Topic
205 articles from our Tips & Trends archive.
FWC (click here) found an employee was unfairly dismissed for allegedly refusing mediation at the exact time she was participating in it and has awarded significant compensation.
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Two significant changes are foreshadowed in Victoria for work from home (WFH) and sexual harassment non-disclosure agreements (NDAs) . . . and employers are not happy Jacinta!
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FWC approved a: - 4.75% increase in most Award rates; and - 5.97% increase to the National Minimum Wage (NMW) which takes effect from the first full pay period after 1 July 2026.
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Yes, according to NSWIRC (decision) where it confirmed that poor investigation processes and ill considered alternative duties can themselves breach WHS duties and expose workers to serious psychosocial harm.
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In the first published decision under the Fair Work Act’s new sexual harassment provisions, a café manager has been ordered to pay a young worker $90,000 following a serious incident of workplace sexual harassment. The ruling provides an early indication of how courts will approach remedies under the 2023 reforms, particularly where power imbalances and worker vulnerability are present.
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Existing WHS and workplace laws already require employers to manage the risks posed by artificial intelligence and they cannot outsource responsibility to technology the Federal Government has confirmed, but further regulation targeting AI is likely to occur on a jurisdiction by jurisdiction basis as adoption accelerates, particularly as NSW has already amended its WHS Act to explicitly require employers to manage WHS risks from AI, algorithms and digital platforms.
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No, according to the FWC in Wibmer v Fujifilm Data Management Solutions Pty Ltd, where they found that an employee’s persistent and escalating use of AI generated complaints in response to a resolved bullying issue rendered the employment relationship untenable. Critically FWC recognised that whilst employees are entitled to raise and pursue concerns, an obsessive and unreasonable refusal to accept outcomes — particularly when coupled with dishonesty — can justify dismissal because there is no longer the mutual trust and confidence in the employment relationship.
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From 1 July 2026, employers will be required to pay superannuation with every pay cycle, not quarterly. Super will need to be calculated at 12% of qualifying earnings (a broader base than ordinary time earnings) and paid so it reaches employees’ super funds within seven days of payday. The ATO will monitor compliance in near real time, with stronger enforcement powers.
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No. In Matthew Tran v East Metropolitan Health Service, the WAIRC confirmed that a 2 year absent employee's return to work intentions alone was not enough to amount to foreseeable fitness where the medical evidence points to ongoing incapacity.
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Unions NSW’s Ready, Willing, Unable report (the Report) is a significant warning to all workplaces and a timely reminder to employers that compliance with the Respect@Work obligations requires proactive and preventative management.
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A recent decision of the Full Court of the Federal Court Commissioner of Taxation v Baya Casal [2026] FCAFC 11 (20 February 2026) has sharpened what employers must examine when deciding whether a redundancy payment is a tax-free “genuine redundancy payment” or a taxable employment termination payment (ETP).
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A FWC full bench has upheld (MQT Pty Ltd v Chantelle Tamati [2025] FWCFB 265 (20 November 2025)) a $63,500 compensation order for an employee dismissed after refusing a drug and alcohol test following a four-hour lunch at a pub primarily on the basis that the employer failed to strictly follow its own drug and alcohol policy and did not properly explain why the test was required.
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The Federal Circuit and Family Court has ruled (Mullaney v Qube Ports Pty Ltd [2025] FedCFamC2G 1784 (30 October 2025)) that an employer did not breach anti-discrimination laws when it dismissed an employee who could no longer perform the inherent requirements of his role due to degenerative medical conditions.
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FWC (Mr Luke Wilson (nee Miller) v Services Australia [2025] FWC 3328) recently awarded $33,348.62 plus superannuation to a former employee after finding his resignation amounted to a constructive dismissal. FWC ruled the employer should have given the employee “space” to recover his mental health before treating his resignation as final.
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FWC (Hayley Lord v Millet Hospitality Geelong Pty Ltd [2025] FWC 2740) has criticised a small business for using an email drafted with ChatGPT, to inform a long-serving supervisor of her retrenchment, finding the approach failed to meet “basic standards of decency".
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FWC (Karlene Chandler v Westpac Banking Corporation [2025] (20 October 2025)) has allowed an employee to WFH on a ‘permanent basis’ to care for her children, finding “no question” her role could be performed entirely remotely.
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FWC recently at the Australian Labour and Employment Relations Association national conference revealed it is facing a “massive” and “unsustainable” surge in applications—up 24% over five years, with general protections (GP) dismissal claims alone rising 27%.
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FWC recently in Mr Firas Raghib v Stantec Australia Pty Ltd [2025] FWC 2335 found that a senior HR manager’s fabrication of a text message to undermine a colleague’s complaint amounted to serious misconduct and justified his summary dismissal—even though the employer’s process had procedural flaws.
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The Federal Court recently in Fernandez v Australian Postal Corporation [2025] FCA 1144 found that the Administrative Appeals Tribunal (AAT) denied a psychological injury claimant procedural fairness by failing to properly consider the events he said caused his condition.
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In our recent article we provided an update on the proposed Incident Notification requirements across the harmonised jurisdictions. But for those in the Resources Industry there has already been similar type obligations in existence for some time.
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Yes, according to a recent prosecution of an employer in the NSW Local Court on 19 December 2025. The employer was convicted and fined $188,000 and had an adverse publicity order imposed upon them following the suicide of a worker who had been subjected to four separate psychosocially unsafe performance management ‘work plans’ across a six-month period.
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The Australia Day public holiday falls on Monday, 26 January 2026 and planning on how do deal with roster patterns that require work on this day should nearly be finalized by now.
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ACT Work Health and Safety Commissioner Jacqueline Agius recently emphasised that every employer should assume there is a risk of workplace sexual harassment and must have procedures in place to prevent and manage it.
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FWC recently in Young [2025] FWC 2834 dismissed a bullying claim brought by a public sector employee, finding that the Department acted reasonably in placing him on a three-day work week while he recovered from a previous toxic workplace experience.
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FWC recently in Paper Australia Pty Ltd Trading as Opal Australian Paper v Anthony May [2025] FWCFB 224 confirmed that an employer cannot rely on an enterprise agreement to override an employee’s right to request flexible work under the National Employment Standards (NES).
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NSW District Court recently in SafeWork NSW v Momentum Consulting Group Pty Ltd [2025] NSWDC 400 found that a labour-hire company could not rely on a “mistake-of-fact” defence after one of its workers suffered a catastrophic injury while operating machinery at a host employer’s site.
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FWC recently in Courtney Sewell v dnata Airport Services Pty Limited [2025] FWC 2823 found that serious flaws in dnata’s handling of a sexual harassment complaint—combined with its refusal to adjust rosters – left the employee with no choice but to resign. The employee reported that a male colleague made inappropriate comments about her wearing a hijab and mini skirt to a social event, which made her feel extremely uncomfortable. She followed internal channels to report the incident, but the investigation process quickly began to unravel.
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New notifiable incident requirements that particularly deal with psychosocial incidents have been added to the model WHS Act and Regulations for the harmonised states. It is now up to each harmonised state and territory (ie excludes Vic and WA) to ‘update’ their own WHS Act and Regulations so stay tuned for the operative dates in your areas of operation.
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All businesses experience the pre-Christmas rush. Workplaces seek to ‘clear the decks’ before they ‘deck the halls’ with their family and friends, and this in turn places additional demands on other workplaces. The cycle is unhelpful for all businesses and is likely to contribute to fatigue of workers. Will this year be any different?
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Christmas is a great time of year but unfortunately, work functions can be fertile ground for incidents that lead to not only WHS claims but also: sexual harassment, sex based harassment, hostile work environment, sex discrimination, victimisation (collectively the Respect@Work obligations), plus bullying, adverse action, unfair dismissal and privacy claims as well.
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Even as the world settles into a post-pandemic rhythm, WFH is holding strong in Australia. According to the latest HILDA report, 35% of employees now work from home at least some of the time and 15% do most of their work remotely. For perspective, WFH peaked during the pandemic in 2021 at 38% for any WFH and 23% for most hours. Full-time WFH of five days or more remains under 5% but a flexible hybrid model has clearly become the norm.
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The new Fixed Term Contract Information Statement has been released and will be required to be issued for all new Fixed Term arrangements in addition to the general Fair Work Information Statement from 1 November 2025. It is available on the FWO website*.
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In Fernandez v Australian Postal Corporation [2025] FCA 1144 the Federal Court quashed an Administrative Appeals Tribunal decision that had rejected a postal worker’s psychological injury claim on the basis of "maladaptive personality characteristics".
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In WorkSafe v Indimax Production Pty Ltd, Melbourne Magistrates Court, 24 September 2025 the Court convicted and fined a video production company for failing to implement safeguards against sexual harassment. The employer was prosecuted under s 21(1) of the Occupational Health and Safety Act 2004 (Vic) for failing to maintain a safe workplace and was fined $40,000, while its Director was personally fined $15,000.
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SafeWork NSW recently issued a prohibition notice to the University of Technology Sydney (UTS), ordering it to pause its staff downsizing program due to serious concerns about psychological harm to employees.
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Victoria finally joined the Harmonised WHS States in creating Regulations and a Compliance Code to manage Psychosocial Risks. They will take effect from 1 December 2025.
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Labor senators have recently sided with the Coalition to vote down a Greens amendment to the Government's penalty rates legislation that would require employers to consider requests to work from home for up to two days a week, "if practical" and for employers to only be able to refuse requests "if it would make the performance of the inherent requirements of the role seriously impractical or impossible".
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FWC recently in Mrs Seema Kurup [2025] FWC 921 found that a manager did not bully an employee by providing her a lower annual rating than usual.
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There have been many occasions where employees have secretly recorded workplace conversations, meetings, or counselling sessions, believing it necessary to protect their lawful interests regarding the termination of their employment. However, even though it may seem reasonable for employees to record private conversations to protect their interests, safeguard a third party, or gather evidence for legal proceedings, employers should take steps to guard against this type of behaviour.
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FWC (Applicant (AB2025/40) [2025] FWC 2459 (22 August 2025)) recently dismissed a worker’s "absurd" and "baseless" claims of bullying and micromanagement against a senior WHS professional and ten other employees, demonstrating that employers shouldn’t and don’t have to put up with toxic claims.
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Possibly? The Federal Court recently delivered its much anticipated judgment in what everyone is calling the Woolworths and Coles decision. This decision has already received unprecedented media attention and has broad implications for: offsetting, annualised salaries, record-keeping obligations and the strict requirements for varying Award conditions.
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In Magar v Khan [2025] FCA 874, the Federal Court has, for the first time, considered the scope of sex-based harassment under section 28AA of the Sex Discrimination Act 1984 (Cth).
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Yes. SafeWork NSW recently accepted a $700K+ enforceable WHS Undertaking from an employer, in lieu of prosecution arising out of an electric shock incident with more than half of the costs dedicated to implementing a comprehensive psychosocial risk management process and rolling out a three-tiered safety training program.
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No. The proposed Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025 was recently tabled in Parliament with the intention of protecting penalty rates and overtime rates in Modern Awards only.
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Incivility in the workplace, such as eye-rolling and sarcastic remarks, might seem a ‘one off’ or ‘not worth making a fuss about’ but such behaviours can escalate into genuine psychosocial hazards if left unmanaged.
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No. But it is still a matter that employers will need to show they considered and were unable to reasonably implement. The High Court Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 found that, when considering a ‘genuine redundancy’, FWC can consider, amongst the range of factors, whether there is a genuine redundancy or whether it would have been reasonable to redeploy an employee to a role otherwise performed by a contractor.
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In Paul Collins v Intersystems Australia Pty Ltd [2025] FWC 1976 FWC made it clear that employees who make requests for flexible work arrangements (s 65 FW Act) need to demonstrate a clear and substantiated connection between their circumstances and the requested flexibility and the specific reason for the requested change.
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In (Mr Bertus Moers v The Trustee For Williamson Family Trust [2025] FWC 1344 (14 May 2025)) FWC confirmed that an employer properly dismissed a worker for deliberately failing to comply with a contractual term in their contract which required them to participate in medical examination to determine their FFW.
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The NSW government has released an exposure draft to amend its workers compensation legislation which will in summary provide: • New definition of “psychological injury” • New criteria for establishing an entitlement for compensation for psychological injury • Additional criteria for establishing an entitlement for compensation for psychological injury caused by "sexual harassment", "bullying" or "racial harassment" • Clarification of what constitutes “reasonable management action” and the circumstances in which compensation will not be awarded for psychological injury. • Modernising benefits and compensation thresholds to better reflect the cost of living and community expectations (s 32AA).
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In a previous article we provided an early notification that courts were appearing to be taking a different approach to the usual industrial practice (next pay period), FWO website (7 days) and the FWC’s standard settlement agreement (7-21 days) by requiring all termination payments to be made on the date of termination and not some time after. That trend appears to be continuing following the decision of Jewell v Magnium Australia Pty Ltd (No 2) [2025] FedCFamC2G 676 where the Federal Circuit and Family Court of Australia awarded penalties against the employer due to its failure to comply with statutory obligations to pay termination entitlements to an employee on the final day of employment.
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In (McCabe v UGL Engineering Pty Ltd [2025] FWC 1478 (29 May 2025)) FWC recently found a HSR who unilaterally shut down electrical generators on a major project – affecting first-aid facilities and other key areas of the site – was not unfairly dismissed because they had plenty of other options to appropriately deal with their safety concerns.
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No - according to the NSW Government who in its recent report to address the sustainability of the workers compensation system concluded that employers can expect the premiums to rise by 36% over the next three years to 2027 – 2028.
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No. The FWC increase (if applicable) is payable on the “first full pay period” after 1 July 2025. This means that the FWC increase will be implemented differently for each Employer depending on their usual ‘pay day’.
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It depends on the employment contract/EA. For this reason, the outcome may vary for individuals – so check your documents carefully!
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FWC approved a 3.50% increase in all Award rates and the National Minimum Wage (NMW) which takes effect from the first full pay period after 1 July 2025. The decision will lift the NMW from $24.10 to $24.95 an hour or $915.90 to $948.00 a week based on a 38 hour week.
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Bullying is one of the most overused and misunderstood terms in employment law. Employers and their managers regularly voice concerns that the term has become weaponised. But has it? To what extent does genuine but firm management still have its place in a contemporary workplace?
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Yes. Provided the skills are objectively necessary for the operational requirements of the business.
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Yes or at least they are showing that, with appropriate evidence, FWC won’t tolerate them! In Mitchell Fuller v Madison Branson Lawyers Pty Ltd [2025] FWC 784 (7 April 2025) the FWC found an employee had wrongfully and dishonestly claimed sick days using an online medical certificate and subsequently a statutory declaration so he could attend the AFL’s Gather Round in Adelaide and in doing so was justifiably summarily dismissed.
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The High Court in Elisha v Vision Australia Limited [2024] HCA 50 (11 December 2024) has made it clear that an employee can claim damages for psychiatric injury if an employer breaches its disciplinary procedures incorporated into an employment contract.
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The FWC recently (Samuel Shilson-Josling v Atomic Search Pty Ltd [2024] FWC 3255 (25 October 2024) held that employees are not immune from redundancy while on leave or under flexible working arrangements provided operational issues necessitate it and the redundancy is genuine.
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Possibly - if any of the FWC’s recent decisions indicate a ‘trend’ to be concerned about. Prior to the end of 2024, employers were rightly confident that breaches of their Alcohol and Other Drugs (AOD) Policy provided a valid reason for dismissal and, depending on the seriousness, it was not unfair for an employee to have lost their job. However, a raft of recent FWC decisions appear to have adopted a ‘new approach’ whereby this has been significantly called into question.
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The FWC recently (Mr Adam Rytenskild v Tabcorp Holdings Limited [2024] FWC 3129 (19 November 2024) ruled a CEO’s ‘forced’ resignation as a dismissal, criticising the employer for its calculated and opaque approach, which prioritised supposed corporate governance principles over fair treatment of its employees.
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A recent Australian study (Associations between employees' alcohol consumption, insomnia and HR management strength) has found that strong consensus among management levels in workplace HR practices can significantly reduce stress and insomnia among employees. However, another Australian study (Police leaders' perspectives on their ability to support employee wellbeing in Australia: lack of time, training or support?) also revealed that workplace leaders are struggling to support staff wellbeing due to overwhelming workloads and a lack of time and resources.
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A South Australian Tribunal (Lauren Vercoe v Local Government Association Workers Compensation Scheme [2024] SAET 91 (18 October 2024)) has ruled that a council worker who broke her arm tripping over a pet fence while working from home is entitled to workers' compensation, highlighting employer responsibilities in remote work arrangements.
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The FWC (Fogo v Boeing Aerostructures Australia Pty Limited [2024] FWC 3037 (8 November 2024)) has dismissed a 61-year-old engineer's request to work remotely two days a week, citing no ‘objective and rational connection’ between his age to the need for flexible arrangements.
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Safe Work Australia has released its latest report outlining the key WHS statistics across Australia (click here). These statistics provide a good indicator, consistent with risk management principles, of where ‘more focus’ should be implemented across ‘most’ workplaces.
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Worksafe’s (Vic) annual report provided further confirmation of what a number of WHS commentators have already known – that is, our RTW plans for mental health issues are ineffective, or worse keep, our injured employees ‘injured’.
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The FWC (Application by Wong [2024] FWC 2856 (15 October 2024) has dismissed an employee’s bullying claim against their employer, ruling that while the employer’s conduct may have been unreasonable, it did not constitute bullying.
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FWC Shane Gration v Bendigo Bank [2024] FWC 717 (15 April 2024) has rejected a high performing employee’s request to work solely from home to care for his wife who had a medical condition and school aged child because he failed to provide sufficient and consistent evidence to support his claim that he needed to work 100% from home.
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FWC Nicole-Marree Smith v Bright Life Homes Pty Ltd [2024] FWC 1494 (14 June 2024) has found that an employer’s failure to address inappropriate conduct by a teenage apprentice led to escalating behaviour that threatened an older employee's safety. FWC criticised the employer for inadequate training and poor leadership, which allowed the apprentice’s misconduct to continue unchecked.
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Whilst the new SJSP laws actually commenced on 15 December 2023 orders made under the new laws were unable to take effect until 1 November 2024. Momentum is starting to build for these types of applications.
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Minimum pay rates for introductory classification or entry-level employees under some Modern Awards may go up on the first full pay period on or after: 1 January 2025 1 April 2025 for employees under the Horticulture Award and Pastoral Award.
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The Federal Court (Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161 (12 December 2024) has rejected an employee’s claim that the employer unfairly ended his employment by not renewing his maximum term contract.
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On 2 October 2024 industrial manslaughter became a criminal offence under Tasmania’s WHS which now means it applies in all states and territories.
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Christmas is a great time of year but unfortunately, work functions can be fertile ground for incidents that lead to not only WHS claims but also: sexual harassment, sex based harassment, hostile work environment, sex discrimination, victimisation (collectively the Respect@Work obligations), plus bullying, adverse action, unfair dismissal, and privacy claims as well.
Read more
All businesses experience the pre-Christmas rush. Workplaces seek to ‘clear the decks’ before they ‘deck the halls’ with their family and friends, and this in turn places additional demands on other workplaces. The cycle is unhelpful for all businesses and is likely to contribute to fatigue of workers. Will this year be any different?
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Each case will be different, depending on an organisational risk profile, but recent commentary from Safe Work South Australia’s Principal Inspector of Organisational Psychology, Sam Atkins gave some good ‘hints’ that PCBUs can apply to increase the likelihood of compliance. This advice comes following a recent prosecution of a WA prison department that was handed a record-shattering $900,000 workplace health and safety fine in 2022, could receive another safety fine of up to $3.5 million, after becoming the first duty holder to be charged with failing to attempt to control psychosocial hazards under Western Australia's WHS laws.
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A company director was awarded $238,000 in costs (click here) following the WHS Regulator’s failed attempt to prosecute him for due diligence offences that followed after a male customer died and his wife was severely injured in a zip line accident in Queensland.
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Two recent Federal court decisions have found that in applying the NES termination payments must be made on the date of termination
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Despite recent commentary indicating other international jurisdictions are considering ‘outlawing’ restraints of trade a recent Federal Court of Australia decision (click here) enforced a 12-month restraint period against a manager and required him to pay $500,000 damages to his former employer after soliciting 45 clients to a rival competitor.
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An employer has been fined $400,000 in the Perth Magistrates Court after a contract worker was injured performing a task that wasn't covered in his safety induction and which the workplace supervisor hadn't been trained on.
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You would be aware of the recent changes to casual employment including the introduction of an ‘employee choice’ pathway for conversion to permanent employment.
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The Safety Regulator has charged a Director and his business with recklessly endangering a fatigued delivery driver who was killed in a car accident after 12 hours into a shift delivering goods to various locations.
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From 26 August 2024 there will be new definitions and criteria for determining whether a worker is an employee or independent contractor under the Fair Work Act.
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FWC recently provided an updated draft statement on the right to disconnect (click here). Stakeholders have until 1 August 2024 to provide submissions.
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Possibly. It depends on who you ask! If you are a union you’ll love them. Employers on the other hand have expressed significant reservations.
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FWC recently (decision click here) ordered compensation for a failure in consultation after the employer told the employee they were redundant months after deciding to restructure their team.
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FWC (click here) recently refused to grant stop-bullying orders against a manager who allegedly bullied a worker for about 7 months over MS Teams/Skype by questioning in writing the: • number of calls they responded to • breaks taken • reasons for working from home
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The FWC increase (if applicable) is payable on the “first full pay period” after 1 July 2024. This means that the FWC increase will be implemented differently for each Employer depending on their usual ‘pay day’.
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It depends on the employment contract/EA. For this reason, every individual might have a different outcome – so check your contracts!
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FWC approved a 3.75% increase in all Award rates and the National Minimum Wage (NMW).
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FWC recently put workplaces on notice (John Tamaliunas v Alcoa of Australia Limited [2024] FWC 779) that there was now both a higher legal and community expectation regarding sexual harassment in throwing out an unfair dismissal claim of a worker with nearly 20 years service who groped a female colleague.
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Employers take heed. The new head of SafeWork Australia, Marie Boland, in recently releasing the latest SWA report into psychosocial safety, warned employers that they need to take greater efforts into managing escalating mental health compensation claims.
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The Federal Court recently (Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162) held that a critical and insensitive manager who routinely swore at his direct reports in a mis-guided attempt to motivate them warranted summary dismissal.
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According to a recent study of 44 reports on major accidents in Australia, Canada, New Zealand, UK and the US – Yes
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A recent WA government study into the mining sector found burnout, bullying and sexual harassment have remained high despite recent initiatives and legislative change.
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A recent NSW district court decision (SafeWork NSW v Marist Youth Care Limited [2024] NSWDC 74) has imposed fines and costs totalling $440,000 after employees were subject to sexualised and aggressive behaviour in a community-based residential home program.
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A recent FWC case (Application by Josh Whiteford [2024] FWC 552) has once again endorsed the position that managers carrying out legitimate and genuine performance management techniques including issuing a warning to poor performers is not bullying.
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Possibly. As a general rule the higher up in the ‘foodchain’ you are in an organisation the more likely the expectation you meet WHS Officer duties. Unhelpfully this question is really only able to be determined on a case-by-case basis but thankfully there are now some recent cases which have provided some guidance in this area.
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The Full Federal Court (Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45) has recently found that employers have an obligation to assess whether employees in a redundancy situation could replace already engaged contractors (not other employees) before making them redundant.
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FWC recently found (Charles Gregory Gregory v Maxxia Pty Ltd [2023] FWC 2768) an advisor with an inflammatory bowel disease (IBD) and custody pressures was unable to utilise the flexible work provisions to resist his employers request to return to the office 40% of the time in accordance with its Hybrid Work Policy.
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The traffic accident on Melbourne’s Eastern Freeway that resulted in the deaths of four police officers has resulted in: • the national operations manager - 3 years' jail • the driver - 14.5 years jail • company $2.31 M fine
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The FWC (Momirovski, Douglas, Serafini, Naumcevski and Egan [2023] FWC 3299) has recently refused to make stop bullying orders against an ‘exasperated manager’ who allegedly yelled at workers when managing them to perform their duties.
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The Closing Loopholes legislation sought to provide further clarity to the vexed issue concerning ‘regular’ Casuals. It hasn’t.
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2023 marked the first real year of significant IR changes since the introduction of the Fair Work Act. The Labor government has certainly indicated (and already implemented) a far more interventionist IR approach than we have seen for some time.
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Bullying has tended to have taken a bit of a ‘back seat’ following all the recent publicity around the Respect@Work changes. Nonetheless, it is a recognised psychosocial hazard and needs ongoing attention. Safety regulators have demonstrated that they will intervene from worker level (e.g. other employees, supervisors etc) right up to officer level (e.g. senior managers, company directors etc).
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All businesses experience the pre-Christmas rush. Workplaces seek to ‘clear the decks’ before they ‘deck the halls’ with their family and friends, and this in turn places additional demands on other workplaces. The cycle is unhelpful for all businesses and is likely to contribute to fatigue of workers. The post COVID-19 work spike has been well documented. For a lot of businesses, there has been no respite
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For most businesses, the restrictions on the use of fixed and maximum term contracts have already become operative as of 6 December 2023
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FWC has confirmed the long held understanding that failing to meet reasonable KPIs will be a valid reason for dismissal but unreasonable KPIs will be unfair.
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Christmas is a great time of year but unfortunately, work functions can be fertile ground for incidents that lead to not only WHS claims but also: sexual harassment, sex based harassment, hostile work environment, sex discrimination, victimisation (collectively the Respect@Work obligations), plus bullying, adverse action, unfair dismissal, and privacy claims as well. With the introduction of the new positive duty for the Respect@Work obligations, employers now have multiple proactive and preventative obligations to ensure that Christmas functions are safe for their employees and others who attend (eg clients, customers, food and beverage staff etc).
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Last week the High Court confirmed that employees must be given a choice as to whether they will agree or refuse to work on a public holiday. This now settles the law in this area.
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The Melbourne Magistrate’s Court recently fined Court Services Victoria nearly $380,000 as a result of a toxic workplace culture that it considered had contributed to a Coroner’s Court lawyer’s suicide.
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A resounding “Yes” according to FWC (Thien Huy Xuan Dang v Coca-Cola Europacific Partners Australia Pty Ltd (U2023/1175)) after the employer was found to have fairly dismissed a worker who regularly and deliberately set their cruise control above the speed limit.
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Unsafe job demands, according to Comcare’s National Regulatory Program Director, are the most common psychosocial hazards in workplaces at the moment.
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FWC recently upheld (Sheldon Haigh v Platinum Blasting Services Pty Ltd [2023] FWC 2465) the dismissal of an employee for failing, as per the employer’s policy, to disclose his use of prescription medical marijuana even though he disclosed it during a testing process and passed the test.
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We have all seen the increasing trend of high profile leaders departing their jobs stating they need to “take a break”, “spend more time with their family” or encouragingly citing “burnout” as the reason. But every employer should know that “burnout” is not just a trend for leaders. It can affect anyone regardless of position, and is a psychosocial hazard that needs to be addressed in most workplaces.
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Two recent cases have shown a willingness for FWC to uphold an employer’s right to dismiss when an employee fails to comply with company WFH policies and procedures.
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The Australian Human Rights Commission (AHRC) recently published its Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) to demonstrate to Employers how to practically comply with its new obligations.
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Both employers and employees may not be entirely happy with the decision – neither got what they wanted - but it is likely that FWC will consider they reached an appropriate ‘middle ground’ in increasing the minimum wages in all modern awards by 5.75% from the first full pay period commencing on or after 1 July 2023.
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It depends on who you ask. Most Employer groups have cautioned that the Secure Jobs Act's single-interest bargaining provisions will give unions much greater power and put all employers at risk of being captured by the regime. The loss of control of specific terms for an enterprise agreement is a legitimate concern because it has the capacity to reduce an employer’s competitive advantages.
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In rejecting an employee’s claim for psychological injury from a reasonable performance assessment process, a recent Administrative Appeals Tribunal decision (Tierney and Comcare (Compensation) [2023] AATA 674 (5 April 2023) has highlighted that managing employee performance, when conducted appropriately, will provide Employers a solid defence to workers compensation claims.
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Employers know the high costs of recruitment and retention. “Quiet quitting” and the “War for Talent” remain consistent commentary in HR circles. But it seems that a Dortmund University study in Germany has once again confirmed what most good HR managers already know - employees leave managers not organisations - by finding a link between destructive leadership and high levels of early retirement and extended sick leave.
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Employers currently covered by a pre-2010 workplace agreement (Zombie Agreement) are required to notify their employees by 6 June 2023 that the Zombie Agreement (being the source of their minimum entitlements) will be terminated by 7 December 2023.
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Just like the more general obligation to take positive steps to address psychosocial risks a number of jurisdictions have ‘followed suit’ by applying a positive duty in regard to sexual harassment. We expect this approach will be mirrored across all Australian jurisdictions and encourage employers to act now and commence processes and practices which proactively address this inevitable change.
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Australia is once again very close to achieving ‘enhanced’ obligations to tackle psychosocial safety with specific regulations being recently introduced throughout the various jurisdictions. Whilst strictly speaking, there have always been obligations to address psychosocial safety, these ‘clarifiers’ pave the way for more overt practical implementation. Employers can anticipate a heightened compliance environment and expectations from their workforce for improved outcomes at the ‘coalface’.
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Recent action by the Australian Securities and Investments Commission (ASIC) has made it clear that it is serious about Whistleblower compliance and that Employers need to keep on top of its compliance actions.
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Hot on the heels of the recent changes to Australia’s pay secrecy laws, employers with 100 or more employees may soon be obligated to publicly share their gender pay gap information.
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If your business is in the private sector and employs over 100 employees, it’s well and truly time to get ready for your mandatory gender pay gap reporting obligations (if you haven’t already).
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New laws prohibiting employers from including information on pay slips about paid family and domestic violence leave (PFDVL) now apply, effective from 4 February 2023.
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The right to disconnect (RTD) was recently introduced as part of the Closing Loopholes No2 legislation.
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The short answer is yes. The NSW Industrial Relations Commission recently confirmed that it’s up to Employers to determine what steps are reasonably practicable to reduce the known risks associated with COVID-19.(available here)
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In the wake of the 14 October 2022 scrapping of the mandatory COVID-19 isolation periods, employers and employees alike are being urged by public health bodies to continue to appropriately manage COVID-19 return to work timeframes.
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Yes. In Bell v Nexus Primary Health, the Employer was held liable for its Employee’s sustained psychological injury and ordered to pay $1.24M in damages after the Employee (a family outreach worker) was attacked by the husband of a previously assessed high risk client while on the way to work. This attack occurred when she was exiting her car outside her doctor’s office which resulted in the Employee suffering from PTSD and rendering her unable to work. The Employee was also subjected to further threats and even had bricks thrown through her house window.
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In a recent ruling, the NSW District Court has regretfully made comment that it seems the general deterrence message of PCBU penalties for safety breaches is “not getting through to employers who require their workers to work at height – inherently dangerous work.”
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A recent South Australian Employment Tribunal (SAET) decision which found that a worker’s alcohol-related injury sustained at a work Christmas function occurred in the course of her employment, is a timely reminder for all employers heading into the silly season.
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The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022 passed both houses of Federal parliament on 27 October 2022. The new legislation amends the NES to provide full time, part time and casual employees ten days paid family and domestic violence leave (FDVL) in a 12 month period.
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Yes. Whilst the pressure has been on business to upgrade nominally expired enterprise agreements and particularly those pre-Fair Work agreements (Zombie Agreements) since FWC has taken more interventionist approach regarding their termination, the new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill) will only further compound such interventionist approaches.
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It seems much further than the previous Liberal government, if the new Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill) is anything to go by.
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Yes, despite full implications being at this stage unknown, businesses should keep an eye on the passage of the SJSP legislation as industry groups have warned of the likelihood of added wage pressures and skill shortages it will create.
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The new Labor government has made good on its promise to implement all of Kate Jenkins’ 55 Respect@Work recommendations by introducing a Bill to Parliament. The Bill is not yet law but its passage is unlikely to be significantly amended.
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Overpayment to employees is just as common as underpayment. While overpayment itself is not unlawful, rectifying overpayments by clawing back this amount can be a tricky process and if not done correctly, can be unlawful.
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Yes, but only if there are reasonable grounds to do so.
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Yes, but only if the dismissal is not harsh, unjust or unreasonable.
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Employers and employees both have Work Health and Safety (WHS) obligations which include preventing sick individuals (including employers and leaders) from attending the workplace if they are unwell.
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In line with the rapid growth in awareness (and claims) relating to psychosocial health at work, Safe Work Australia has published its highly anticipated model WHS Code of Practice, Managing psychosocial hazards at work (Code) (available here). You may remember our previous article on the first Code of Practice on managing psychosocial hazards (available here).
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During the initial stages of COVID-19, employers struggled with the new territory of an enforced WFH workforce and an increased reliance on IT. Then workplaces gradually adjusted and improvements were genuinely made. Now as we hopefully near the tail end of COVID-19 it appears, according to a recent University of South Australia study, that workplaces still have some further work to do as the full effects of WFH and IT on work-life conflict, employee mental and physical wellbeing, and work engagement become better identified. Whilst some employees have thrived during the new arrangements, others have either continually failed to adjust or now have become ‘fatigued’ by the changes as the ‘novelty’ of the new arrangements wears off.
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Many employers will notice an increase in Safety Regulators focusing their WHS campaigns on Sexual Harassment, Gendered Violence and Sex Based Harassment this year following on from the Jenkins Report, the Federal Government’s commitment to implement all recommendations and a clearer recognition that all such issues are serious hazards that can cause physical and psychological harm in the workplace.
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A new bill was introduced to the House of Representatives which seeks to replace the current 5 day unpaid NES FDV leave entitlement with a 10 day paid leave each 12 months for all employees including part-time and casual employees. This entitlement will not accumulate from year-to-year.
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Now more than ever it is important for employers to ensure that their workplaces are safe from not just physical but psychological harm as well. Part of this includes monitoring communication between staff members and reminding employees that ‘venting’ frustration to another colleague is not a ‘free pass’ to make inappropriate and denigrating comments about other employees – even to their managers.
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The High Court recently handed down its decision in Kozarov v Victoria [2022] HCA 12, in which it made clear that employers have a duty to safeguard their employees from work-related mental harm - even in circumstances where there is a vicarious trauma policy in place.
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The damages awarded to applicant’s who successfully establish sexual harassment in the workplace are substantial, and rapidly rising.
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Mining giant, Rio Tinto, has been urged by FWC to conduct a ‘proper’ investigation into what appeared to FWC to be the sexual harassment of a former employee after a wave of sexual harassment and assault allegations coming to the forefront at remote mining sites.
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As we have discussed in previous Edge updates, sexual harassment claims are becoming increasingly common in workplaces across Australia.
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In a recent Work Health and Safety (WHS) prosecution, a director (of Illawarra Enterprises (QLD) Pty Ltd) was sentenced to 4 months jail wholly suspended for a period of 12 months after a narrow earthen pathway, which a worker was walking on, gave way causing the worker to fall through an unbarricaded 1.9-metre deep trench. The worker was impaled on a steel bar and suffered severe injuries to his groin and stomach.
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Following on from our earlier article on the Labor government’s IR agenda – the party have also, at their most recent National Platform, developed and adopted a series of WHS policies that could see the future of WHS laws changing as a result of the 2022 Federal Election.
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Whether the new Labor government will govern in majority or some sort of minority supported by the minor parties remains unknown at this stage. But recent press has shown at least a willingness for Prime Minister Albanese to push for the following initiatives:
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On Monday, FWC full bench handed down its review decision that all modern awards should be amended to provide employees with 10 days of paid family and domestic violence (FDV) leave per year and is calling for participants to formulate a draft model term.
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No employer looks forward to a redundancy process – but it is crucial to take the time to step through the process properly, without taking any administrative ‘shortcuts’ to get the process over and done with. Shortcuts and poor communication are often what leads to the risk of claims.
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The High Income Threshold (HIT), adjusted each financial year, currently sits at $158,500.
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In a recent Fair Work Commission (FWC) decision (Sydney Trains v Andrew Bobrenitsky), a full bench unanimously overturned a previous ruling which found that an employee’s out of hours conduct (drink driving charge) did not constitute a valid reason for termination.
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Peak union body the ACTU has indicated it will pursue a 5% increase across all award rates in this year’s minimum wage review, citing the need to compensate workers for cost of living pressures.
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A lack of public health orders is not an excuse for employers to drop the ball on keeping workplaces COVID-safe – that’s the latest message from the ACTU and a view shared by Safe Work Australia (SWA), demonstrating that unions and regulatory bodies are mostly aligned on the future of WHS relating to COVID-19 as we emerge from the pandemic.
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Yes, but only in limited circumstances.
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A South Australian tribunal decision provides a caution to employers who provide non-work related benefits to their employees while on work trips.
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Unfortunately, the answer to this is not what most employers had hoped for and is still a little unclear.
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Some commentators are claiming that the High Court’s recent decisions relating to worker classification have placed primacy on the terms of a contract, to the exclusion of the practical realities of the work.
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Most likely yes, if you have an objective reason for requesting the evidence.
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Most likely yes, so long as the refusal is based on valid business grounds. For workplaces that operate largely in an office setting, working from home (WFH) has become the primary solution in enabling employees to continue their work during a COVID-19 outbreak.
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In a recent Fair Work Commission (FWC) decision (Steve Petkovski v M J Luff Pty Ltd T/A Border Express [2021] FWC 5936), the FWC found that a termination letter was sent to an employee’s defunct email address did not constitute a reasonable means of communicating the dismissal. Instead, the dismissal was effective 5 days later when the termination letter was received by registered post.
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In late 2021, many Public Health Directions requiring vaccination for certain workers and industries came into effect. In the New Year, many employers have been forced to deal with a small number of employees who have refused to comply with the vaccine direction.
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Simply put, the Respondent employee will generally need to know the identity of a Complainant in order to adequately respond to an allegation.
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Knowing an employee’s vaccination status has been an important tool in managing the risks of COVID-19 in the workplace. However, there are some important privacy obligations placed on employers who hold a record of their employee’s vaccination status.
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Yes –but dismissal must not be harsh, unjust or unreasonable.
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Most likely, yes. While traditional Personal / Carer’s Leave is available to employees who have tested positive to COVID-19, there are many pandemic related reasons why workers may be unable to attend work which don’t fit comfortably with traditional leave entitlements. Mandatory quarantine periods for close contacts of positive cases remain common across Australia but unless employees are able to work from home, they may be forced to access Annual or Long Service leave in order to be paid for the period of isolation.
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Employers are expected to be increasingly vigilant in managing COVID related risks in the workplace particularly when managing employees returning from an absence likely to involve COVID or at least a risk of it. But with the ever-changing public health regulatory landscape we understand that this has become difficult and places enormous strain on HR teams.
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Most likely “Yes”. COVID-19 testing generally provides employer with the most valuable information in assisting employees to determine their level of risk to the workplace. However, long queues for traditional PCR tests, as well as changing eligibility criteria for them, has left a lot of the heavy lifting to Rapid Antigen Tests (RATs). Although less reliable than PCR tests, they are in our opinion an objective and safe way for workplaces to manage the risk of COVID-19. The prevalence of RATs is only likely to increase as availably issues are addressed across Australia.
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We have previously discussed ways in which employers can navigate the emerging area of Public Health Directions / Orders to vaccinate, as well as implementing your own mandatory vaccination policies as a lawful and reasonable direction. But what if you aren’t subject to a Public Health Direction / Order and don’t have a mandatory vaccination policy of your own, but your business performs work for organisations that do – particularly for site entry?
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The borders have now fully opened up and we are now in a new stage of dealing with COVID –unfortunately just in time for the highly contagious Omicron variant to arrive and increase infection rates.
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FWC Full Bench Speaks A 5 member FWC Full Bench on Friday 3 December 2021 handed down its eagerly anticipated decision finding that BHP’s Mt Arthur mine’s Site Access Requirements for mandatory COVID-19 vaccinations was NOT reasonable because it had failed to comply with the WHS obligations to consult. You can find a copy of the full decision here (http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWCFB//2021/6059.html)
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The short answer: yes –but it might look a bit different.
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We previously discussed how to deal with early-stage non-compliance with Public Health Directions/ Orders or an Employer’s policy.
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The activity around COVID-19 vaccinations has not abated. The trend (at this stage) is indicating an increasing number of businesses continuing to push ahead with mandatory compliance via their own policy.
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Tasmanian businesses are currently dealing with a Public Health Direction compliance deadline of 21 November 2021.
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The Tasmanian Public Health Direction of 3 November 2021 (Direction) updated the earlier direction, which provided for mandatory vaccinations for medical or health facilities and services and now extends the mandatory vaccinations to those who provide high intensity supports to NDIS participants.
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Employers in the Horticulture Industry have been scathing in their opposition to a recent FWC Full Bench decision which (pending a last minute appeal) looks likely to mean the practical end of the current piecework system.
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There continues to be a flurry of activity around COVID-19 vaccinations. The trend appears to focus on businesses creating their own clarity by avoiding the complexity of competing options and compliance with public health orders by mandating vaccinations and the provision of vaccination status. The application of the mandate has been mixed. It ranges from targeted for certain areas or a comprehensive workplace application dependent on their individual risk assessments.
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There has been a significant amount of recent activity regarding the compulsory vaccination debate and unfortunately the cumulative effect has been that certainty has still not been achieved.
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The recent Victoria Court of Appeal decision ofInfosys Technologies Limited v State of Victoria[2021] VSCA 219 has helpfully clarified that an employee's overseas service does not count as service
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The High Court has given an anti-climactic endorsement of the Federal Government’s ‘fixing’ of the casual definition issue by overturning the Full Federal Court decision in Rossato.
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The landmark NSW Court of Appeal decision of Vitality Works v Yelda has been flooding legal commentary particularly around the topics of:
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New wage theft laws will commence in Victoria on 1 July 2021 exposing employers to fines of nearly $1M for businesses, and nearly $200K or up to 10 years jail for individuals for:
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As of 28 May 2021, New South Wales became the first jurisdiction in Australia to introduce the Code of Practice: Managing Psychosocial Hazards at Work.
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The budget will result in FWO hiring at least 30 more employees in the 2021-22 financial year to beef-up its compliance handling processes.
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Following on from our earlier advice regarding the new casual conversion laws, we provide the following reminder for those currently undertaking workforce planning.
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The following headlines arising out of 3 recent WHS prosecutions should worry any ‘officer’
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The recent decision of Victorian Ambulance Union Incorporated v Health Select Pty Ltd t/a Health Select [2021] FWC 1434, 31 March 2021 in which the parties were ordered under the good faith bargaining (GFB) provisions back to the bargaining table has been welcomed by unions and criticised by employers.
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For employers who have already kept up with contemporary policies and training, the proposed amendments to the Fair Work Act and Regulations to:
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The short answer is still “no”.
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Whilst there is little doubt that JobKeeperhas done an excellent job at providing income support to business in a very short period of time –it has not unexpectedly created lots of uncertainty as to its practical application for a variety of employee entitlements.
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In a welcome relief for employers, the High Court earlier today confirmed that the NES reference to ’10 days’ of leave means the ordinary hours that an employee would work over a two week period. In doing so, it rejected the Federal Court’s working day construction which it described as creating ‘absurd’ and ‘unfair results’.
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Finally, some positive news. COVID-19 restrictions are planned to contingently ‘ease’over the next few months.
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Many ofyou have been asking whether you are able to waive upcoming pay increases provided in yourEAor make other changes to your EAto assist you during the COVID-19 pandemic.
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One of the options to respond to the impact of COVID-19 on work availability is for employees to utilise accrued leave entitlements. This is a good option especially where it is done by agreement.
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