Recent developments in employment law

The latest issues, decisions and proposed changes impacting business and workplace risk 13 min read

The vote must go on: FWC grants first voting request order 

By Katherine Dommerson, Jessica Hodgson and Anya Plummer 

Full Bench considers test for voting request orders

As part of the Secure Jobs, Better Pay reforms, employers bargaining for certain proposed enterprise agreements, including multi-enterprise agreements, can only ask employees to vote on the proposed agreement if they have the prior written agreement of all union bargaining representatives to do so. If this agreement is withheld, the employer can apply to the Fair Work Commission (the FWC) for a 'voting request order', which, if made, allows the vote to take place. 

A Full Bench of the FWC has provided guidance on the test for voting request orders in its recent decision involving Sydney Trains and NSW Trains.¹  

Key takeaways

• This decision is the first time the FWC has considered the new voting request order provisions in the Fair Work Act 2009 (Cth) (the FW Act) since they commenced in June 2023.
• The Full Bench has confirmed the test requires an objective assessment of whether the union's refusal was unreasonable, having regard to the whole of the circumstances relating to the bargaining (and is not directed to whether the FWC believes it is reasonable for the vote to be conducted).
• It confirmed the test also requires a 'prospective, future-focused' consideration of whether allowing a vote to take place would be inconsistent with or undermine good faith bargaining (and indicated that a past breach of the good faith bargaining requirements would not necessarily prevent an order being made).

Background

In late May 2024, Sydney Trains and NSW Trains commenced bargaining with seven unions and a number of individual bargaining representatives to replace the Sydney Trains and NSW TrainLink Enterprise Agreement 2022 (the EA). Consistently with historical practice, the unions commenced bargaining as a single bargaining unit known as the 'Combined Rail Unions' (the CRU).

In December 2024, the FWC issued a single interest employer authorisation requiring the parties to bargain for a single interest employer agreement, which is a form of multi-enterprise agreement.

The Full Bench described the bargaining as 'contentious and eventful'. It has involved the taking of protected industrial action, multiple applications to suspend or terminate protected industrial action, and applications to deal with bargaining disputes and make bargaining orders.

On 19 February 2025, the Full Bench of the FWC suspended protected industrial action until 1 July 2025. The following day, the Electrical Trades Union (the ETU) advised Sydney Trains and NSW Trains that it was no longer part of the CRU and commenced bargaining separately. Following the suspension, the Full Bench convened a significant number of conferences to assist the parties to reach agreement.

In late May 2025, the CRU reached an in-principle agreement with the employers. The ETU opposed a term of the in-principle agreement. On 30 May, a Full Bench of the FWC issued a recommendation (in the context of a bargaining dispute about the disputed clause) that certain amendments be made to the disputed clause and that the unions agree in writing that the in-principle agreement (inclusive of the amended clause) be put to an employee vote.

Despite this recommendation, the ETU did not agree to the vote, and subsequently raised an additional concern in relation to the in-principle agreement. It then filed an application for bargaining orders against both employers and the Australian Rail Tram & Bus Industry Union (the RTBU). The employers applied to the FWC for a voting request order under section 240A of the FW Act.

Key outcomes

Bargaining orders dismissed 

The Full Bench of the FWC found no evidence that Sydney Trains or NSW Trains had failed to meet the good faith bargaining requirements. Similarly, allegations against the RTBU, such as excluding ETU representatives from crucial meetings, were not substantiated and both applications were dismissed.

Voting request order made

Section 240B provides that the FWC must make a voting request order if it is satisfied that:

1. the employee organisation's refusal to provide written agreement was unreasonable in the circumstances; and
2. making the request would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.

The Full Bench explained that s240B(a) calls for a 'broad value judgment that balances the interests of all affected parties', and requires an objective assessment of the reasonableness of the employee organisation's refusal, having regard to the whole of the circumstances surrounding bargaining. It said the test is not directed to whether the FWC believes it is reasonable for the vote to be conducted.   

Additionally, the Full Bench noted that s240B(b) involves a 'prospective, future-focused' consideration of whether asking employees to approve the agreement through voting would be inconsistent with or undermine good faith bargaining. It noted that a past breach of the good faith bargaining requirements would not necessarily prevent the making of a voting request order.

The Full Bench ultimately found the ETU's refusal to provide written agreement was unreasonable for reasons specific to the bargaining, including:

• the bargaining process had been 'lengthy, complex and heavily contested';
• in-principle agreement had been reached on 'virtually all the matters' at issue between the parties, and all other unions had agreed to the vote taking place;
• the ETU's opposition to one of the two outstanding issues was 'trivial', and the other based on a claim that was only put to the employers after the in-principle agreement had been reached;
• not issuing the order would deprive employees of an early opportunity to vote upon a 'highly beneficial outcome to the bargaining', noting that the bargaining had caused disruption to the people of NSW and to the economy;
• the suspension of protected industrial action was due to expire; and
• there was no evidentiary basis to accept the ETU's submission that issuing the voting request order would be inconsistent with or undermine good faith bargaining because it had been excluded from bargaining and not provided with relevant information.

It remains to be seen how the FWC will approach the provisions in different circumstances, including where a union refuses to agree to a vote because the proposed agreement does not resolve a substantive claim it has consistently pressed throughout the bargaining; and/or where no protected industrial action has occurred during the bargaining; and/or where the parties have not yet sought the FWC's assistance to resolve the outstanding issues in the bargaining.  

New statutory tort for serious invasions of privacy: employment considerations

By Tarsha Gavin, Emily Cravigan, Lawrence Mai 

New statutory tort for serious invasions of privacy becomes law

From 10 June 2025, individuals have had a statutory cause of action in tort for serious invasions of privacy. The cause of action can be brought against other individuals, or against entities, regardless of whether they are otherwise bound by the Privacy Act 1988 (Cth) (Privacy Act). This means that employers are not immune from the cause of action and can potentially have direct or vicarious liability under it.

Key takeaways

• The statutory tort can be established when there is an intrusion into seclusion or a misuse of information (in circumstances where a reasonable expectation of privacy exists), the invasion is 'serious' and intentional or reckless, and the interest in protecting the individual's privacy outweighs countervailing public interests.  
• Employers are not immune from direct or vicarious liability under the new statutory tort. The introduction of the tort may not of itself warrant an overhaul of your organisation's data handling and cyber security practices, but it is another good reason to ensure they are adequate and robust. 

Background

As part of the first tranche of reforms to the Privacy Act, the new statutory tort for serious invasions of privacy came into effect on 10 June 2025. This long-awaited reform was one of the original recommendations of the Australian Law Reform Commission in its 2014 report on Serious Invasions of Privacy in the Digital Era.

Under it, individuals now have a potential cause of action against persons irrespective of whether they are bound by the Privacy Act (with certain exceptions, most notably a journalism exception). Although the new tort is established by and sits within the Privacy Act, it operates independently of its other provisions, including:

1. the Australian Privacy Principles (APPs); and
2. the 'employee records exemption' that exempts certain data handling acts or practices by employers. 

Importantly, the new tort allows a course of action for physical intrusions into privacy, not just a misuse of information (the APPs regulate information privacy only).

Elements of a successful claim 

To establish a claim, the following elements need to be satisfied:

(i)              there is an invasion of privacy, either by an intrusion into seclusion or a misuse of information, in circumstances where a reasonable expectation of privacy exists;

(ii)             the invasion of privacy was 'serious' and intentional or reckless ('reckless' taking its meaning from the Criminal Code Act 1995 (Cth), being a higher threshold than 'negligence'); and

(iii)           the public interest in protecting the individual's privacy outweighs any countervailing public interests (such as, the freedom of expression or freedom of the media).

Potential risks from an employment perspective

It is possible that an employee or contractor could attempt to bring a cause of action against an employer directly, if the employee or contractor can establish that their employer has either breached their seclusion or misused their information, and the other elements of the tort are made out.

It is also possible that an employer could have vicarious liability in circumstances where their employee has committed a serious invasion of privacy in the course of their employment. This may include scenarios where:

• a disgruntled employee publicly leaks sensitive information about another employee; or
• an employee uses company technology to record another employee in a private space.

However, it seems that it would generally be difficult to make out a successful claim in these types of scenarios, given that vicarious liability is generally difficult to establish in the context of employees' criminal or intentional acts.

Although the introduction of the new tort may not of itself warrant an overhaul of your organisation's data handling and cyber security practices, it is another good reason to pay attention to ensuring your organisation has embedded robust data handling and cyber security practices, eg:

• minimising your employees' access to personal information unless necessary for their roles; and
• ensuring adequate employee policies and regular training regarding data security, privacy compliance and appropriate technology usage.

New guidance on workplace gender equality obligations for large employers   

By Anthony Hallal and Annabelle Elliott

WGEA guidance now available to support compliance with new gender equality obligation

Under the Workplace Gender Equality Act 2012 (Cth) (the WGE Act), certain employers are subject to reporting obligations that are aimed at building transparency regarding gender equality in the workplace. The WGE Act also requires some employers to have in place policies or strategies to support prescribed gender equality indicators.

Earlier this year, the Federal Government extended these requirements by introducing a new obligation on certain employers to select and meet (or show they are progressing towards) three gender equality targets over a three-year period. The Workplace Gender Equality Agency (WGEA) recently released guidance to support compliance with these new obligations.

Key takeaways

• Certain large employers must now select and meet (or progress towards) three prescribed gender equality targets as part of their WGE Act reporting obligations.
• Affected employers should begin planning now to ensure meaningful target selection and compliance readiness, and consider WGEA's published guidance, to help them comply with these new obligations.

Background

Employers that meet the definition of a 'designated relevant employer' under the WGE Act will be required to select and achieve, or demonstrate progress against, three gender equality targets.

This new obligation expands on the existing requirements under the WGE Act, by requiring large employers to select targets from a prescribed 'menu' set out in the Workplace Gender Equality (Gender Equality Targets) Instrument 2025. The menu includes both numeric targets (which require employers to nominate a quantitative improvement against a baseline) and action targets (which involve implementing or adding to existing gender equality policies or initiatives). The targets relate to WGEA's prescribed gender equality indicators and are subject to eligibility criteria that prevent employers from selecting targets they have already achieved. Employers must meet, or progress towards, the selected targets over a three-year period.

Non-compliance can carry material consequences for employers, including reputational damage, ineligibility for Commonwealth procurement opportunities and, in some cases, where false or misleading information or documents are provided to WGEA, exposure to criminal liability.

See our full analysis of the WGE Act, including the recent amendments and their implications.

WGEA guidance materials

To help relevant employers prepare, WGEA has released several resources, including:

• Target selection guidance, which provides examples of how the targets in the prescribed menu may be implemented in practice; and
• an FAQs and workflow timeline document, which addresses common queries, such as how targets are assessed, what constitutes progress or achievement, and consequences of non-compliance. This resource also includes a timeline outlining key stages in the target-setting cycle – from baseline data reported in 2025, to the assessment of progress or achievement in 2029.

WGEA, as the regulator in this area, has also indicated that further support, including masterclasses and advisory services, will be made available.

Next steps for employers

WGEA has emphasised that employers should begin preparing now, by reviewing the prescribed targets and associated guidance, conducting or updating gender pay gap analyses, and engaging senior leadership early to support target selection and implementation. Early and proactive preparation will help reduce compliance risk, and demonstrate a genuine commitment to workplace gender equality.

For further information, see our Insight.

Less flexible, still acceptable: FWC reduces redundancy pay to zero 

By Sarah Lunny and Isabel Horsley

Employee not entitled to continued informal remote work arrangement in alternative role

A recent decision of the Fair Work Commission (the FWC) has confirmed that a less flexible role offered to a retrenched employee may still constitute 'other acceptable employment' for redundancy pay entitlements.²  

Key takeaways

• Under the Fair Work Act 2009 (Cth) (the FW Act), an employer can apply to the FWC to reduce an employee's redundancy pay if it has obtained other acceptable employment for the employee.
• The test of what constitutes 'other acceptable employment' is objective and involves consideration of a wide range of factors. An alternative role may still be 'acceptable' even if it does not include all of the same arrangements or benefits that were available to the employee in their original role.

Background

The employee was employed by Mater Misericordiae as an educator for approximately six years. In this role, she had agreed to an informal arrangement with Mater that permitted her to work from home two days per week.

Between January and February 2025, the employee's position was made redundant, and, after a period of consultation, Mater offered her an alternative educator position within the company. The new position, which involved curriculum delivery, would require the employee's on-site attendance most days of the week.

The employee declined the new position, claiming it would negatively impact her work-life balance, as it required onsite attendance. She also claimed the new role was not acceptable because it lacked role clarity and would require her to gain additional qualifications.

Mater applied to the FWC to vary the employee's redundancy pay, on the basis that it had offered her other acceptable employment that she had refused.

New role was 'other acceptable employment'

The FWC emphasised that the test for whether an alternative role offered by an employer is 'other acceptable employment' under the FW Act is an objective one.

In the employee's case, the alternative educator role that Mater offered was on the same rate of pay, required the same number of hours of work per week, and provided the employee the same level of seniority, job security and ongoing continuity as her old position.

In looking at the employee's concerns that the alternative educator role would not incorporate the informal remote work arrangement she had in her original role, the FWC considered it relevant that she was not legally entitled to that arrangement either contractually or as an approved flexible working arrangement under section 65 of the FW Act. The FWC also recognised Mater had appropriately communicated the requirements of the new role to the employee during the consultation process, and the potential need for her to obtain additional qualifications did not render the position unsuitable.

The FWC found that  the employee's concerns were not sufficiently significant to undermine the objective suitability of the new role under the FW Act, and reduced her redundancy entitlement to zero.

Cases to watch: Federal Court claims regarding the 'Right to disconnect' and fixed term contracts 

By Tegan Ayling and Leila Zraika

Right to disconnect and limits on fixed-term contracts may soon be under Federal Court's microscope

Two cases currently before the Federal Court are expected to provide guidance on the practical operation of some of the new provisions introduced by the Closing Loopholes and Secure Jobs, Better Pay reforms as they relate to the right to disconnect and fixed-term contracts.

Key takeaways

• Pending mediation, we may see the right to disconnect in the spotlight when it is considered in the context of a 'general protections involving dismissal' claim filed in the Federal Court. The right to disconnect commenced in August 2024 for most employers³ (see our Insight)
• The Federal Court will soon hear a case about an alleged breach of the fixed-term contract limits introduced into the Fair Work Act 2009 (Cth) (the FW Act), following the Media, Entertainment and Arts Alliance (the MEAA) commencing proceedings against the ABC on behalf of an employee. Limits on the use of fixed-term contracts were introduced into the FW Act in 2023 (see our Insight)  

Martin v Cairns Rudolf Steiner School⁴

Ms Martin, a teacher at Cairns Rudolf Steiner School, commenced general protections proceedings in the Fair Work Commission (the FWC), alleging that the school took unlawful adverse action against her, including by dismissing her from her employment because she had, among other things, exercised her workplace right to disconnect.

Following an investigation into complaints Ms Martin raised, the school put allegations to her about her conduct. She said that she exercised her right to disconnect in the context of being asked to respond to those allegations during school holidays, when she was on leave. Her failure to respond to the allegations, despite seeking an extension, played a part in her ultimate dismissal.

After the matter was not resolved in the FWC, Ms Martin filed an application in the Federal Court. The matter has been referred to mediation. If it is unsuccessful, this case will be one to watch, as it will likely consider the right to disconnect provisions introduced last year and, in particular, whether adverse action was taken against Ms Martin because she exercised that right.

Media, Entertainment and Arts Alliance v Australian Broadcasting Corporation⁵

The MEAA has reported that it has commenced proceedings against the Australian Broadcasting Corporation (the ABC) on behalf of a digital producer employed to work on the Play School series. The producer is employed on a fixed-term contract, which the ABC recently extended for a third time in three years.

On 4 June 2025, the MEAA lodged its application against the ABC in the Federal Court, alleging that it had breached the fixed-term limits by using successive fixed-term contracts. In doing so, the MEAA says that the ABC was making a choice to 'shift risk' to workers in what it has described as the 'unstable' and 'insecure' media and creative industries. The matter remains before the Federal Court, following the MEAA being granted permission to amend its application on 30 June 2025. If this case proceeds, it will likely be one of the first to consider the limits of the fixed-term contract provisions in the FW Act.