Insights & News

February 19, 2025

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

2024 continued to shine a light on corporate culture claims, which to be fair, follows several years of increased media scrutiny of cases in which individuals (some high profile, others not) have been accused of inappropriate conduct, including sexual harassment.

What these cases demonstrate is the changing public sentiment towards inappropriate behaviour in the workplace. This has driven a change in the way that organisations respond to and address these kinds of claims. Take for example, the recent independent external review undertaken by Nine Entertainment into allegations of inappropriate behaviours impacting the company’s culture. The public discourse around such behaviours has in recent years been elevated to such an extent that the external report has been voluntarily published publicly, indicative of a rising “high water mark” in corporate accountability, particularly in light of increasing regulation with respect to psychosocial hazards and of course, the positive duty to prevent sex-based discrimination (including sexual harassment) in the workplace, which has now been in effect for over two years. In 2025, another area that might be broadly bundled under the moniker of “corporate culture”, will be the issue of free speech and political opinions being aired in the workplace – a notoriously vexed area that can present a myriad of challenges for employers to address, for a range of reasons.

In 2025, another area that might be broadly bundled under the moniker of “corporate culture”, will be the issue of free speech and political opinions being aired in the workplace – a notoriously vexed area that can present a myriad of challenges for employers to address, for a range of reasons.

There is no shortage of people who hold strong views, and this has the potential to become an increasingly challenging area to navigate for employers in light of political developments overseas, as well as other significant local events. This may also pose psychosocial risks in the workplace, which will become increasingly difficult to control.

Whistleblower protections
Whistleblower frameworks will also be an area of much focus in 2025, as ASIC undertakes its 5-year statutory review of the federal whistleblowing regime. That review will of course take place against the backdrop of the scathing conclusions reached by the Senate Economics References Committee in its investigation into ASIC’s own performance as a regulator, published in July 2024[1], which also included a range of recommendations for the whistleblower regime more generally, including – of note – “pecuniary incentives and compensation for whistleblowers who make a substantiated disclosure”.

Essentially, establishing a financial incentive to whistleblowers to make a disclosure where there would be a “significant public benefit”, or otherwise where that person might experience significant personal detriment in making such a disclosure.

With this level of scrutiny applied to the behaviour of individuals (both alone and collectively), and the possibility of changes to the statutory whistleblowing framework on the horizon, it is a must for organisations to be revisiting their governance frameworks around conduct issues. This will remain a high priority issue for the C-suite, with regulator activity, particularly with respect to psychosocial hazards and sexual harassment, on the increase.

Unfair dismissal and general protections claims
One observation of 2024 was that, at least in some of our offices, there appeared to have been an increased number of individual claims, particularly unfair dismissal and general protections claims with which our lawyers were asked to assist. This seems to be consistent with Fair Work Commission (FWC) data showing that unfair dismissals were (still) the most common lodgement type in 2023-24, making up 37% of total lodgements, with general protections claims making up 14%[2].

The reasons for the volume of individual claims are less clear; although there is speculation that economic (or “cost of living”) pressures could be playing a role. However, what does seem apparent is that the visibility of high-profile individual claims in recent years, coupled with ongoing discourse regarding both the Respect@Work and Closing Loopholes legislative reforms, seem to have re-established more broadly the industrial rights of the individual.

With this trend in mind, employers will be well advised to revisit their approach to internal investigations, highlighted by some recent decisions from the FWC. In one such case, the FWC determined that, despite the conclusions of an investigation, bullying allegations against an employee were not, in fact substantiated at all and that the employer had had no valid reason to dismiss. In that case, the FWC commented that the employer “appeared to believe that the sheer number of allegations presented a persuasive case of guilt”[3].

Aside from ensuring investigations are conducted fairly, and with sufficient evidence collected and appropriately tested and weighed, it’s also critical to recognise the collateral risks of workplace investigations and to assess how those risks must also be managed, including for example, the risk of re-traumatisation.

Wage theft
Regulators will continue to have a strong presence in 2025, noting the Fair Work Ombudsman (FWO) announced that it recovered $473m in underpayments in 2023-2024[4]. According to its media statement, this is the third highest annual figure recorded. As the FWO has previously indicated[5], vulnerable migrant workers, visa holders, and the large corporate sector (which represented $333m of the recovered underpayments) will continue to remain a focus for the regulator.

This is particularly so as the new criminal “wage theft” provisions take effect on 1 January 2025, following the release of the Voluntary Small Business Wage Compliance Code[6] in December 2024. With the potential of criminal sanctions for intentional underpayments and significantly increased penalties for underpayments generally, compliance with industrial instruments must remain a top priority for all organisations in 2025.

Right to disconnect
2024 saw the introduction of the highly controversial right to disconnect. While the right to disconnect quickly became the subject of significant media coverage and debate, the full impact of the new laws is yet to be seen. The FWC’s new jurisdiction to deal with disputes relating to the right to disconnect will continue to be an area to watch for employers in 2025. We also expect to see further developments in the federal courts as applicants rely on the exercise of the right to disconnect in general protections applications.

WGEA reforms and gender pay gap data
The other area of focus for employers in 2024 was compliance with the introduction of further WGEA[7] reforms and the herald of its new private and public sector gender pay gap data publishing requirements.

On 20 November 2024, WGEA’s Gender Equality Scorecard 2023-24[8] was published, which highlighted the observable shift in employer focus and public attention on the issue of gender equality. The report suggests that the anticipated publication of employer gender pay gap data has had a motivational effect, with the median gender pay gap decreasing slightly by 0.6pp between 2022-23 and 2023-24.

The report also highlights further areas of continued focus, including gender segregation of industries, seniority of appointments (particularly at the board level), prevention of sexual harassment in the workplace, and employment conditions relating to family and caring responsibilities.

Flexible work arrangements
Employees have always had the right to request flexible work arrangements under the Fair Work Act 2009 (Cth) (FW Act). However, changes to the flexible workplace arrangement regime came into effect in June 2023, which not only expanded employees’ rights to make such requests, but also opened the door to refusals being the subject of arbitration in the FWC.

Following those changes, in 2024 we started to see a steady stream of flexible working arrangement disputes filed in the FWC. So far, the FWC’s approach to determining these disputes has been finely balanced and notably, one case[9] even acknowledged the importance of face-to-face interactions and attendance at the workplace in refusing a working-from-home request in which the employee sought to work 100% of his five-days working week from home.

People managers and supervisors should be trained to ensure they recognise what a flexible work arrangement request is, and the importance of genuinely considering and consulting with an employee on the request before implementing a decision.

Given the FWC now has powers to arbitrate a decision to refuse a flexible working arrangement, businesses should review what systems and process they have in place for receiving, reviewing and determining any such request, and ensure that in doing so, that they balance the needs of each of the parties.

In addition to these rights, those with cover under the Clerks – Private Sector Award 2020 will be watching and waiting to see how the Full Bench of the FWC deals with developing a standard working-from-home clause in the first half of 2025. For others, this development will be on the radar as any new term will likely become a “blueprint” for other modern awards.

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

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

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

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

Regulated workers
Finally, 2024 was a year where it could be said that we saw more new compliance requirements than ever before, with the introduction of new powers for the FWC to set minimum conditions for workers who are not employees at all.

The new concept of a regulated worker captures particular independent contractors working in road transport and through digital platforms who work in a manner that is “employee-like”.

The Transport Workers Union was quick off the mark to make applications to the FWC for the making of Minimum Standards Orders, the run to making Minimum Standards Orders hit a quick stop, with the FWC expressing its commitment to consulting heavily on the process for making the Minimum Standards Orders, and making orders for the Road Transport Advisory Group to provide advice about how it proposes to conduct itself and undertake consultation for its advice to the FWC to support this process.

In the meantime, the Minister for Workplace Relations has made the Digital Labour Platform Deactivation Code and the Road Transport Industry Termination Code which will each commence on 25 February 2025 (or the date of their formal registration, if later) to codify the disciplinary processes that must be followed to ensure the fair deactivation of digital labour platform workers, and the fair termination of owner-drivers and other independent transport workers.

While observers might have anticipated that the Codes might have taken inspiration from the Small Business Fair Dismissal Code (which applies in respect of the dismissal of employees of small businesses), the Codes go considerably further and require particular warning and appeal processes to be followed, before a deactivation or dismissal may be considered fair.

As employee-like workers gain access to unfair deactivation and termination processes from 26 February 2025, it will remain to be seen how the FWC exercises its discretion in respect of the application of the Codes to perform its functions in a sensible manner, which appropriately balances the desire for procedural fairness with a need to maintain the integrity of independent contracting arrangements.

With the reforms that have already taken place in 2024 and the issues we see staying squarely in focus for employers in 2025 (and beyond), it will be critical for organisations to undertake a fresh look at their workplace policies and training offerings, to ensure they align with new legislative or regulatory requirements.

[1] The Senate Economics References Committee: ASIC final report available online here.
[2] Statistics extracted from the Fair Work Commission’s 2023-2024 Annual Report (stated as at 30 September 2024), available online here.
[3] Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784 at [24].
[4] Fair Work Ombudsman media release dated 23 October 2024: available online here.
[5] Office of the Fair Work Ombudsman 2023-2024 Annual Report: final report available online here.
[6] The Voluntary Small Business Wage Compliance Code is available online here.
[7] Workplace Gender Equality Agency.
[8] The WGEA Gender Equality Scorecard 2023 – 2024 is available online here.
[9] Shane Gration v Bendigo Bank [2024] FWC 717.

February 12, 2025

Fixed-term contracts have long been a popular tool for employers seeking flexibility in their workforce. Many assume that when such contracts expire, employment simply ends without any risk of unfair dismissal or general protection claims. But what happens when an employee has been engaged on consecutive fixed-term contracts for years? Does the non-renewal of their final contract amount to dismissal, or is it simply the agreed conclusion of the employment relationship?

These were the key questions at the heart of the decision in Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, a case that tested the legal boundaries of fixed-term employment and unfair dismissal protections.

Background
Mr Tim Alouni-Roby, a professional rugby league referee, was employed by the National Rugby League (NRL) on a series of consecutive maximum-term contracts between February 2015 and November 2020. In June 2020, Mr Alouni-Roby was informed that his final contract would not be renewed, and his employment ended following the expiry of the final employment contract in November 2020.

Believing that the non-renewal of his contract was linked to the exercise of his workplace rights, Mr Alouni-Roby filed a general protections claim with the Fair Work Commission (FWC), arguing that the non-renewal of his most recent maximum-tern contract should be classified as a dismissal. However, the FWC dismissed his claim, ruling that his employment ended due to the expiration of his contract.

Dissatisfied with this outcome, Mr Alouni-Roby made several appeals, firstly to the Full Bench of the FWC, then seeking judicial review before the Federal Court of Australia. He finally took his case to the Full Court of the Federal Court of Australia in February 2024. He argued that the primary judge of the Federal Court erred in the findings in interpreting the law, relying on four grounds of appeal.

The Decision

Are outer-limit contracts with early termination clauses an exception to dismissal?
One of the central questions before the Full Court was whether outer-limit contracts—fixed or maximum-term contracts that allow for early termination—fall under the exception of whether a person has been “dismissed” under section 386(2)(a) of the Fair Work Act 2009 (FW Act). Whether a person has been dismissed is a critical factor in determining eligibility for unfair dismissal or a general protections claim.

Section 386(2)(a) of the FW Act states that an employee is not considered dismissed if they are employed under an employment contract for a specified period of time, task or season, and the employment ended as a result of the expiry of the time, task or season.

In reviewing the legislative intent behind this provision, the Full Court confirmed that fixed-term or maximum-term contracts, including those that allow for early termination, still fall within this exception. The Explanatory Memorandum for the Fair Work Bill 2008 (Cth) reinforced this interpretation, explicitly stating that the “…fact that an employment contract may allow for earlier termination would not alter the application of [s 386(2)(a)].”

Previously, under the predecessor legislation, the term “contract of employment for a specific period of time” was often interpreted as excluding outer-limit contracts that allowed for early termination. However, the Full Court ruled that the phrase must be construed in the context of the current, differently crafted, legislative provision as a whole. The Full Court found that section 386(2)(a) was intended to function differently from past provisions, aligning with the statutory purpose of excluding employees from unfair dismissal protections whose employment is terminated by agreement—rather than by or in response to some unilateral act of an employer—upon the completion of an agreed (and specified) period, task or season.

Does non-renewal of a fixed-term contract count as a dismissal?
Mr Alouni-Roby further argued that the FW Act should interpret “dismissal” to include an employer’s decision not to renew a fixed-term contract, even when an employee had been repeatedly engaged on similar contract. His argument was based on the idea that, in “practical reality”, his ongoing employment through a series of renewed maximum-term contracts created a legitimate expectation that his contract would be renewed.

However, the Full Court rejected this argument, emphasising that employment is contract-based. When a contract expires naturally, the employment ends as agreed. Not because of the employer’s action. Mr Alouni-Roby expectation after the expiry of the contract was “irrelevant” to the question (except to the extent that it might reflect a sham transaction). Furthermore, the suggestion by Mr Alouni-Roby that the NRL engineered his non-renewal by manipulating performance rankings was irrelevant and not instructive. Even if the reasons to non-renewal was unfair, it was not for the Full Court to say. The matter at hand was about how his employment ended, not why the contract was not renewed.

Does the FWC need to consider the NRL’s conduct in light of section 578 of the FW Act?
Mr Alouni-Roby’s final argument was that the FWC failed to perform its functions to take into account the objects of the FW Act and the equity, good conscious and merits of the matter when considering the NRL’s conduct throughout his employment, as required under section 578 of the FW Act. He claimed the FWC should have investigated whether;

1. there was a genuine agreement that his employment would end upon the expiration of the contract;
2. the NRL’s treatment of him influenced how his employment ended; and
3. the NRL’s use of fixed-term contracts was a strategy to avoid unfair dismissal protections.

The Full Court dismissed this argument, stating that section 578 does not override or modify section 386. The FWC’s role was simply to determine whether his contract expired naturally or was terminated by NRL’s initiative—which it correctly did. Section 578 does not allow the FWC to ignore or alter legal rules based on fairness or merit.

Accordingly, for the reasons outlined above, the Full Court dismissed the appeal.

Takeaways
This decision reinforces that well-drafted fixed-term or maximum-term contracts, including those allowing early termination, do not trigger unfair dismissal or general protection claims, provided the contract expires naturally. This existence of a legitimate expectation of ongoing employment is irrelevant, as the court made clear that “there can be no expectation of an ongoing employment relationship without an ongoing employment contract.”

However, employers must still exercise caution, as fixed or maximum-term contracts may still be deemed ongoing if their contract does not clearly define a specified period, task or season. Employers must also be mindful of the new rules which apply to the engagement of employees on fixed term contracts, in particular that provision which limit the term of a fixed term contract (including extensions or renewals) to a period of no longer than two years.

To mitigate risks, employers should review their employment contracts in light of this decision, ensuring they are clearly drafted and legally compliant to avoid potential unfair dismissal or general protection claims. Please let us know if we can assist.

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

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

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

Australia’s industrial relations landscape has undergone a significant transformation, starting with the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth). As the first comprehensive review of these reforms progresses, the question remains: are these changes achieving their intended outcomes?

Key findings from the Secure Jobs, Better Pay Review

On 3 February 2025, the independent Review, led by Professors Mark Bray and Alison Preston, released an interim report featuring 19 draft recommendations. While employee representatives have largely welcomed the reforms, viewing them as a rebalancing of workplace power, the business community has voiced concerns over their operational impacts and long-term economic implications.

The Review Panel identified four key “aspirations” of the Government’s Secure Jobs, Better Pay reforms, focusing on whether these changes are meeting their objectives.

Advancing wages

The reforms, particularly those related to multi-employer bargaining and the better off overall test (BOOT), aim to expand the reach and scope of collective bargaining, thereby increasing wages and improving workers’ financial circumstances.

The Review Panel acknowledges that insufficient time has passed since the amendments came into effect to assess their long-term impact. However, early signs indicate a significant increase in the coverage of collective bargaining. Between September 2022 and September 2024, the number of employees covered by a collective agreement rose by 27%, aligning with the intended outcomes of the amendments.

Multi-employer bargaining provisions are designed to enhance union representation, requiring unions to be involved in proceedings and allowing them to initiate bargaining in certain circumstances, even without proving majority support. Although there have been modest improvements in union coverage, the Review notes that small wage increases prompted by the reforms have not fully offset historical wage stagnation, with a significant gap remaining between real wages and labour productivity.

Employer groups have been critical of the reforms, particularly those that empower unions to secure wage increases. They argue these provisions could lead to more industrial action and increased costs, while unions contend they are crucial for breaking wage stagnation.

Integrating institutions

One of the most significant changes was the abolition of the Australian Building and Construction Commission (ABCC) and the Registered Organisations Commission (ROC), with their functions transferred to the Fair Work Ombudsman (FWO) and Fair Work Commission (FWC). The Review notes that the FWO has taken a more conciliatory approach, resulting in higher wage recoveries in the construction sector. However, employer groups argue that this has weakened enforcement against union misconduct. The Review supports this concern, pointing out that the FWO’s enforcement powers are now less robust than those of the ABCC, particularly with regard to contraventions such as unlawful picketing.

Closing the gender pay gap and improving gender equality

The introduction of paid family and domestic violence leave, pay transparency laws, and adjustments to Equal Remuneration Orders are cited as significant steps toward closing the gender pay gap. The Review Panel suggests these measures are working as intended, although their long-term impact remains to be seen. For instance, the FWC’s ability to issue Equal Remuneration Orders is still largely untested, with only one case heard since the new laws took effect.

The Review also highlights significant wage increases in female-dominated sectors, such as aged care, as a result of the Secure Jobs, Better Pay reforms. However, stakeholders have expressed concerns over the financial burden of work value cases, often funded by union members, many of whom are low-paid. Employers also worry about absorbing wage increases without additional government funding.

Job security

The new restrictions on fixed-term contracts aim to improve job security, but they have created challenges for employers in project-based industries. The Review recommends revisiting these restrictions to provide greater flexibility, offering hope to employers grappling with the current regime.

Draft recommendations: the path forward

The Review presents several draft recommendations to ensure the reforms continue to achieve their goals;

1. Conduct a further review in 2-3 years to assess long-term impacts, particularly on bargaining, job security, and gender equity (Recommendation 1)
2. Strengthen employer guidance to assist in understanding obligations when receiving a written request to bargain, including providing a template written request (Recommendation 5)
3. Amend the mandatory conciliation conference under s 448A of the Fair Work Act 2009 (Cth) (FW Act) to allow discretion if the parties agree (Recommendation 6)
4. Monitor the impact of gender pay equity measures to ensure sustained progress (Various Recommendations)
5. The Australian Government should consider whether it is appropriate to extend the protected attributes in the FW Act to cover menopause, as well as other reproductive health issues (Recommendation 15).
6. Refine fixed-term contract restrictions to balance flexibility with job security (Recommendation 16)
7. Improve enforcement mechanisms by engaging digital job platforms and enhancing FWO resources (Recommendations 18 and 19)

Conclusion: a work in progress

Interested parties now have until 16 February 2025 to respond to the draft report, with a final report expected by the end of March. While the draft report provides some insight into the current industrial relations environment, its findings are limited by the fact that not enough time has passed to fully evaluate the reforms’ effects. That is reflected in the modest nature of the draft recommendations.

The implementation of the Review’s final recommendations will depend on the outcome of the upcoming federal election, to be held by May 2025. Regardless of the outcome, employers should prepare for further reviews before any substantial changes are made to the system.

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

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

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

A recent safety case in New Zealand involving the conviction of former Port of Auckland (POA) CEO has set a significant legal precedent for workplace safety and corporate accountability in New Zealand.

This case, the first of its kind against an officer of a large company, underscores the extent of due diligence obligations required under work health and safety legislation and has far-reaching implications for corporate officers even across Australia. This is due to the near-identical provisions between New Zealand’s Health and Safety at Work Act 2015 (HSW Act) and Australian work health and safety legislation.

Background
The former POA CEO, Tony Gibson, was charged by Maritime New Zealand following a fatal workplace accident in which a stevedore was killed at the Port of Auckland. On 30 August 2020, the stevedore was crushed when a shipping container fell due to a twist-lock mechanism failure. He had been working within an exclusion zone in direct violation of POA’s safety policies after being directed to do so by the ship leading hand. The incident highlighted systemic safety failings and led to charges against both POA and Mr Gibson.

POA faced two charges relating to the conduct of the ship leading hand and underlying systemic failures to protect the health and safety of its workers. POA pled guilty to both charges and was convicted accordingly. The case against Mr Gibson focused on whether he had exercised due diligence in ensuring POA’s compliance with its safety obligations as required under section 44 of the HSW Act.

Mr Gibson was charged with a;

1. failure to take reasonable steps to ensure that POA had available for use, and used, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, including by having:
   1. clearly documented, effectively implemented, and appropriate exclusion zones around operating cranes
   2. clearly documented, effectively implemented, and appropriate processes for ensuring coordination between lashers and crane operators; and
2. failure to take reasonable steps to verify the provision and use of the resources and processes described above.

Mr Gibson successfully defended himself against charge (a)(ii) above, however was found guilty of the remaining charges.

Mr Gibson’s failings as CEO
The prosecution alleged the following failures regarding Mr Gibson’s requirement to exercise due diligence;

1. Failure to oversee safety strategy implementation: Despite POA having a health and safety strategy, Mr Gibson did not ensure its effective implementation across all levels of the organisation. Mr Gibson also failed to take sufficient steps to ensure existing safety protocols were properly implemented.
2. Inadequate verification processes: Mr Gibson relied on subordinates without ensuring that safety protocols were being effectively executed. There was inadequate auditing, monitoring and reviewing of health and safety systems to verify their effectiveness and address risks.
3. Passive rather than proactive engagement: The court emphasised that due diligence requires an officer to be proactive and systematic in ensuring compliance. Mr Gibson was required to systematically ensure safety compliance through ongoing monitoring, verification and review, rather than simply delegating responsibility with no active oversight.

Legal reasoning and key takeaways
The court set out several key principles regarding an officer’s due diligence duties;

• assessment of due diligence is fact and circumstance-dependent and applies to officers of all levels, regardless of the size of the organisation;
• in the case of large, hierarchical organisations, the duty to exercise due diligence is not limited to governance or directorial oversight functions;
• an officer in a large organisation does not need to be involved in hands-on, day-to-day operations, but cannot simply rely upon others within the organisation either;
• an officer cannot simply delegate health and safety responsibilities without oversight;
• officers must personally acquire and maintain sufficient knowledge to satisfy themselves that the organisation is complying with its work health and safety duties. This includes maintaining sufficient knowledge of the operations of the organisation;
• officers must ensure that, where there exists in the organisation a work health and safety specific role, that person has the necessary skills and experience to properly execute that role. They must also adequately and regularly monitor their performance to ensure that they are properly discharging their functions in ensuring the organisation’s compliance with its duties;
• the officer must ensure that entrenched and adequate systemic processes are put in place to ensure that the organisation complies with its duties. In any large organisation, the existence and adequacy of such systems are key, there cannot simply be a reliance on a paper system;
• effective reporting systems must be in place to ensure health and safety risks are communicated across all levels of the organisation;
• due diligence requires the engagement or arrangement of an effective process of monitoring and review of the organisation’s systems and processes to ensure they are achieving their purpose and relevant safety standards are adhered to;
• a mere reliance on industry standards is not a sufficient defence if the officer’s actions fall below the statutory standard.

Implications for Australia
Given the legislative similarities between the HSW Act and Australian work health and safety legislation, this case may influence how Australian regulators enforce safety obligations for corporate officers, particularly those in larger organisations. Key takeaways include;

1. Increased personal accountability: Officers cannot rely solely on the existence of safety policies; they must ensure that these are actively implemented and effective in practice.
2. Stronger enforcement by regulators: Australian safety regulators may adopt the approach taken in this case when considering charging officers of large corporations, increasing scrutiny on corporate leaders to verify that due diligence requirements are met.
3. Need for proactive compliance: CEOs and senior executives must engage in regular audits, oversight, and verification processes to ensure workplace safety obligations are upheld.
4. Precedent for future prosecutions: This case sets a strong precedent that Australian courts could use to assess due diligence obligations of officers in similar circumstances. Australian regulators may now focus on officers of larger corporations.

Conclusion
The conviction of Mr Gibson serves as a stark reminder that corporate officers have a personal duty to exercise due diligence in workplace safety. This could mark a shift towards holding executives of large companies accountable for systemic failures, reinforcing the need for proactive engagement in health and safety compliance.

For Australian businesses, the decision highlights the necessity of robust governance frameworks and rigorous oversight to prevent similar liability under work health and safety legislation. As safety regulators continue to monitor developments, corporate leaders should satisfy themselves that safety is not just a policy on paper but a fully embedded operational priority.

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

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

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

February 7, 2025

As Australia’s largest specialist workplace law firm, we are delighted to announce that Kingston Reid has joined elite global labour law alliance, Ius Laboris, as its exclusive Australian member law firm, connecting Kingston Reid with more than 50 markets around the globe.

Ius Laboris is an alliance of 1,500 lawyers across 56 countries, offering its member’s clients access to expert localised legal and strategic advice across the globe. Ius Laboris is consistently recognised as a leading legal service provider in employment, labour relations, health and safety, global mobility and immigration and related areas of expertise.

Joining Ius Laboris is a significant milestone for our firm. This alliance aligns with our commitment to delivering exceptional legal services and provides our clients with unparalleled access to global top-tier expertise, ensuring comprehensive support in navigating complex employment and labour law challenges. We look forward to collaborating with our international counterparts to address the evolving needs of employers in today’s dynamic legal landscape.

Kingston Reid’s membership of the Ius Laboris global alliance will enable the firm to deepen its service offering to clients, offering:

• Global Reach: access to a network of leading employment law firms worldwide, providing coordinated legal services across multiple jurisdictions.
• Local Expertise: international clients can tap into Kingston Reid’s in-depth knowledge of Australian employment law, and local clients will have the benefit of exclusive insights into legal developments and emerging issues across all jurisdictions in which the alliance operates.
• Comprehensive Services: access to additional tools and legal support services available through Ius Laboris.

For more information about Ius Laboris, please visit iuslaboris.com.

Alice DeBoos
Managing Partner
+61 2 9169 8444
[email protected]

February 4, 2025

Historically feminised industries and occupations, including those in the care sector, have been at the forefront of social, economic and political debate over recent years. In this Insight, we consider some of the landmark decisions which have been handed down in the aged care and early childhood education and care (ECEC) industries – including a recent landmark multi-employer supported bargaining agreement – and how these decisions will impact employers.

The Work Value Case – aged care

The Fair Work Commission’s Work Value Case[1] in the aged care industry was heard over 3 stages. As part of the Fair Work Commission (FWC) stage 3 decision, significant changes to employees’ terms and conditions of employment took effect from 1 January 2025.

The most significant of these changes were those recently made across 3 modern awards, as a result of lengthy proceedings before the FWC involving the Health Services Union and the Australian Nursing and Midwifery Federation. The FWC decisions have brought about changes to:

1. the Aged Care Award 2010 (Aged Care Award);
2. the Nurses Award 2020 (Nurses Award); and
3. the Social, Community, Home Care and Disability Services Industry Award 2010 (SCHADS Award).

A further shake-up of the aged care industry is looming, with the Aged Care Act 1997 (Cth) set to be repealed and replaced by the Aged Care Act 2024 (Cth).

All of these changes have, and will continue to have, wide-reaching implications across the aged care sector and other parts of the care industry.

So, what has changed?

The stages 1 and 2 decisions of the Work Value Case resulted in a 15% wage increase for many aged care workers, which came into effect on 30 June 2023.

The third and final stage decision was handed down on 15 March 2024 which varied the Aged Care Award, Nurses Award and SCHADS Award. These changes largely came into effect on 1 January 2025 and include:

• adding a definition to the Aged Care Award for ‘direct care’ employees to clarify their role in the aged care sector;
• a new classification structure for direct care workers under the Aged Care Award;
• a new classification structure for direct care aged care workers under the SCHADS Award which better aligns with the classification structure for direct care workers under the Aged Care Award;
• updates to the indicative duties and qualifications for general and direct care employees under the Aged Care Award;
• the transfer of nursing assistants working in residential care settings in the aged care industry from coverage under the Nurses Award to coverage under the Aged Care Award; and
• increases to the minimum pay rates for direct and general care workers covered by the Aged Care Award and aged care employees covered by the SCHADS Award.

There will also be a second increase to the minimum rates of pay for some aged care employees on 1 October 2025.

While these changes only apply to select cohorts of employees, the new classification structures should provide some clarity over how employees are classified in the industry.

A new Aged Care Act from 1 July 2025

In addition, the Aged Care Act 1997 (Cth) is set to be repealed and replaced by the Aged Care Act 2024 (Cth) (Aged Care Act), which will bring about further changes to the aged care sector from 1 July 2025.

Under the new Aged Care Act, aged care providers will (among other things):

• need to ensure their actions are guided by the newly introduced Statement of Rights;
• register with the Aged Care Quality and Safety Commission and have any residential care homes approved;
• need to comply with a revised set of provider obligations, including conditions on registration and new financial and prudential standards;
• need to ensure their workforce meets revised worker screening requirements;
• be subject to new statutory duties aimed at protecting the health and safety of individuals to whom the provider is delivering services to; and
• be subject to expanded whistleblower protections intended to ensure that aged care workers, and those in care, their families and carers can raise concerns or report information without fear of unfair treatment or reprisal.

With so many changes in play, it’s important that aged care providers ensure that they are across the amendments and have implemented the necessary changes across their operations.

Landmark ECEC decision – ‘first of its kind’ supported bargaining agreement

As part of the FWC’s gender pay equity research, one of the findings made was that work performed by ECEC employees has been historically undervalued in much the same way as the work of aged care workers.

To that end, a significant decision was handed down by the FWC on 24 January 2025, resulting in 20,000 additional ECEC workers being able to access a 15% pay rise over a two-year period, under a landmark multi-employer supported bargaining agreement. A further 33 employers applied to the FWC to be covered by the ECEC Multi-Employer Agreement 2024-2026 (Agreement), which is underpinned by the Children’s Services Award 2010 and the Educational Services (Teachers) Award 2020.

The supported bargaining agreement is the first of its kind, with now a total of 60 employers covered, making them eligible to apply for the federally-funded Education and Care Worker Retention Payment grant.

The aim of the grant is to attract and retain early childhood education and care workers nationally. It is a requirement of the grant that a workplace have a workplace instrument that applies to its employees. Employers may apply to join the Agreement to satisfy this condition. Importantly, ECEC employers have until 30 September 2026 to apply for the grant.

Key Takeaways

Aged Care employers

In light of the aged care industry changes, it is important that all employers within the sector:

• review worker rates of pay to ensure that they remain complaint with award minimums;
• ensure that employees covered by enterprise agreements which incorporate the awards remain better off overall;
• ensure that employees are correctly classified under the new classification structures;
• provide notice of any classification changes to affected employees;
• bear in mind the impending increases to minimum rates of pay to take effect on 1 October 2025; and
• begin considering the impacts the new Aged Care Act will have on their business and prepare accordingly.

ECEC employers

Employers in the ECEC sector may wish to consider their eligibility for the Education and Care Worker Retention Payment grant and whether they would like to opt-in to the scheme. Meeting the conditions for receipt of the grant may take some time, so ECEC employers should consider these matters as soon as possible, if they haven’t done so already.

[1] Aged Care Work Value Case [2022] FWCFB 200; 319 IR 127; Aged Care Work Value Case [2023] FWCFB 40; Aged Care Work Value Case [2024] FWCFB 150.

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

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

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

December 17, 2024

The High Court in Elisha v Vision Australia Ltd  [2024] HCA 50  has overturned a century-old body of case law by determining that the Applicant, Mr Elisha, was entitled to claim psychiatric damage for a breach of his employment contract arising from his former employer’s flawed workplace investigation into his conduct.

In doing so, the High Court found the employment contract between the parties incorporated Vision Australia’s disciplinary policy, which contained promissory terms including, where concerns of a serious nature are alleged, specific procedures, including a formal disciplinary meeting and a letter containing a written outline of allegations.

Background

Mr Elisha commenced employment with Vision Australia in 2006 as an adaptive technology consultant. During a work-related hotel stay, Mr Elisha was involved in an incident in 2015 with hotel staff, where he was accused of engaging in aggressive behaviour (Hotel Misconduct).

On 19 May 2015, Mr Elisha met with his manager who told him there was a “serious” complaint against him and gave him a “stand down letter” that required his attendance at a meeting two days later. The letter stated that the meeting would be conducted in accordance with Vision Australia’s enterprise agreement and disciplinary procedure. The allegations in the stand down letter were confined to the Hotel Misconduct.

At the meeting on 21 May 2015, Mr Elisha denied the Hotel Misconduct.

On 22 May 2015, during a meeting of Vision Australia’s management staff, a recommendation to prefer the hotel proprietor’s account of the incident was accepted and this finding was informed by previous allegations of aggressive behaviour by Mr Elisha, which were not put to him during the 19 May meeting.

Based on those findings, Mr Elisha’s employment was then terminated, and he was subsequently diagnosed with major depressive disorder.

What did the High Court consider?

Incorporation of Policies into the Employment Contract

A key issue was whether Vision Australia’s disciplinary policies were incorporated into Mr Elisha’s employment contract.

The employment contract stated that the employment conditions were to be in accordance with Vision Australia’s policies and procedures and that acceptance of the contract by the employee required him to agree that he would comply with those policies and procedures.

The Court found the inclusion of these terms meant that a reasonable person in the position of the parties would have understood these clauses created contractually binding obligations; and rejected Vision Australia’s claims that these obligations were “one-sided” and merely required Mr Elisha to obey lawful direction from it. The majority stated that it would “‘defy both logic and common sense’ to suggest an employer who was subjecting an employee to disciplinary action according to policies would not similarly be bound by those policies.”

Breach of Contract and Psychiatric Injury

The High Court also considered whether Vision Australia’s procedural failures made it liable for Mr Elisha’s psychiatric injury.

Scope of Duty

A clear distinction was made between what was referred to as a ‘scope of duty’ and the remoteness of damages under contract.  Scope of duty refers to a contractual duty imposed on an employer through terms of an employment contract (such as an obligation to conduct a fair and proper investigation) which is generally not ‘inherently designed to prevent psychological injury’.

In contrast, remoteness of damages is the determination of damages that occurred which was in the reasonable contemplation of the parties at the time of entering a contract.

Remoteness of Damage

The psychiatric injury suffered by Mr Elisha arising from the termination of his employment was found by the Court to not be too remote. Although the Court found damages for psychiatric injury upon entering the employment contract would not have been reasonably contemplated by the parties, the Court found that it was reasonable to expect that Mr Elisha would have been so distressed by the manner in which Vision Australia breached the employment contract and the consequences of the breach for him, that there was a serious possibility that Mr Elisha would suffer serious psychiatric harm.

In coming to this conclusion, the Court declined to follow a decision of the House of Lords in Addis v Gramophone [1909] AC 488, concluding that “over the last century, a great deal of water has passed under the bridge of Addis”.

Negligence and Duty of Care

The Court has previously found that there is no general common law duty of care to provide safe systems of work encompassing the provision of a safe system of investigation and decision making.

As the Court upheld Mr Elisha’s breach of contract claim, the majority found it unnecessary to consider this issue further.

Although the Court did not definitively rule on the negligence claim, it noted the significant challenge in establishing a novel duty of care in the context of disciplinary and termination processes.

Takeaways

The conclusion in this case stemmed from the finding that policies and procedures of Vision Australia were incorporated into Mr Elisha’s contract of employment. In not following the disciplinary procedure contain within those policies and procedures, Vision Australia breached the contract of employment.

This conclusion in itself is not novel.

What the decision makes clear is that there is an ability for an employee who suffers a psychological injury arising from the termination of their employment in a manner inconsistent with the contract of employment to seek damages for that injury.

What arises from the decision is the need to ensure that employment contracts are carefully drafted and do not inadvertently incorporate workplace policies that would impose binding obligations on an employer.

Employers should review their employment contracts in view of this decision.

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

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

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

November 18, 2024

Statistically speaking the deck is stacked against Australian small business, with 60% of new ventures failing in the first three years*. Combined with the challenge of navigating a global pandemic, and specialist workplace law firm Kingston Reid’s 5th birthday seems even more impressive. On 18 November 2019, Kingston Reid opened their doors across Sydney, Melbourne, and Perth with a founding team of 45. The name Kingston Reid might have been new, but the experience and footprint in Australia was anything but: most of the founding team having worked together for many years.

Despite the risks, DeBoos notes that Kingston Reid’s formation was a calculated play “given the gap in the market for a top-quality firm focused solely on workplace issues”. Five years on and there is tangible evidence with respect of this firm’s success: equal footing with ‘top tier’ firms in all legal directories, industry recognition from peers and independent research firms and “legal victories that have made a tangible difference to our client’s organisations and to the development of the law” says DeBoos. Yet none of these outcomes would have possible without the team which now boasts 16 partners (5 promoted internally) an office in Brisbane and a broader team more twice the size of the original 45-person outfit who saw ‘Day 1’. Rather than simply being lucky, DeBoos credits the firm’s focus on fostering a ‘Thrive culture’, where every team member is encouraged to grow personally and professionally. “Our team’s trust and respect for each other have been our greatest strength, and in my view the secret to our success” DeBoos shared.

To those not familiar with Kingston Reid’s expertise, they partner with clients to address their most pressing workplace law concerns – navigating the issues that matter the most. The firm represents employers in all workplace-related jurisdictions across all industries, including government, construction, ports and logistics, manufacturing, utilities, retail, banking and finance, professional services, IT and health. “Our work has impacted our clients in really important ways, from large-scale industrial disputes, sensitive litigation and investigation and incidents to crafting effective employment strategies. We’ve been there in times of crisis, like helping clients navigate tragic workplace events, and in times of growth, helping them protect and build their businesses” says DeBoos.

Obviously the 5-year journey has not been without its challenges, DeBoos revealing that one of the most valuable lessons learned along the way is the importance of flexibility and resilience – ‘rolling with the punches’. “You need to accept that nothing stays the same, and you always need to adapt” DeBoos says. The desire to ‘keep on keeping on’ DeBoos largely credits to the loyalty extended by Kingston Reid’s clients and its people – “we don’t manufacture widgets, we provide insights, expertise and analysis and we’re fortunate to have the best people delivering just that”. On the firm’s future DeBoos unashamedly expects continued growth, explaining that the original vision for Kingston Reid was never just to serve the founding Partners, rather it is “about building a sustainable future and a legacy for our team – and that remains true today”. Congratulations Kingston Reid!

*Source: ABS

November 15, 2024

The Industrial Relations Legislation Amendment Bill 2024 (WA) (Bill) was passed by State Parliament on 6 November 2024 and Royal Assent was given on 13 November 2024.

The Bill aims to modernise Western Australia’s (WA) state employment laws by amending the Industrial Relations Act 1979 (WA) (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act) to more closely align them with standards set out in the Fair Work Act 2009 (Cth) (FW Act).

Most changes introduced by the new legislation will commence on 31 January 2025, with other changes commencing at a later date.

The key reforms that take effect from 31 January 2025 include:

• introducing a new prohibition on sexual harassment in connection with work, consistent with the provisions contained in the FW Act;
• increasing casual loading for casual employees from 20% to 25%;
• introducing a new minimum condition enabling employees with at least 12 months’ service to request a flexible working arrangement in certain circumstances’;
• providing a new objective test for the terms “employee” and “employer” and “casual employee”, which is based on the real substance and practical reality of the relationship rather than strict contractual terms;
• increasing civil penalties for employers who contravene WA State employment laws; and
• establishing a fit and proper person test for a union official to obtain a right of entry permit under the IR Act.

The Bill also provides for the following reforms, which will come into effect at a date to be proclaimed:

• a transfer of jurisdiction to the WA Industrial Relations Commission (WAIRC) to hear industrial matters regarding public sector workers; and
• improved regulation of registered industrial agents.

Further details regarding the reforms are outlined below.

Prohibition on sexual harassment in connection with work
Consistent with the amendments to the FW Act that took effect in March 2023, the Bill amends the IR Act to include a prohibition on sexual harassment in connection with work.

An aggrieved person may make an application to the WAIRC for a stop sexual harassment order, and/or refer the matter to the WAIRC for it to deal with the sexual harassment allegation via its conciliation and arbitration powers.

Employers may be vicariously liable for the acts of their employees or agents unless they can prove they took all reasonable steps to prevent the sexual harassment from occurring.

Compensation awarded for a sexual harassment referral is uncapped and may cover:

• loss or injury;
• medical expenses; and
• damages for hurt, humiliation, and stress.

Amendments to the MCE Act
The key amendments to the MCE Act are as follows:

• The casual loading rate for casual employees will be increased from a 20% loading to a 25% loading of the relevant statutory minimum wage.
• The public holidays provisions will be amended to:
  • provide employees with the right to be absent from work on a public holiday with pay, as if they had worked their ordinary hours;
  • permit employers to request an employee to work on a public holiday if the request is reasonable; and
  • allow employees to refuse a request to work if the request is unreasonable or if the refusal is reasonable.Factors relevant to assessing the reasonableness of a request or refusal include whether the employee is entitled to penalty rates or other compensation for working on the public holiday, and the nature of the employer’s business.
• Introducing a new minimum condition enabling employees with at least 12 months’ service to request a flexible working arrangement in certain circumstances, such as where the employee is returning from parental leave, has a disability or is experiencing family and domestic violence.

Increased penalties
The Bill will increase the maximum penalty for breaches under the IR Act from:

• $65,000 for a body corporate ($650,000 for a serious breach) to $93,000 for a body corporate ($930,000 for a serious breach); and
• $13,000 for an individual ($130,000 for a serious breach) to $18,000 for an individual ($180,000 for a serious breach).

This increase ensures that penalty levels remain closely aligned with those in the FW Act.

Objective test for employees
The Bill will also align the IR Act with the recent changes to the FW Act, by introducing an objective test for determining:

• whether a worker is classified as an employee; and
• whether an employee is considered a casual employee.

The amendments address recent High Court decisions that give primacy to the contractual terms when determining the relationship between the parties. The Bill restores the previous common law approach, which focuses on the reality and substance of the working arrangement rather than strict contractual terms.

This objective test will also apply under the MCE Act and the Long Service Leave Act 1958 (WA) for purposes of determining if a worker is an employee.

Transfer of jurisdiction – public sector workers
The Bill will abolish the Public Service Arbitrator and the Public Service Appeal Board and transfer its jurisdiction to the WAIRC. The WAIRC will have the power to deal with a claim from a person alleging a breach of a public sector standard that relates to one or more of the following:

• employee transfers;
• employee performance management;
• employee redeployment;
• termination of employment; and
• grievance resolution.

The WAIRC will be authorised to both conciliate and arbitrate claims alleging breaches of the public sector standards. However, the WAIRC will not have the authority to award compensation to an employee in cases where it determines a standard has been breached.

Increased regulation of industrial agents
The Bill will strengthen the regulation of registered industrial agents by:

• Establishing a registration scheme for industrial agents, to be prescribed by regulations, which includes minimum qualifications and experience requirements.
• Requiring industrial agents to hold and maintain professional indemnity insurance.
• Empowering the Registrar of the Commission to inquire into the conduct of industrial agents.
• Providing the Full Bench of the Commission with the ability to hear and determine whether grounds exist for disciplinary action against an industrial agent. If such grounds exist, the Commission may issue orders, including suspension or cancellation of the agent’s registration.

Key Takeaways
Given that many of the reforms will take effect from 31 January 2025, employers in WA’s state system must quickly get on top of the impending changes.

Affected employers may wish to:

• take proactive measures to prevent sexual harassment, for example by reviewing and updating policies on anti-harassment and by providing training to workers;
• consider whether any policies and/or contracts require updating to reflect the amendments to the MCE Act; and
• be alive to the changes to the way in which the employment relationship is assessed and consider whether legal advice is required in respect of any arrangements with casuals.

Legal advice should be sought before seeking to vary employees’ terms and conditions of employment. Please reach out to a Partner in Kingston Reid’s WA office if you have any questions on how the new laws may affect your business and how you can best prepare.

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

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

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