are identified by unions. Employers in these industries should:

• stay informed about FWC developments in this space;
• conduct internal reviews to identify potentially undervalued roles; and
• seek legal advice in preparation for potential gender-based undervaluation reviews.

The FWC’s preliminary decision marks a significant shift in how award-based employment conditions are evaluated, placing gender equity and work value front and centre. While the initial focus is on five key awards, the broader implications are likely to influence pay structures across a wide range of industries.

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.

As we approach 1 July 2025, key reforms under the Australian Government’s migration strategy are about to take effect, and more are expected to be introduced soon.

CSIT, SSIT and TSMIT increases from 1 July 2025

The income thresholds for visa nominees will increase from 1 July 2025 as follows:

• the Core Skills Income Threshold (CSIT) will increase from $73,150 to $76,515;
• the Specialist Skills Income Threshold (SSIT) will increase from $135,000 to $141,210; and
• the Temporary Skilled Migration Income Threshold (TSMIT) will increase from $73,150 to $76,515.

These increases continue the Government’s efforts to lift wage protections for visa holders and ensure sponsored roles align with genuine skills needs.

What is the CSIT, SSIT and TSMIT and why do they matter?

• employers nominating employees within the Core Skills stream of the Skills in Demand (SID) visa will need to pay a visa nominee at least the higher of the CSIT and an Annual Market Salary Rate (AMSR) (an average salary expected to be paid to an equivalent role having regard to salary guides and industry standards);
• employers nominating employees within the Specialist Skills stream of the SID visa will need to pay a visa nominee at least the higher of the SSIT and an AMSR; and
• employers nominating employees for a Skilled Employer Sponsored Regional visa or within the Regional Sponsored Migration Scheme will need to pay a visa nominee at least the higher of the TSMIT or an AMSR.

These increases are significant and may make some occupations in the Core Skills stream difficult to justify.

We anticipate a rush of nomination applications being lodged before 30 June based on the current income thresholds, so expect a backlog of applications and processing delays.

Be alert but not alarmed: compliance is key

Heading into the second half of 2025, employers must be prepared for the possibility of unannounced inspections or detailed monitoring requests from the Australian Border Force (ABF) and Fair Work Ombudsman (FWO).

As a former Minister for Immigration, Citizenship and Multicultural Affairs warned: “The ABF will be out there enforcing the law. Businesses who do the wrong thing should be ready for a knock at the door.”

Conduct regular internal compliance reviews

Partner with external providers to undertake internal compliance reviews. It is far easier to address non-compliance internally than it is to wait for an inspector to identify it and compel certain actions or impose sanctions. This might include, for example, reviewing your sponsored employees’ files to ensure you have all required documents and that nothing is out of date. Review your payroll records to confirm that all employees, especially visa holders, are receiving correct wages and no unlawful deductions are occurring. If you identify any issues, seek advice, take corrective action immediately and document it.

Internal reviews can be scheduled (quarterly, biannually or annually depending on the size of the workforce, number of visa holders and system maturity) and should be done by someone knowledgeable in the requirements.

Keep records organised and accessible

One of the first things inspectors will ask for is evidence of compliance – such as payslips, time sheets, copies of visa and work rights checks etc.

Ensure your record-keeping is up to date and that you can retrieve records quickly. Ensure files are maintained (even after the employment relationship ends). Missing or chaotic records raise red flags and can prolong an investigation.

Comply with inspectors

It is critical to seek advice and understand the roles and rights of inspectors. More importantly, it is critical to understand your obligations to cooperate with inspectors. Provide training to relevant persons within the organisation on inspection protocols.

Stay informed

Legislative changes are regular and fast paced. It is very important to ensure you have a system in place to stay across the changes and understand your obligations.

Reminder: visa holders still have employment rights

This July will mark two years since s40B was introduced into the Fair Work Act 2009 (Cth) (FW Act). While short, the provision has a significant impact on employers’ dealings with employees who are visa holders. It reads:

For the purposes of this Act, any effect of the Migration Act 1958, or an instrument made under that Act, on the validity of a contract of employment, or the validity of a contract for services, is to be disregarded.

The Explanatory Memorandum released at the time explained the term as making the policy position explicit that “a migrant worker working in Australia would be entitled to the benefit of the FW Act regardless of migration status, including in relation to wages and entitlements conferred by the statute or a fair work instrument”.

Depending on the nature of the engagement, s40B in the FW Act means that, even where a migrant worker has ceased to have the lawful right to work, they may still be entitled to the usual termination rights like the payment in lieu of notice and the payment of accrued but unused entitlements.

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.

As flexibility and remote work become a fixture of modern working life, employers are starting to grapple with how flexible working arrangements may impact their consideration of other acceptable employment for the purposes of redundancy. Two recent Fair Work Commission (FWC) decisions have found that an employer must take an employee’s personal circumstances into account, as well as the inherent requirements of the role, when considering if remote working arrangements (or the absence of) means an alternative role is acceptable.

In a recent Kingston Reid insight, we explored how the increasing normalisation of flexible work is reshaping the employment landscape and employee expectations. Remote working arrangements are a particularly relevant consideration in cases where an offer of redeployment alters or removes an employee’s existing remote working arrangements, with key questions arising about whether changes to location and flexibility can affect the suitability of the alternate role.

Reducing redundancy pay under the FW Act

Under the Fair Work Act 2009 (Cth) (FW Act), employers can apply to the FWC to reduce redundancy pay where the employer has obtained other acceptable employment for the employee.

The FWC has discretion to reduce the amount of redundancy pay to an amount it considers appropriate, which may be nil. In deciding whether to exercise such discretion, the FWC is required to make an objective assessment as to whether the alternative employment is acceptable, regardless of the subjective views of the employer or the employee.

In making its assessment, the FWC will consider a range of factors, which generally includes:

• rate of pay;
• hours of work;
• work location;
• seniority;
• benefits;
• job security;
• continuity of service;
• accrual of benefits; and
• the employee’s personal or family circumstances, including carer responsibilities.

Full-time remote work not acceptable employment

In TAE Aerospace Pty Ltd v David Vanner [2025] FWC 953, the employee’s substantive role was made redundant while he was on secondment in another role. The employee was offered redeployment with a related entity to a position based in Melbourne, which would require the employee to work remotely on a full-time basis, as he lived in Brisbane.

While the employer argued the location had not changed because the employee had been working remotely full-time during his secondment, the employee had clearly told the employer that he could not continue with the full-time remote work on a permanent  basis, as he had struggled with the remote work due to his family responsibilities and had intended to return to his substantive role.

The FWC found that the proposed redeployment requiring permanent full-time remote work involved a change in location, as it was the employee’s substantive role that was made redundant, not the seconded role, and the substantive role included access to a physical workplace, as stated in the employee’s position description.

The FWC found that while the role was within the employee’s skill set, the change in location, reduction in remuneration by way of ceased eligibility for a bonus and incentive scheme, and reduction in seniority, meant the offer of redeployment was reasonably unacceptable to the employee and dismissed the employer’s application to reduce redundancy pay.

Inability to work remotely did not make employment unacceptable

In Mater Misericordiae Ltd t/a Mater v Robyn Tyler [2025] FWC 1396, an employee was offered a new role at the same workplace following redundancy, with the new position retaining the same pay rate, level of seniority and hours of work. The employee rejected the offer of alternative employment on the basis she would be required to perform all hours of work from the employer’s workplace and it was her preference to work remotely at least one day per week to manage study commitments.

The employee had an informal arrangement to work from home two days per week in her existing role. The FWC agreed with the employer’s argument that as the employee did not have a contractual entitlement to work remotely or an approved flexible working arrangement under the FW Act, there was no entitlement to continue working remotely in absence of the employer’s approval.

The FWC found the absence of a formal entitlement to remote work meant it was at the employer’s discretion whether to allow remote working arrangements and concluded the role was acceptable alternative employment, reducing the redundancy pay entitlement to zero.

Key takeaways: when is remote work a relevant consideration?

Flexible and remote working arrangements as part of an offer of redeployment must be assessed having regard to all the relevant circumstances, including the nature of the role, any legal entitlement an employee has (or does not have) to work remotely and the employee’s personal circumstances.

Key takeaways for employers from these cases include:

Flexibility is not a substitute for acceptable employment

A remote working arrangement does not automatically make a role acceptable and will not avoid redundancy pay obligations if the role is otherwise unsuitable. The FWC will consider all relevant circumstances, including the role’s location, the employee’s circumstances and the nature of the original position.

Legal entitlement

Remote working arrangements that are contractually agreed or granted under s65 of the FW Act carry greater weight and may make a redeployment offer that removes this entitlement unacceptable.

Lifestyle preferences are not enough

While the FWC will consider an employee’s personal circumstances and give weight to factors such as family responsibilities, a mere preference to work remotely to support personal convenience, such as scheduling and study commitments, may not be enough to make an alternative role that does not include remote work unacceptable.

Effective consultation

Where an employee raises concerns about the prevalence of remote work in an alternative role, the employer should consider and seek to address those concerns.

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.

What happens when your worker is exposed to workplace risks while working overseas?

An Australian journalist, Lauren Tomasi, made international headlines when she was struck, mid-broadcast, by a rubber bullet while reporting on riots in Los Angeles.

Behind the immediate concern though sits a more subtle question echoing through boardrooms and safety teams: what are our health and safety obligations when our people are working or injured overseas?

Tomasi, an Australian reporter based in Los Angeles as a US Correspondent, was reporting on a volatile protest unfolding when the incident occured. Footage released shows police firing crowd control munitions and hitting Tomasi in the process. The incident highlights a broader issue – how far do an Australian employer’s work health and safety (WHS) duties extend when the “workplace” is thousands of kilometres away, in a country not subject to Australian law?

This isn’t just a media issue though. It should be a wake-up call for any organisation with employees deployed internationally. It doesn’t matter whether they’re journalists, engineers, FIFO expats, aid workers, or even remote staff working from Bali on a six-month “work-cation”.

Legal framework: duties without borders?

The model WHS laws, implemented in all Australian jurisdictions except Victoria, impose a primary duty on persons conducting businesses or undertakings (PCBUs) (which includes employers) to ensure, so far as is reasonably practicable, the health and safety of workers while they are at work.

That duty is not territorially limited. While Australian WHS regulators may not be able to exercise powers overseas (that is, inspectors can’t exercise entry rights at workplaces at a warehouse in Paris, for example), the law still applies to Australian-based PCBUs sending employees abroad. This includes when:

• the employment relationship is governed by an Australian contract;
• the individual is seconded or assigned internationally from an Australian office; and
• the entity directing the work is an Australian company or its subsidiary.

If Tomasi was employed or contracted by a WHS-regulated Australian company, even while working overseas, her employer owes duties under Australian law.

“Based” overseas vs “posted” overseas: does it matter?

There’s a distinction between:

• a worker living and working permanently overseas, under a local employment contract or foreign subsidiary; and
• a worker temporarily sent on assignment by an Australian organisation.

In the first scenario, the worker (and their employer) would be governed by local employment and safety laws. In the latter, the worker remains the responsibility of the Australian PCBU.

Safety law looks beyond location to determine management or control, the person directing the work, and the person receiving the benefit of the work. Sending a worker overseas doesn’t absolve a PCBU of Australian safety obligations.

What is “reasonably practicable”?

Tomasi’s incident gives reason to consider the usual measures that an Australian PCBU could/should take when sending a worker overseas. And the risks of work overseas should attract all the ordinary considerations about reasonably practicable steps to be taken to ensure safety.

PCBUs sending workers to foreign (and potentially hostile) work locations would presumably need to consider:

• completing pre-deployment risk assessments (including political risks – think gold mining in West Africa);
• real-time intelligence monitoring;
• hostile environment safety training;
• providing and ensuring appropriate PPE (e.g. high-vis clothing, hard hats, protective footwear, safety glasses, etc.); and
• in-country support networks, evacuation plans, and security escorts.

Failing to plan for foreseeable risks can amount to a breach of Australian WHS duties (and also lead to workers compensation issues).

Broader implications for business leaders

This incident is the tip of the iceberg. The world is intricately connected and more so recently with the rise of the “internationally mobile” worker. The following examples come to mind:

• FIFO and fly-around engineers and mine workers working in Papua New Guinea, West Africa, or Mongolia;
• academics, scientists, or aid workers on global secondments; and
• employees approved to work remotely for extended periods from Indonesia, Phuket, or the Swiss Alps (wouldn’t that be nice?).

An assumption that “over there means not our problem” is dangerous. With remote work, cross-border mobility, and the age of decentralised workplaces, the legal exposure of employers is now geographically indifferent. It’s no different to the safety obligations a PCBU owes when ensuring its workers are safe while working from home.

Strategic takeaways

WHS professionals and business leaders should consider:

Mapping duties and control

• Who employs the worker?
• Who directs the work?
• Is there clarity in contracts, reporting lines, and insurance?

Pre-deployment risk protocols

• Does your organisation assess political, environmental, and security risks for overseas work?
• Are staff briefed, trained, and supported adequately?
• Have staff been given the PPE necessary to work safely while overseas?

Emergency and escalation plans

• Is there a process for responding to overseas incidents?
• Does the business have access to evacuation assets, local legal advice, or local security and trauma support?

Insurance and legal crossover

• Does your worker’s compensation policy cover overseas deployments?
• Could dual liability arise under foreign WHS or criminal codes?

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 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.