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.