Resources: Blogs

Workplace Law recently represented an employer in defending an application for costs before the Federal Circuit and Family Court of Australia which was decided in favour of our client.

Section 114 of the Fair Work Act 2009 (Cth) provides an entitlement for an employee to be absent from their employment on a public holiday. This section also provides that an employer may ask an employee to work on a public holiday, but that the employee may refuse the request under certain circumstances.

The Fair Work Act 2009 (Cth) was amended last year to introduce a new test for determining if an individual is an employee or an independent contractor.

An employee will only be eligible to request flexible working arrangements if their request for changed arrangements is “because of” one of the prescribed circumstances set out under section 65(1A) of the Fair Work Act 2009 (Cth).

Employees have a duty to comply with their employer’s lawful and reasonable directions made under certain workplace policies. However, if an employer fails to apply their policies fairly, then the direction may be found not to be reasonable or lawful and any subsequent disciplinary action for non-compliance with that direction may found to be unfair.

For an employee to bring a general protections claim involving dismissal, they must be able to demonstrate that they were “dismissed” from their employment within the meaning of section 386 of the Fair Work Act 2009.

In “Where does it end?” we looked at the decision of the Full Federal Court of Australia in Helensburgh Coal Pty Ltd v Bartley [2024] FCAFC 45. In that decision, the Full Federal Court refused an application from an employer seeking orders to quash previous decisions and compel the Fair Work Commission from further dealing with unfair dismissal applications lodged by employees who had been made redundant.

The Sex Discrimination Act 1984 (Cth) protects employees from sexual harassment, and as part of the Respect@Work amendments now prohibits sex-based harassment.

For an employee to have access to the unfair dismissal jurisdiction, the Fair Work Commission must be satisfied that the employee was “dismissed” from their employment within the meaning of section 386(1) of the Fair Work Act 2009 (Cth).

The Model Work Health and Safety Act 2011 (Cth) imposes a positive duty on officers to exercise due diligence to ensure the person conducting a business or undertaking complies with its work health and safety duties and obligations.

Where there are concerns about an employee’s capacity to work, it is prudent for employers to obtain medical advice confirming whether the employee can safely perform the inherent requirements of their role. This may include requiring the employee to undergo an independent medical examination.

Where there are concerns about an employee’s fitness to work, employers may rely on terms in their employment contract which require the employee to comply with the reasonable and lawful direction to undergo a medical assessment.

Employers have a responsibility to address and manage poor conduct and behaviour which may expose other workers to work health and safety risks in the workplace. Implementation of effective disciplinary processes are vital in curbing such risks that may lead to a poor workplace culture, which may in turn create psychosocial hazards.

Amendments to the Fair Work Act 2009 (Cth) limiting the use of fixed term and maximum term contracts prohibit employers from providing employees with successive term contracts, unless an exception applies.

The emergence of telehealth services and online-sourced medical certificates has made obtaining a medical certificate for employees easier than ever.

Under the National Employment Standards an employee in certain circumstances has the right to request flexible working arrangements . Since June 2023, employees can lodge an application to the Fair Work Commission to resolve disputes relating to FWA requests where an employer has denied the request or failed to respond within 21 days, and attempts to resolve the dispute at the workplace level were unsuccessful.

An employer may only refuse an employee’s request for a flexible working arrangement if it has “reasonable business grounds” to do so. The test for what constitutes reasonable business grounds is objective and will depend on the individual circumstances.

Employers should be mindful of the risks of mischaracterising a worker when engaging them to perform work.

If an employer is questioning the capacity of an ill or injured worker’s ability to fulfil the inherent requirements of their position, they may consider testing the legitimacy of an employee’s prognoses and medical advice. In these circumstances, the employer should be aware of their obligations to the employee and the potential consequences of failing to satisfy them.

It is best practice for employers to ensure that their policies and procedures are properly communicated and understood by employees, especially in circumstances where the policy relates to important topics such as the health and safety of employees.

There are a number of legal obligations and risks that an employer must consider when implementing any form of disciplinary or dismissal process. These are not limited to claims made under the Fair Work Act 2009 (Cth) but can also include the risk of claims made under anti-discrimination or workers compensation legislation.

In the recent unfair dismissal decision of Carmody v Bureau Veritas Minerals Pty Ltd [2025] FWC 259, the FWC has clarified what will (or will not) constitute ‘serious misconduct’ warranting summary dismissal in the context of managing employee performance.

There are certain restrictions in Australia on the types of people that may be lawfully employed by an employer. Specifically, a person can only work in Australia if they are an Australian citizen, permanent resident or they have a valid visa with work rights.

In October 2023, we reported on a decision of the Australian Capital Territory Civil and Administrative Tribunal that found an employer had unlawfully discriminated against an employee because of her breastfeeding responsibilities. The Tribunal has now handed down its decision in relation to the remedies flowing from that contravention.

The Fair Work Commission, in a recent decision declining to make stop-bullying orders, has provided some guidance on de-escalating conflict in the workplace which may seem quite obvious on its face, but is worth a reminder to employers and managers.

In its simplest form, an employment contract is a legally enforceable document between two parties where there is an offer and acceptance to be bound by its terms and conditions. Where an employment contract has been signed, it cannot be unilaterally changed by one of the parties – there must be agreement by both parties.

A decision of the Federal Court of Australia early last year has provided support to employers who find themselves in the unfortunate position of suffering loss and damage as a result of an employee’s breach of their post-employment restraints.

In safety-critical workplaces, it is essential that employers not only have in place robust safety standards and policies but also that they regularly enforce them and penalise infractions appropriately.

An employee will only be eligible to request a flexible working arrangement if they are able to demonstrate that there is a sufficient nexus between one of the prescribed circumstances under the Fair Work Act 2009 (Cth) and the request itself.

When relying on a workplace policy as grounds for dismissal, employers must be able to clearly demonstrate that the employee is aware of the policy and has undergone meaningful training on the policy.

An employer may apply to the Fair Work Commission to have an employee’s redundancy pay reduced to a specified amount (which may be nil) in circumstances where it has obtained “other acceptable employment” for the employee.

Where there is a factual dispute about allegations made against an employee, employers must ensure that the allegations are properly tested before proceeding to a disciplinary process. This will ensure that the employee has been provided with procedural fairness and any reasons relied on by the employer as grounds for dismissal are valid.

When engaging overseas workers to perform work for an Australian entity, employers need to be mindful of the risks that such workers may be considered employees to whom the Fair Work Act 2009 (Cth) might apply.

You have hired an employee who appears to be perfect on paper, only to later discover that they have misrepresented or deliberately withheld information about their qualifications, employment history or problematic past. A simple and often overlooked way of mitigating unfortunate surprises like these is conducting pre-employment checks to verify whether a candidate is as suitable, qualified and impressive as their resume or interview has portrayed them to be.

The probation period is commonly used by employers to assess the suitability of an employee for ongoing employment. One of the reasons that the probation period is of benefit to employers is because, when aligned with the minimum employment period set out in the Fair Work Act 2009 (Cth), it allows an employer to end the employment relationship before an employee becomes entitled to protection from unfair dismissal.

When conducting workplace investigations, one issue that we commonly face is ensuring that the process is completed in a timely manner to minimise any disruption and uncertainty in the workplace. However, whilst investigations should be completed as quickly as possible, this must not come at the expense of procedural fairness being provided to all employees involved.

There is no doubt that the COVID-19 lockdowns have changed the way in which most businesses work. While working remotely has provided employers and employees with flexibility, many employers have now started directing employees to return to the workplace either full-time or under hybrid working arrangements.

In a recent decision of the NSW District Court, a sole trader has been convicted and fined $100,000 for breaching his health and safety duty under the Work Health and Safety Act 2011 (Cth), which resulted in workers being exposed to a risk of death or serious injury.

Employers often do not require (or desire) employees to work through their notice period. This is particularly the case if an employee has provided resignation of their employment and are disruptive to the workplace.

The director and Chief Executive Officer of a group of four sushi restaurants which operated in NSW, the Australian Capital Territory and the Northern Territory was recently ordered to pay $1.6 million for her involvement in contraventions of the Fair Work Act 2009 (Cth) by the Federal Court of Australia.

When considering the financial impact of redundancies, employers should be mindful of the operation of s 120 of the Fair Work Act 2009 (Cth), which allows an employer to apply to the Fair Work Commission to reduce the amount of redundancy pay it is obligated to pay redundant employees in certain circumstances.

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks can often arise from hazards such as workplace conflict or poor workplace relationships.

Managing an underperforming employee can often be a complex task, particularly in circumstances where the employee has shown signs of improvement, but their overall quality of work continues to fall below the minimum expectations.

One of the National Employment Standards in the Fair Work Act 2009 (Cth) is the right to request a flexible working arrangement in certain circumstances. In or about mid-2023, the FW Act was amended to give the Fair Work Commission power to conciliate and arbitrate disputes about such requests.

In a recent unfair dismissal decision, the Fair Work Commission has provided support for the position that employees bear the responsibility of complying with workplace policies and procedures and that a failure to do so can amount to not only a valid reason for dismissal but may constitute serious misconduct warranting summary dismissal.

In times of major organisational change which result in restructure and redundancies, employers may overlook obligations they may have to provide notice and consult with employees under industrial instruments.

When engaging people to perform work, businesses must be aware of the distinction between an employee and an independent contractor as there are varying legal rights, obligations and entitlements which apply to the respective working relationships.

In workplaces where machinery is operated, it is important that the highest level of safety is adhered to. In Bunce v Pmfresh Pty Ltd [2024] FWC 1577, the Fair Work Commission has recently held that an employee’s admitted drug use and poor regard for forklift safety were valid reasons for dismissal.

A recent decision of the Office of the Australian Information Commissioner has illustrated how difficult it can be for employers to balance their obligations under various workplace laws when managing ill and injured employees.

Enterprise agreement making under the Fair Work Act 2009 (Cth) requires bargaining representatives to bargain in good faith. Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Commission was provided with new powers to arbitrate and issue a workplace determination to resolve intractable disputes about terms and conditions of proposed enterprise agreement in circumstances where there are no reasonable prospects of the parties reaching an agreement.

Employees are protected from adverse action because they have exercised, or propose to exercise, the workplace right to make a “complaint” or “inquiry” in relation to their employment within the meaning of section 341(1)(c)(ii) of the Fair Work Act 2009 (Cth).

An employer has successfully defended an adverse action claim brought by a former employee as the court was satisfied that the employee was not dismissed for a prohibited reason.

A recent decision of the Fair Work Commission has confirmed that an employee’s inappropriate use of social media group chats may form a valid reason for dismissal, particularly when matters relating to work are discussed.

When seeking to enforce a restraint, it is important that employers seek to enforce the restraint in a timely manner to prevent future or an ongoing breach. Any delay will be considered by the courts when assessing whether it is reasonable to enforce the restraint.

Sexual harassment in the workplace has been the subject of significant reform over the past few years, with an even greater onus on employers now to take proactive measures to minimise or eliminate the risk of sexual harassment in connection with work.

When it comes to drafting post-employment restraints in employment contracts, it is important for employers to consider the purpose of the restraint and whether or not the restraint reasonably serves that purpose.

The Fair Work Act 2009 (Cth) sets out the union right of entry to entitlements and requirements. The right of entry provisions are intended to draw a balance between the right of organisations to represent their members and the right of employers and occupiers to operate without undue inconvenience.

Section 389(2) of Fair Work Act 2009 (Cth) provides that a dismissal will not be a case of “genuine redundancy” if it “would have been reasonable in all of the circumstances” for the employee to be redeployed within the employer’s enterprise or the enterprise of an associated entity.

Various Australian jurisdictions have been slowly introducing an offence of industrial manslaughter, dealing with workplace fatalities that arise as a result of negligent conduct by a person conducting a business or undertaking or its officers.

Under work health and safety legislation, persons conducting a business or undertaking have duties to ensure, so far as reasonably practicable the health and safety of workers in the workplace. It is also accepted that workplace bullying is a risk to health and safety of workers which needs to be managed as any other health and safety risk.

The Federal Court of Australia has handed down a record $10.34 million in penalties against two related entities for various contraventions of the Fair Work Act 2009 (Cth) resulting in substantial underpayments.

A recent decision of the New South Wales Personal Injury Commission serves as a reminder of the differing standards of proof when determining liability for claims of bullying and/or harassment under workers compensation laws and the Fair Work Act 2009 (Cth).

The Fair Work Act 2009 (Cth) requires employers to keep certain employee records for a period of 7 years. These records are necessary to ensure that employees have been paid their minimum entitlements should an underpayment claim be made.

One of the many changes to the Fair Work Act 2009 (Cth) introduced this year include the Fair Work Commission’s new powers to deal with disputes relating to requests for flexible working arrangements.

A recent decision of the Federal Court of Australia – Full Court has provided some clarity to employers in relation to when the obligation to pay superannuation will or will not arise.

Work from home arrangements have become the “new normal” across many workplaces since the COVID-19 pandemic.

As part of the introduction of the Fair Work system for Australia’s national workplace relations system ushered in by the Fair Work Act 2009 (Cth), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provided for the continued existence and application of industrial instruments created under the Workplace Relations Act 1996 (Cth) or before the FW Act commenced.

There are a number of personal attributes that are protected by Australia’s federal and state anti-discrimination laws, such as a person’s race, sex, pregnancy, marital status, family responsibilities, breastfeeding, age, disability, sexual orientation, gender identity or intersex status.

Many businesses, and in particular small businesses employers subscribe to human resources information systems which offer access to template letters and policies to provide a ready-made solution or to manage human resources administration.

With Christmas less than 90 days away, employers should be turning their mind to planning and confirming their Christmas/New Year shutdown arrangements.

Disability discrimination legislation protects persons from being treated less favourably as the result of their disability.

There are only limited circumstances in which a union or union representative are entitled to enter the workplace of an employer. One such circumstance is permitted by work health and safety (WHS) legislation – and it permits a WHS entry permit holder to enter a workplace for the purpose of inquiring into a suspected contravention of WHS legislation that relates to, or affects, a relevant worker.

In December 2022, a number of significant changes to the Fair Work Act 2009 (Cth) came into effect as a result of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022.

One of the effects of the amendments to the Fair Work Act 2009 (Cth) (FW Act) which came into effect on 6 June 2023 is that employers now have greater obligations when responding to requests for flexible working arrangements made under s 65 of the FW Act.

A question that arises quite often amongst our clients is – do non-disparagement clauses have any practical effect? Or are they even enforceable? The answer is yes, when drafted correctly.

In cases of workers compensation involving psychological injury, employers may rely on the “reasonable management action” defence to dispute liability for injury.

For most employers, casual employment is favoured because of the flexibility it provides – employees are employed as required and have no guarantee of ongoing employment. This flexibility however does not mean that casual employees are not protected from adverse action.

Employers have work health and safety obligations to eliminate or minimise psychosocial risks in the workplace so far as is reasonably practicable. These risks arise from psychosocial hazards including conflict or poor workplace relationships.

In a timely reminder about the importance of carefully drafting enterprise agreements, the Federal Court of Australia – Full Court has recently determined a dispute about the definition of “ordinary time earnings” in a particular enterprise agreement. In doing so, the Full Court confirmed that departures from the plain text of an enterprise agreement will not be justified (unless there is an absurdity or a very seriously anomalous result).

Differences in opinion, dysfunctional relationships and disagreements between employees may occur from time to time in the workplace. Generally, these instances of workplace conflict do not amount to bullying behaviour, which is defined as repeated, unreasonable behaviour causing a risk to health and safety.

All employees (including part-time and casual employees) will soon have the entitlement to 10 days of paid family and domestic violence leave per year under the National Employment Standards, replacing the existing entitlement to five days of unpaid family and domestic violence leave.

The NSW District Court has heard how following an incident involving the low voltage pole changeovers which caused significant injuries to a worker, a similar incident occurred about nine weeks later, this time causing a fatality.

With the new Respect@Work amendments now in place, employers should be mindful of a recent decision handed down by the Fair Work Commission where it upheld the dismissal of an employee on the basis that swearing at a colleague constituted sexual harassment.

The Fair Work Commission has reminded employers about the duty to afford procedural fairness to employees prior to dismissal.

It is unlawful in Australia to discriminate against an individual because of their age. Employers are specifically prohibited from discriminating on the basis of age under Federal and State anti-discrimination laws, and a person’s age is also a protected attribute under the general protections provisions of the Fair Work Act 2009 (Cth).

An employee’s dismissal will not be a case of genuine redundancy if it would have been reasonable in the circumstances for the employee to be redeployed within the employer’s enterprise or one of its associated entities.

When implementing redundancies, it is critical that the process for selecting employees for redundancy is a transparent and objective one. A skills matrix can assist employers in this regard by creating clear and objective criteria against which employees are to be assessed.

Last year, the Federal Circuit and Family Court of Australia found a HR Manager to be accessorily liable for his involvement in an employer’s unlawful adverse action against an employee after she proposed to exercise a workplace right, being her ability to initiate proceedings under a workplace law.

In our previous blog “Time to be professional” we reported on the variations to Professional Employees Award 2020 (the Award) proposed by the Full Bench of the Fair Work Commission. The Full Bench has now confirmed is decision to vary the Award.

We often speak about the importance of honesty and candour in an employment relationship, particularly when it comes to matters that may be personal to an employee but which may also affect their ability to perform their role, such as their health, family or living status or their criminal record.

It is not unusual for employers to want to have a frank discussion with an employee when the relationship is not working out, seeking to agree to an exit strategy. This is often referred to as a “fire side chat”. However, these discussions must be carefully considered and planned because if the employee is not receptive, the employee can claim that the discussion created a situation forcing them to resign.

Under the anti-bullying jurisdiction of the Fair Work Act 2009 (Cth), the Fair Work Commission has the broad power to make an order (other than monetary payment) that it considers appropriate to prevent a worker from being bullied at work.

In a recent decision involving a forklift fatality, the District Court of New South Wales has cautioned growing businesses of the need to ensure that their WHS systems are adequate for the size of the business and the type of work being performed.

For an employee to bring a valid unfair dismissal claim or a general protections claim involving dismissal, it should be obvious that they must have been dismissed by their employer.

When considering changes to an employee’s employment, employers need to be mindful that significant reductions in remuneration or duties may constitute a “dismissal” under the Fair Work Act 2009 (Cth).

Drafting workplace policies and procedures can be a daunting exercise – it requires a careful balance of including (or omitting) information that is necessary from a legal standpoint, whilst still remaining easy to understand and follow for employees.

Managing disgruntled employees can often be a difficult and drawn out process. It may often also be difficult to see the path forward when an employee who is subject to management action seeks retaliation by lodging grievances or commencing proceedings against their employer.

One of the key issues that has dominated discussion in the workplace relations area in recent years is the unlawful underpayment of employees (particularly of vulnerable workers) and the penalties that should be imposed on non-compliant employers.

In NSW, employees are entitled to long service leave after 10 years of continuous service with their employer. A recent decision of the NSW Court of Appeal has redefined the entitlement to long service leave in circumstances where part of their service has been completed outside of NSW.

A recent decision of the Victorian Civil and Administrative Tribunal, which has resulted in an employer being required to pay an employee over $53,000 in compensation, has highlighted the need for employers to inform themselves of their obligations in relation to eliminating workplace sexual harassment, victimisation and sex discrimination.