Insights & News

June 18, 2025

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.

May 6, 2025

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

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

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

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

Wage regulation and bargaining reform

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

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

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

Ban on non-compete clauses

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

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

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

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

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

Multi-employer and sector-wide bargaining

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

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

Portable entitlements

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

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

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

Casual and labour hire reforms

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

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

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

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

Workplace flexibility and work-life balance

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

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

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

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

Expanded leave and inclusion measures

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

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

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

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

Enforcement, safety and compliance

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

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

Industrial action, union rights and site access

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

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

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

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

Artificial intelligence (AI) and automation

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

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

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

Where to now?

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

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

May 2, 2025

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

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

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

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

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

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

How did we get here?

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

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

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

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

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

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

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

Coalition’s stance on penalty rates

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

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

Potential implications

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

The Fair Work Commission’s role

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

April 14, 2025

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

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

Discrimination under the WHS Legislation

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

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

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

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

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

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

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

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

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

What PCBUs need to do

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

[1] [2024] NSWDC 53.

The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

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

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

The answer? Yes, it could.

The facts

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

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

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

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

The legal landscape

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

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

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

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

The AWU’s position

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

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

Cement Australia’s defence

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

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

The FWC’s findings

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

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

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

Key takeaways from the Decision

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

Here are the practical lessons for employers:

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

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

The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

The Commonwealth Government recently approved the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 (the Code). The Code provides practical guidance on managing health and safety risks arising from sexual and gender-based harassment at work.

Wider context of the Code

The Code supports implementation of recommendation 35 of the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020). This recommended that work health and safety (WHS) ministers agree to amend model WHS laws to deal with psychological health and develop guidelines and a code of practice on sexual harassment.

The Code also complements the positive duty under the Sex Discrimination Act 1984 (Cth). This requires employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible (you can learn more about the positive duty here).

Recognising that sexual and gender-based harassment often occurs in conjunction with other psychosocial hazards, the Code should be read and applied in conjunction with the Work Health and Safety (Managing Psychosocial Hazards at Work) Code of Practice 2024.

What are the key takeaways from the Code?

The Code outlines a risk management process to assist PCBUs in meeting their health and safety duties. The four-step process includes:

1. Identify hazards

A PCBU must identify risks of sexual and gender-based harassment to workers, or to others arising from the work of the business or undertaking.

Identifying the risks of sexual and gender-based harassment involves understanding situations in which it could occur, including:

• when and where (e.g. at the workplace; while on site visits);
• how it could occur (e.g. from contact with customers or the public, or from other workers);
• the potential nature of the harassment (e.g. verbal or physical, overt, subtle); and
• who is likely to be affected.

2. Assess risks

After identifying the risks, the PCBU should assess the risk, consider the duration (how long is the worker exposed to the risk?), the frequency (how often is the worked exposed to the risk?), and the severity (how severe is this harassment?).

The Code identifies that frequent or prolonged exposure to forms of sexual harassment that are considered subtle or less serious can have a similar impact on someone’s psychological health as a single, ‘more severe’ incident.

3. Control risks

PCBUs should implement the most effective control measures that are reasonably practicable in the circumstances and ensure they remain effective over time. Control measures should be tailored to the PCBU’s size, type, work activities, and workforce.

The Code recommends several strategies, including:

• Design, systems and layout of work: consider varying the systems and design of work and the physical work environment. For example, consider meeting clients in the office rather than in isolated areas, discourage working alone, ensure workplaces have high visibility and effective communication systems.
• Training and education: regular training sessions for employees and management to raise awareness and understanding of harassment issues.
• Clear policies: develop and communicate clear policies that define unacceptable behaviour and outline the consequences of such actions. Ensure all inappropriate or harmful behaviours are addressed early.

4. Maintain and review control measures

The PCBU must review and modify or replace a control measure if it is not working effectively. The reviews should be done regularly, and must be done:

• when the control measure is not eliminating or minimising the risks so far as is reasonably practicable;
• before a change at the workplace that is likely to give rise to a new or different health and safety risk that the control measure may not effectively control;
• if a new hazard or risk is identified if the results of consultation indicate a review is necessary; or
• if a health and safety representative requests a review because they reasonably believe one of the above has occurred and it has not already been adequately reviewed.

WHS consultation obligations apply at all stages during this risk management process.

What does this mean for your business?

Codes of practice are admissible in court proceedings under WHS laws and courts may rely on the Code in determining what is reasonably practicable in the circumstances.

While the Code only applies in the Commonwealth jurisdiction, the guidance is relevant for all business and can be used to guide risk management processes. We will likely see other states and territories introduce similar codes of practice in the near future.

The views expressed in this article are general in nature only and do not constitute legal advice. Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.