We are approaching the end of the year, but there is still no shortage of news! In this fortnight’s edition of the KHQ Workplace Watch:
- Federal Parliament has passed amendments to the Privacy Act, and a Senate Select Committee issued a report on Artificial Intelligence which has implications for workplaces, amongst other things.
- Safe Work Australia has developed materials to assist employers with migrant and multicultural workers.
- The Fair Work Commission has concluded its review of the C14 & C13 rates which impacts 47 modern awards and has issued further statements in the gender-based undervaluation awards review.
We also cover a number of cases from the Fair Work Commission including an application for a single interest employer authorisation, a successful application to suspend protected industrial action, and recent Full Bench decisions on preventing multiple actions and the ‘fairly chosen’ requirement in enterprise agreements.
LAW REFORM
Amendments to Australia’s privacy laws
The Australian Parliament passed the Privacy and Other Legislation Amendment Bill 2024 on 29 November 2024, which amends the Privacy Act 1988 (Cth) in what the Office of the Australian Information Commissioner (OAIC) described as a significant step forward in advancing privacy protections.
These major amendments provide expanded enforcement and investigation powers to the OAIC and impose greater obligations on organisations regulated by the Privacy Act. Some of the key reforms include:
- A statutory tort for serious invasions of privacy, which creates a cause of action for individuals whose privacy has been invaded (until now an aggrieved individual could only make a complaint to the OAIC). Individuals, including employees, will have the power to seek injunctive relief to prevent their privacy from being invaded and damages (including exemplary or punitive damages to a cap of $478,550 or the maximum that may be awarded at law).
- The OAIC’s enforcement and investigation powers have been increased. The OAIC may now investigate breaches of the Privacy Act, with the amendments including new tiers of civil penalties and the ability to issue infringement notices of 200 penalty units ($66,000) for each contravention.
- Courts may now award a new penalty for the interference with privacy of individuals. The penalty of up to 2,000 penalty units ($660,000) will supplement the existing penalty for serious interference with the privacy of an individual.
Information on the Bill including the explanatory memorandum can be found here and the OAIC media release can be found here.
Queensland HSR rights removed before commencement
Health and Safety Representatives and Work Health and Safety entry permit holders were due to receive new powers on 1 January 2025 to permit the taking of videos, photos, measurements and tests of risks, hazards and suspected contraventions at workplaces.
Those rights, implemented through the Work Health and Safety and Other Legislation Amendment Act 2024 (WHS Act) and the Electrical Safety and Other Legislation Amendment Act 2024 (ES Act) have now been repealed and amended by the new Queensland government after the Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Amendment Act 2024 was passed on 28 November 2024 and accented to on 29 November 2024.
The explanatory document explains that the revised powers will minimise the regulatory burden for employers and minimise complexity for industry and workers, stating that the amendments:
- omit recently introduced provisions to allow WHS entry permit holders and health and safety representatives to take photos, videos, measurements and conduct tests before these provisions come into effect on 1 January 2025;
- reintroduce the requirement for WHS entry permit holders to provide at least 24 hours’ notice before entering a workplace to investigate a suspected contravention of the WHS Act or ES Act, except in circumstances where there is an immediate or imminent risk to a worker’s health and safety; and
- clarify that health and safety representatives can issue cease work notices to workers and not to employers.
A copy of the act and explanatory note are available here.
Dr Rod Harrison appointed to National Construction and Industry Forum
The Minister for Employment and Workplace Relations, Senator Murray Watt, announced that Dr Rod Harrison has been engaged to work with National Construction and Industry Forum members (representing employers and unions) to develop a blueprint for the building and construction industry.
The Minister’s announcement can be read here.
Senate Select Committee tables AI report
The Senate Select Committee on Adopting Artificial Intelligence (AI) tabled its final report on 26 November 2024. The Committee inquired into the opportunities and impacts arising out of the update of AI technologies in Australia.
Of the 13 recommendations, those most applicable to workplace relations and safety are:
- Recommendation 5: That the Australian Government ensure that the final definition of high-risk AI clearly includes the use of AI that impacts on the rights of people at work, regardless of whether a principles-based or list-based approach to the definition is adopted.
- Recommendation 6: That the Australian Government extend and apply the existing work health and safety legislative framework to the workplace risks posed by the adoption of AI.
- Recommendation 7: That the Australian Government ensure that workers, worker organisations, employers and employer organisations are thoroughly consulted on the need for, and best approach to, further regulatory responses to address the impact of AI on work and workplaces.
Recommendation 6 anticipates a regulatory response to address a range of issues (including excessive surveillance) but noted the appropriate regulatory response as outside the scope of the inquiry. The Committee’s view on the workplace impacts of AI after considering submissions included concerns about “(…) evidence regarding the impacts of AI on workers’ rights and working conditions, particularly where AI systems are used for workforce planning, management and surveillance in the workplace.” (see [4.158]).
The dissenting report, prepared by Coalition members of the Committee only supported Recommendation 6 on the basis that ‘workplace risks’ be limited to legitimate risks, taking issue with the “overly liberal” description of workplace risks by several submitters to the inquiry.
The Committee also noted that the House Standing Committee on Employment, Education and Training’s Inquiry into the Digital Transformation of Workplaces was considering similar issues. The combination of the Senate Committee’s final report and the outcome of the House Standing Committee’s report as well as the amendments to the Privacy Act 1988 (Cth) (see above) and the potential for further privacy reforms will likely result in significant legislative upheaval on workplace surveillance in the coming year(s).
The final report, a dissenting report, additional comments and documents are available here.
Increased powers proposed for Commonwealth workplaces
The Federal Government introduced the Commonwealth Workplace Protection Orders Bill 2024 on 27 November 2024. The explanatory memorandum states that the Bill will provide legal protections for Commonwealth workplaces and workers and deter acts of violence and other harmful behaviours by members of the public. The definitions of “Commonwealth worker” will include contractors and subcontractors, and “Commonwealth workplace” includes any place where work is carried out by a Commonwealth worker.
The Bill enables an authorised person of a Commonwealth entity to apply to a state or territory Magistrates or Local court (as applicable), Federal Court or the Federal Circuit and Family Court of Australia for a workplace protection order (WPO) on behalf of a Commonwealth worker or workplace against a person who has engaged in personal violence against a Commonwealth worker or workplace.
The WPO may contain any conditions or prohibitions that the Court thinks necessary to protect the safety of the Commonwealth worker or individuals in the workplace including restrictions on an individual’s access to the workplace or their contact with an individual worker or class of Commonwealth workers.
The draft Bill and Explanatory Memorandum may be viewed here.
Regulatory Updates
Safe Work Australia publications for migrant and multicultural workers
Safe Work Australia has developed a worker information sheet, Work health and safety in Australia, which is available in 11 languages and provides an overview of work health and safety laws, including employer duties, worker rights, information on hazards and what to do if a worker is injured at work.
A fact sheet for employers has also been developed to assist employers on communicating with migrant and multicultural workers about work health and safety.
The information sheet, fact sheet and a case study are available here.
FAIR WORK COMMISSION UPDATES
Full Bench concludes review of C14 & C13 rates
The Full Bench of the Fair Work Commission has concluded the review of C14 and C13 rates in 47 awards and has published the final determination for those awards.
C14 and C13 are the lowest and second-lowest classification and pay levels in the Manufacturing and Associated Industries and Occupations Award 2020, and most federal awards have aligned their equivalent classifications to that award since the National Wage Case August 1989. The purpose of the review was to amend the awards where necessary to ensure that the C14 classification was an introductory/transitory classification and that the C13 was the lowest ongoing classification.
See Review of C14 and C13 rates in modern awards [2024] FWCFB 438, and the major case page (which also has all 47 determinations) which is available here.
Statements issued in gender-based undervaluation awards review
The Full Bench of the Fair Work Commission has issued a statement in the Gender undervaluation – priority awards review major case publishing the second tranche of data from the ABS employee earnings and hours survey requested by the Australian Council of Trade Unions (ACTU) on 4 October 2024.
The statement also refers to and attaches a report prepared by the Jumbunna Institute for Indigenous Education and Research at University of Technology Sydney Business School which was engaged by the Commission to conduct additional research in respect of the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020.
A copy of the statement is available here.
The President of the Fair Work Commission, Justice Hatcher, also issued two further statements:
- The first was in response to a joint note from the ANMF, HSU and UWU in respect of the methodology used to calculate the wage rates in the determination for the Aged Care Award 2010. A copy of that statement is available here.
- The second was in respect of the timetable for the hearing of the matters in December 2024. A copy of that statement is available here.
The major case page is here.
Statement issued re Amusement, Events and Recreation Award 2020
The Full Bench of the Fair Work Commission has issued a Statement regarding the variation of the Amusement, Events and Recreation Award 2020 at the Commission’s own initiative.
The Statement confirms that the scope of the matters to be considered are:
- changes to the classification structure at Schedule A of the Amusement Award to more clearly identify the roles of ‘arts workers’;
- changing the title and terminology of the Amusement Award to address confusion as to the Award’s application and to explicitly recognise art as work.
The Statement timetables the matter to a hearing in April 2025, with materials first due to be filed by 7 March 2025.
A copy of the Statement is available here and the variation case page is here.
Case updates
Full Bench grants application for single interest employer authorisation
The Full Bench of the Fair Work Commission has granted an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU) to bargain for a multi-enterprise agreement to cover two local councils, Central Goldfields Shire Council and Ararat Rural City Council.
The application was only opposed by Goldfields Council on the grounds that they had agreed in writing to bargain for a proposed single-enterprise agreement for the purposes of s. 249(1D)(b) of the Fair Work Act 2009 with the Australian Nurses and Midwives’ Federation (ANMF) and that it was contrary to the public interest to make the authorisation.
This was the first application for a single interest employer authorisation that raised the issue as to whether a union and employer had agreed to bargain for a proposed single-enterprise agreement within the meaning of s 249(1B)(e) and (1D)(b) of the Act – a statutory bar to an authorisation being granted.
The Full Bench was satisfied that the requirements of the Act were met and made the authorisation sought by the ASU.
In respect of the contention that the Goldfields Council had agreed to bargain with the ANMF, the Full Bench said:
“[60] It is uncontroversial that two persons may agree in writing in a number of ways. An agreement may be made by the execution of a single formal document which contains the terms of the bargain agreed between the parties and shows by writing the accession of both parties to those terms, for example, by signature. Generally, an agreement in writing could also be formed by an exchange of letters or correspondence. In some contexts, an “agreement in writing” may be formed by the oral acceptance of a comprehensive written offer or document. We have some doubt that such a conclusion should be drawn in the context of s 249(1D)(b) given that the provision requires that the employer and an employee organisation “have agreed in writing” to bargain. That language suggests that the act of agreement must be made in written form. However, it is unnecessary to express a final view on that question.
[61] What is more significant in the present matter is that, for there to be an agreement in writing, all the terms of the agreement must be in writing and contained in a document or documents. That is important because, in the context of s 249(1D)(b), the agreement made in writing must be specific. The employer and the employee organisation must have agreed in writing to bargain for a proposed single enterprise agreement. Although the facts of each case will need to be considered, it is likely that this aspect of the agreement will need to be explicit. It is unlikely to be sufficient that an employee organisation has agreed to bargain in a general sense or communicated in writing that it is willing to attend bargaining meetings. The scope of a proposed agreement can itself be subject to bargaining. That could include bargaining in relation to whether an agreement should be made involving a single employer or covering multiple employers. An employee organisation merely agreeing in writing to participate in bargaining in a general sense, or attend a bargaining meeting, is unlikely to be sufficient without more to constitute an agreement to bargain for a proposed single-enterprise agreement. Merely agreeing to participate in bargaining, or attend a meeting, does not foreclose a contest in the bargaining itself in relation to the scope or nature of the bargaining process.”
After reviewing the correspondence relied upon by the Goldfields Council, the Full Bench was not satisfied that the parties had at any time agreed in writing to bargain for a proposed single-enterprise agreement.
The Full Bench also rejected a number of arguments advanced by the Goldfields Council on the question of whether the single interest authorisation is contrary to the public interest. In particular, the Full Bench stated:
[89] The fourth and final reason advanced by Goldfields Council as to why it is contrary to the public interest to make the authorisation is that it would be “contrary to harmonious and cooperative workplace relations” to do so. Goldfields Council submits that it wants to arrange its workplace relations at the enterprise level and that there is nothing that suggests that it has failed to utilise enterprise bargaining in a way that has not brought about harmonious, cooperative and productive workplace relationships over a long period of time. It refers to the succession of certified agreements, workplace agreements and enterprise agreements that have been made and covered its operations since 1996 and suggests that this provides evidence of regular and successful enterprise bargaining processes in which it has been involved.
[90] The mere fact that enterprise agreements have been regularly made since 1996 to cover Goldfield Council’s operations does not, in our opinion, support a conclusion that it is contrary to the public interest to make the authorisation in this matter. Goldfields Council submits that the history of bargaining is indicative of harmonious and cooperative workplace relations. There is, however, no evidence before the Full Bench as to how the enterprise agreements came to be made, whether the bargaining was contentious or otherwise or whether the conditions contained in the agreements were or are positively regarded by employees or the Council. Furthermore, we were not referred to any aspect of the content of the enterprise agreements that was said to support a conclusion that a requirement that Goldfields Council participate in bargaining with Ararat Council would be contrary to the public interest.
Protected industrial action suspended for 2 months at Port Phillip Prison
G4S had previously applied for an order suspending protected industrial action by employees at Port Phillip Prison. That application was dismissed on the basis of undertakings proffered by the CPSU.
G4S then made a fresh application, arguing the industrial action being organised by the CPSU threatened to endanger both prisoners and other employees. The employer relied on evidence of other incidents, operational and safety issues that had ensued during recent industrial action.
Commissioner Wilson granted G4S’ application. In doing so, the Commissioner was prepared to look beyond the Union’s safety undertaking. The Commission observed:
“[42] The threatened endangerment arises because of the circumstances of the prison: a controlled environment which undertakes the incarceration of prisoners charged with or convicted of serious crimes. I accept the evidence of Mr Maa and Ms Smith that changes to the routine needed to keep order heighten the risk of violence to employees or other prisoners, may harm the already diminished mental health of the prisoners and may escalate the possibility of self-harm.
[43] These risks and their intersection with each other are unusual and possibly unique risks. The consequences of the risks are also profound in the sense that if the risk of violence or selfharm came to be that either employees or prisoners could face lifelong consequences.
[44] There was previously the stoppage of between 5 ½ and 6 hours duration on 4 June 2024, about which Mr Maa reported difficulties in obtaining an acceptable number of staff, notwithstanding the CPSU’s undertaking. The union had undertaken 16 of its members could be found, however Mr Maa’s evidence was that only 12 attended for work, who were supplemented by a further 18 staff who did not engage in the stoppage. Mr Maa further reported that on the day “we were extremely fortunate to avoid any serious incidents, even with 30 correctional staff working”.
Protected industrial action was suspended for two months. On this issue, the Commissioner said:
“[67] … That is against the context of the Port Phillip’s prisons closure at the end of 2025 and likely reductions in staff and prisoners from some time earlier than close date. I would be concerned that, if a 3 month suspension were to be granted, that should bargaining flounder in the meantime, or not otherwise progress for some reason, including an information gap about the government’s intentions and timings, employees might be disadvantaged in their bargaining.
[68] At the same time a very short suspension, perhaps of 1 month or less would likely not assist bargaining, with G4S in particular having to then focus on the likelihood of a resumption of protection industrial action within a short period.
[69] In all, I consider that a midpoint of suspension, for a period of 2 months, is appropriate. The suspension for that period will allow intensive negotiations over the remaining part of November and into December and the early part of January. Not only in that time can negotiations take place, but the necessary representations to government can be made by G4S and the CPSU about their need for timely and decisive information relating to the reduction in functions of the Port Phillip prison and its ultimate closure at the end of 2025. A period of two months will also allow proper progression of the CPSU’s application pursuant to s.240 for assistance with a bargaining dispute which has been allocated for dealing with by myself.”
G4S Custodial Services Pty Ltd v CPSU [2024] FWC 3254.
Full Bench decision on preventing multiple actions
Earlier this year, Deputy President Colman dismissed two unfair dismissal applications, finding that they contravened s 725 of the Fair Work Act 2009 which prevents multiple actions in relation to an employee’s dismissal.
The unfair dismissal application was dismissed because, at the time that application was filed, there was a general protections court application on foot.
The Full Bench of the Fair Work Commission granted permission to appeal this decision, but dismissed the appeal.
There are several interesting and noteworthy aspects of this decision:
- the initial proceedings were instituted prior to the dismissal of the employees and whilst they challenged the proposed dismissal, they did not challenge the actual dismissal;
- the appellant discontinued her general protections application in the Federal Court shortly after filing her unfair dismissal claim in the Fair Work Commission; and
- the circumstances of this matter arose from employees trying to organise a petition of union employees in support of an enterprise agreement with the United Workers’ Union.
The Full Bench upheld the Deputy President’s decision and dismissed the appeal. The Full Bench said:
“[28] The focus in sections 726 – 732 is on an application having been “made”. The legislative intention is that “there be a prohibition on a second claim being commenced.” For the application to have been “made”, it is not necessary for it to have been validly made in the sense that jurisdictional or procedural requirements are met. So much is made clear by the exception in sections 726 – 732 to an application that has “failed for want of jurisdiction”. There is no basis to place a gloss on the statutory text to limit what circumstances might be “in relation to the dismissal” where the statute expressly contemplates that an application or complaint might fail entirely for want of jurisdiction. To the contrary, the express reference to an application failing for want of jurisdiction suggests the connective term “in relation to” is to be given a broad scope.
[29] As to section 734, that provision does not in terms or by implication, confine when a different application might be “in relation to” a dismissal. The focus of s 734 is on “the conduct” and whether that conduct, at the relevant time, does not “involve” the dismissal of the person. On its face, the term “involve” suggests a closer connection between the subject matters dealt with under s 734 than the connective “in relation to”. As a matter of logic, if later conduct involves a dismissal, then the terms of s 725 may apply, depending on the nature of the claims. So much appears implicit in the following statement of Mortimer J (our emphasis):
“86 In other words, as the parties accepted, the legislative intention revealed by the two limbs of s 734 is that in circumstances not caught by the prohibition in s 725, a person will only be able to seek final resolution of either their claim under anti-discrimination law or their general protections claim.””
(footnotes omitted)
Jonathon Dixon and Pareen Minhas v United Workers’ Union [2024] FWCFB 442
New Full Bench decision on ‘fairly chosen’ requirement
In September, Commissioner Tran granted a majority support determination against Loram Pty Ltd, a national rail track maintenance provider. Interestingly, the union sought a very narrow scope of its proposed agreement, being 6 Victorian employees who operate and maintain the grinder. The remaining 134 national employees were not included in the proposed agreement.
The employer appealed this decision. The Full Bench of the Fair Work Commission (Vice President Asbury and Deputy Presidents Colman and O’Neill) granted permission to appeal and then dismissed an appeal.
The Full Bench endorsed a relaxed approach to the “fairly chosen” requirement, concluding at [29] that:
“… Loram’s contention appears to assume that there cannot be operational or organisational distinctiveness in a subset of workers who are part of a broader national employment structure, but there is no reason why this cannot be the case. More generally, Loram submitted that the Commissioner was wrong to conclude that the chosen group was distinctive because the work they perform was not materially different to that performed by other employees around the country, but the nature of the work performed by a group of employees is only one of a myriad of dimensions that can be distinctive about that group and hence of potential relevance to the question of whether the group was fairly chosen, alongside the mandatory ‘distinctiveness’ considerations in s 237(3A). The fact that the work that employees perform is the same as work performed by others does not preclude or necessarily tell against a conclusion that the group is operationally, organisationally or otherwise distinct, or fairly chosen.”
This decision may give some comfort to employers with multiple enterprise agreements that are solely based on geographical distinctness. However, at the same time, this approach by unions to use their discretion to set the group of employees based on maximising their chances of getting majority support could be signs of a new trend that may emerge – especially in respect of single interest employer authorisations, which also require evidence of majority support.
Loram Pty Ltd v Australian Rail, Tram and Bus Industry Union [2024] FWCFB 433
Upcoming High Court cases
There are two key cases being heard by the High Court of Australia in the coming fortnight:
- Australian Competition and Consumer Commission v. J Hutchinson Pty Ltd (ACN 009 778 330) & Anor being heard together with Australian Competition and Consumer Commission v. Construction, Forestry and Maritime Employees Union & Anor on 5 December 2024 (the filed submissions are available here)
- Ravbar & Anor v. Commonwealth of Australia & Ors on 10 & 11 December 2024 (the CFMEU’s High Court challenge, the filed submissions are available here)
We will provide further updates as the cases progress.
