In this fortnight’s edition of the KHQ Workplace Watch, we cover:
- The Opposition’s opening election promises, and the House Standing Committee’s report on AI in the workplace.
- Updates from the Fair Work Commission including submissions made in relation to the model consultation term, further consultation for the paid agents review and minimum wage increases for aged care employees in the Nurses Award.
- Further developments in the transport industry.
- Recent Federal Court decisions regarding the issue of whether civil proceedings ought to be stayed pending criminal proceedings, and an employer being penalised for not making the modern award available to employees.
- Recent Fair Work Commission decisions regarding covert industrial action and a flexible work arrangement dispute.
- Work health and safety updates, including Safe Work Australia consulting on the engineered stone ban, WorkSafe Victoria’s guidance materials on managing remote office worker hazards and a labour hire provider which was penalised in connection with a fatal workplace incident.
ELECTION 2025
Opposition’s plans to repeal casual worker definition and right to disconnect
Shadow Employment and Workplace Relations Minister Michaella Cash revealed to Sky News on 10 February that if the Coalition Government is successful in the upcoming Federal election, it plans to repeal the new right to disconnect and the recent changes to the definition of casual employment under the Fair Work Act 2009.
In what is expressed to be a move towards an IR strategy that is ‘unashamedly pro-small business’, Senator Cash expressed that the Coalition believes the laws have ‘sent a chilling effect, in particular across small business’ and ‘we will seek to repeal them’.
She further explained that “if Mr. Albanese does not understand the cost, the complexity and the confusion that our small businesses are under, not just because of the changes to industrial relation laws, but just the weight of regulatory burden. If he doesn’t understand 27,000 small businesses have gone insolvent under him, well then shame on Mr. Albanese. We will seek to repeal those incredibly confusing changes to ensure that our small businesses are able again to prosper, to grow and do what we want them to do, and that is just keep on creating more jobs for the rest of Australia. It’s as simple as that.”
Senator Cash’s full interview transcript can be found here.
LAW REFORM AND REGULATORY UPDATES
Inquiry into the Digital Transformation of Workplaces
The House Standing Committee on Employment, Education and Training conducted an inquiry into the digital transformation of workplaces. Their report The future of work: inquiry into the digital transformation of workplaces was tabled in the House of Representatives on 11 February 2025.
The Chair of the inquiry, the Hon Lisa Chesters MP said:
“The committee found significant gaps in existing Australian regulatory frameworks regarding AI and ADM in workplaces. Worker protections are lacking, especially in regards to data and privacy. Tackling these issues is paramount to create safe and fair workplaces. Government and industry employers and workers have a role to play in promoting safe, responsible and ethical use of AI and ADM in workplaces. In this report, the committee has made 21 recommendations that focus on maximising the benefits of these technologies in the workplace, clarifying the obligations of technology developers and employers, enhancing privacy and data protection for workers, improving public trust in these technologies and strengthening Australia’s workforce and capacities. The committee’s report also identified that there are many immense benefits from AI and ADM systems—for example, enhancing productivity and efficiency, improving workplace health and safety, and strengthening compliance.”
The unanimous report makes 21 recommendations including that the Australian Government review the Fair Work Act 2009 (Cth) to ensure decision making using AI and ADM (automated decision-making) is covered under the Fair Work Act 2009 (Recommendation 2) and to review the Fair Work Act 2009 and Privacy Act 1988 (Cth) to protect workers, their data and privacy (Recommendation 11).
The Inquiry home page is found here and a copy of the report is found here.
Wage compliance for seafarers
The Fair Work Ombudsman (FWO) and the Australian Maritime Safety Authority (AMSA) have signed an enhanced Memorandum of Understanding (MoU) which aims to improve seafarer wage compliance monitoring and prevent operators of foreign vessels from underpaying wages and evading requirements under Australian law.
By signing the MoU, the FWO and AMSA have committed to enhanced compliance monitoring, conducting joint inspections of foreign-flagged vessels and developing training materials.
A copy of the MoU can be found here.
FAIR WORK COMMISSION UPDATES
Submissions issued in Model Terms Review
Ai Group filed submissions on 5 February 2025 in respect of the draft model terms and the questions posed by Justice Hatcher in December.
Two of the questions put to the parties concerned the appropriate trigger point for consultation in the model consultation clause and whether it should occur before a decision has been made. Ai Group submitted that the Termination, Change and Redundancy Case (TCR) was the genesis for the existing model consultation clause and that “it is clear from the decisions issued in the TCR Case that the relevant consultation term was directed towards the effects of a definite decision made by the employer to implement a major change. The clause was not intended to create an obligation to consult employees regarding whether the change itself should be made.”
Pursuant to the current timetable, final determinations for the potential changes to the model terms will be made by no later than 17 February, with the model terms to commence on 26 February 2025 or earlier by proclamation.
The Fair Work Commission’s major case page containing all statements and submissions can be found here.
A copy of Ai Group’s submissions can be found here.
Final statement on building and construction agreement applications
The President of the Fair Work Commission, Justice Hatcher has issued a statement providing a final update on the Fair Work Commission’s approach to the approval of enterprise agreements in the building and construction industry.
The Fair Work Commission took additional measures in relation to the approval of enterprise agreements in July last year including additional layers of scrutiny in the approval process for enterprise agreements where the CFMEU was an applicant, employee bargaining representative, or signatory.
Thirteen per cent of enterprise agreement approval applications were rejected or discontinued for the period up to 28 November 2024 after the Commission identified significant problems with them. This percentage has fallen to 3.5%for the period 28 November 2024 to 3 February 2025. Justice Hatcher states that he has a significant degree of confidence that the applications in the building and construction industry have the same level of compliance as enterprise agreements generally and the applications will now be dealt with according to the same procedures as for all other agreements.
The Statement also notes the timeliness for approvals for enterprise agreements has slipped as a result of the additional measures and that measures have been put in place to resolve this.
The Fair Work Commission’s media release may be found here and a copy of the statement may be found here.
Review of fixed-term contract provisions in Higher Education Awards
The Full Bench of the Fair Work Commission has published proposed variations to the Higher Education Awards to clarify the operation of fixed-term contracts under the fixed-term contract provisions of the Fair Work Act 2009 (Cth) introduced by the Same Job Same Pay reforms.
The Commission proposes to insert a note into the Higher Education Awards to the effect that the limitations in the Fair Work Act 2009 do not apply if the fixed-term contracts fall within the terms of the Awards.
Interested parties are invited to comment of the proposal by 3 March 2025.
A copy of the Statement ([2025] FWCFB 36) can be found here.
Public consultation for Paid Agents Review
The Fair Work Commission will hold public consultation on the implementation of the recommendations from the Paid Agents Working Group’s report published last September. The consultation will focus on the implementation of recommendations 2 and 3:
- Recommendation 2 – Disclosure of costs arrangements at the commencement of conciliation processes.
- Recommendation 3 – Enhancement of information about representation on the Commission’s website.
The Fair Work Commission’s announcement of the consultation which also has links to the report and recommendations can be found here.
Minimum wage increases for aged care employees under the Nurses Award 2020
From 1 March 2025, there will be changes to the Nurses Award 2020 including:
- increased minimum wages for enrolled and registered nurses working as aged care employees;
- changes to employee classification structures, with the previous level 5 pay classification for enrolled nurses working in aged care to change to one single level with one single minimum wage; and
- registered nurses working in aged care changing from 27 pay points spread across 5 levels, to 8 pay points spread across 5 levels.
Further details on the upcoming changes can be found on the Fair Work Ombudsman’s website here.
TRANSPORT INDUSTRY UPDATE
Fair Work Commission to conduct research
The Expert Panel for the road transport industry has issued a statement in respect of the three applications for minimum standards orders lodged by the Transport Workers’ Union (TWU), a fourth application for a contractual chain order and Menulog’s application to make a modern award to cover the on demand delivery services industry.
The Road Transport Advisory Group (RTAG) is conducting a consultation process in respect of those applications. The initial consultation period is anticipated to take six months.
The Expert Panel is of the provisional view that research may assist the Expert Panel in facilitating consultation. The Fair Work Commission’s Labour Standards Support Branch has identified four options for potential research projects:
- Information note with data on digital platform and road transport workers in Australia;
- Insights about digital platform worker characteristics and preferences;
- Data profile and mapping of the digital platform worker economy in Australia; and
- Data profile and mapping of road transport contractual chains in Australia.
Interested parties are invited to provide feedback on the proposed approach and suggestions for research projects by 21 February 2024.
The Expert Panel’s Statement ([2025] FWCFB 30) can be found here.
Consultation on draft gig worker bill in NSW
The New South Wales Government proposes to amend the Industrial Relations Act 1996 (NSW) to include provisions for gig workers. An exposure draft bill has been published for consultation.
The bill deems gig workers to be working under a contract of carriage if they perform work on a platform which would expand the owner driver provisions of the Industrial Relations Act to gig workers. This means that determinations could be made in respect of gig worker entitlements.
The NSW Government’s consultation page can be found here.
A copy of the exposure draft Industrial Relations Amendment (Transport Sector Gig Workers and Others) Bill 2025 can be found here.
CASE UPDATES
Stay for criminal proceedings – whether criminal proceedings ‘on the cards’
The General Manager of the Fair Work Commission initiated proceedings against Ms Diana Asmar, the Secretary of the Victoria No. 1 Branch of the Health Services Union and others in respect of the alleged misappropriation of funds from the Union. Ms Asmar sought a stay of the proceedings until she was advised by Victoria Police that no criminal proceedings will be initiated against her on the basis that the criminal proceedings deal with the same facts and matters as the General Manager’s application.
The Court outlined the ten applicable principles for stay applications ([22] – [31]). One of the principles is that the Court may stay a civil proceeding when a criminal prosecution has not commenced but is on the cards” or “reasonably possible”. This was in dispute.
Justice Dowling said:
“70 In Websyte there were already criminal charges, and it was known that Victoria police were investigating further charges. In Citation McKerracher J found that a relevant ASIC officer had sworn to the fact that Mr Landau may potentially be facing a criminal charge but still considered it premature to find that a criminal prosecution was on the cards. McKerracher J determined that allowing Citation to bring its case was a significant factor against a stay and that the question of a stay could be revisited should circumstances change. The likelihood of criminal charges is less certain for Ms Asmar and the other respondents than it was for Mr Landau in Citation. There is also less certainty and evidence about the investigation or its details than was before the Court in ActiveSuper and Woolridge.
71 I must assess the reasonable possibility of a prosecution of Ms Asmar (and the other respondents) on the evidence before me. The status of any current investigation by Victoria Police is unknown. The intentions of Victoria Police with respect to Ms Asmar or the other respondents is unknown. I accept the submissions of the General Manager that criminal charges against Ms Asmar and the other respondents is presently a matter of speculation. Whilst proceedings against Ms Asmar might be a possibility I am not satisfied on the evidence before me that they are on the cards or a reasonable possibility.”
Hence, there was no current ‘real risk of prejudice’ and the application was dismissed.
On the question of whether there was a ‘real prejudice’ to the respondents if a stay was not granted, Justice Dowling said:
“86 It is a grave matter to interfere with the usual course of proceedings and the General Manager is prima facie entitled to have his civil action tried in the ordinary course. That is to be assessed in the context of the General Manager performing a regulatory function in this proceeding: Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2016] FCA 504 at [79]-[80] per Middleton J. I accept that the General Manager’s proceeding may by stayed (temporarily or permanently) or dismissed by operation of the Act in any event. However, that will only occur where criminal proceedings are brought, and I am not presently satisfied that they are on the cards.”
General Manager, Fair Work Commission v Asmar (Stay application) [2025] FCA 67
Fair Work Commission refuses s. 418 order application in rail dispute
Sydney Trains and NSW Trains jointly applied for an order to stop industrial action taken by their employees and organised by the RTBU.
The RTBU gave notice that its members would engage in a partial work ban or go-slow by driving trains slower than the posted speed. Sydney Trains and NSW Trains notified employees that if they participated in the go-slow, they would not be accepted for work and would not be paid. The go slow was due to commence on 14 February 2025.
On 14 February, an “unprecedented” number (394) of train crew and guards did not attend for work, 273 of which had called in sick. The Applicants put on evidence that this was a 40% and 28% increase in sick leave for drivers and guards respectively compared to the average of the previous 6 Fridays. The RTBU’s evidence was that they did not advise anyone to use sick leave during this period and that there was no reason they would so advise as the employees’ choice was either to not engage in the partial work ban or not attend work at all.
The application alleged that the extraordinary taking of leave amounted to industrial action which had been organised by the RTBU.
Deputy President Roberts said:
“[38] I am unable to conclude on the evidence that industrial action is now happening amongst the employees. Nor do I think that such action is threatened, impending or probable. There was no evidence that either the Union or the employees had threatened further action or that such action was contemplated. The Union eschewed that possibility. There was no evidence that there was any communication amongst the employees themselves to coordinate such action on an ongoing basis.
[39] To the extent the number of sick absences was high on 14 February I think this is at least partially explained by the fact that this was the day the go-slow was to commence. This is likely to have generated some uncertainty in the workforce as to how they might be affected and whether or not it was in their interest to attend on the day. There was some evidence that employees were concerned that they would attend for work and not take any protected action but nonetheless lose payment for the day as a result of the s.471 notice and some external delay on the network unrelated to any protected action on their part. That is a plausible concern. It may in turn have even prompted some illegitimate claims for sick leave on the day, but I do not think that this is sufficient to conclude at this point that there is a probability that such action is presently continuing or will be ongoing.”
Sydney Trains, NSW Trains v Australian Rail, Tram and Bus Industry Union [2025] FWC 46
Flexible work orders made for employee who challenged return to the office
The Fair Work Commission has made unique orders in respect of a flexible work arrangement dispute.
Commissioner Matheson resolved the dispute as follows:
“[181] I consider it appropriate to order that the Respondent implement the following arrangement until Friday 4 July 2025, which ends around the same time as the end of term 2 of the 2025 school year:
- the Applicant’s overnight travel be limited to three nights per fortnight; and
- when attending the Office, the Applicant be permitted to undertake travel time from her home between the hours of 7am and 7pm, with LHD 2 to be considered her base for work and for this time to be taken as work time for the limited duration of this arrangement.
[182] Thereafter it is contemplated that the Applicant would be required to comply with the Respondent’s lawful and reasonable directions in respect of its requirements for the Applicant to work in the Office and as contemplated by the Hybrid Work Policy and that she would make her way to the Office in her own time and therefore meet the costs associated with this.”
Ordering that travel expenses be covered by the employer was justified on the basis that s 353(1) of the Fair Work Act 2009 (Cth) prohibits an employer from requiring an employee to spend an amount of the employee’s money if the requirement is unreasonable in the circumstances.
See the decision of Commissioner Matheson in AB v Australian Nursing and Midwifery Federation- New South Wales Branch [2025] FWC 338 here.
Employer penalised for failing to provide employee with a copy of the award
The Federal Circuit and Family Court (Division 2) has imposed a penalty of $12,500 to an employer who failed to make a copy of an employee’s award available.
The award was not made available to an employee for approximately six months in breach of clause 3.3 of the Professional Employees Award 2020.
Despite the Court concluding that the employee did not suffer any actual loss or damage as a result of the failure, the Court established that there was still a contravention to be dealt with and a financial penalty was necessary.
Judge D Humphreys said:
“[29] The Court accepts and adopts the submissions of the respondent insofar as they relate to the considerations related to the assessment of penalty. The Court accepts that this was a case of a mistaken belief that the award was not applicable to the respondent. The Court accepts the apology tendered on behalf of the respondent and notes that corrective action has been taken. The Court notes that there is no actual loss or damage occasioned to the applicant as a result of the contravention.
[30] The Court accepts that the maximum penalty payable in respect of this contravention is $66,600.00. Whilst a technical breach in many aspects, there was still a need to impose a penalty which is such as to ensure there is both specific and general deterrence. It would not be appropriate to impose a nominal penalty only.”
Wu v DSMJ Pty Ltd (No 3) [2025] FedCFamC2G 129.
WORK HEALTH AND SAFETY UPDATES
Safe Work Australia to consult on engineered stone ban
Safe Work Australia announced that it is seeking feedback regarding the engineered stone ban which commenced on 11 July 2024.
The announcement can be found here and information on the consultation can be found on the consultation hub here.
New guidance on managing remote office worker hazards
WorkSafe Victoria has released a comprehensive 136-page guide ‘Office health and safety: A guide for employers’. The guidance handbook provides advice on how to use a risk management approach to identify hazards and eliminate or reduce risks to employees performing office-related work.
The Guide identifies the risks that arise in relation to the home work station, distanced communication, psychological health and the risks of working from home in circumstances of family and domestic violence and the subsequent duties of employers in ensuring these hazards are mitigated.
WorkSafe has included a ‘Working from home safety and wellbeing checklist’ (see page 132 of the Guide).
The WorkSafe Victoria Guide on ‘Office health and safety’ can be accessed here.
Labour hire provider receives $415,000 penalty for fatality on host site
A labour hire provider was found guilty and fined $415,000 for breaching the Occupational Health and Safety Act 2004 (Vic).
The worker was placed at an orchid and fell from a moving trailer, sustaining fatal head injuries. The labour hire provider was found to have breached the Act because it should have provided workers with information, instruction and training on the dangers of riding on trailers, explicit directions not to ride on trailers, training on the safe use of equipment and on how to travel safely around a large, outdoor workplace.
The Magistrate’s Court decision was not published. WorkSafe’s media release on the decision is available here.
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