The latest issues, decisions and proposed changes impacting business and workplace risk 11 min read
What's on the horizon in 2026?
By Tarsha Gavin, Olivia Mueller and Lucas Perrignon
Payday super, NES review and changes to parental leave
As we move through 2026, here is a round-up of several reforms to, and reviews of, Fair Work legislation, and the federal superannuation scheme that may affect employers this year.
Payday Super scheme commences on 1 July 2026
On 4 November 2025, two Bills were passed to amend the Superannuation Guarantee (Administration) Act 1992 (Cth) and related legislation, to increase the regularity of employer superannuation contributions (Payday Super). From 1 July 2026, employers will be required to comply with the long-awaited Payday Super reforms.
Key features of the reforms include:
- introduction of a new 'qualifying earnings' concept, which determines the amount on which superannuation contributions are calculated;
- reduction of the timeframe for making superannuation contributions, from 28 days to seven business days of a 'qualifying earnings' payment being made; and
- the ability for employers to deduct late payments and the super guarantee charge for income tax purposes.
The Australian Taxation Office (the ATO) released draft guidance on its proposed compliance approach in October, and is continuing to refine it in advance of the Payday Super scheme taking effect. For more information on Payday Super, see our November 2025 Insight.
Further changes to paid parental leave entitlements
From 1 July 2026, this entitlement will increase by a final two weeks, to a total of 26 weeks.
On 3 November 2025, the Fair Work Amendment (Baby Priya’s) Bill 2025 was passed, requiring employers to honour paid parental leave in the event of a stillbirth, or in circumstances where an employee's child dies and the parent would have otherwise been entitled to leave. This legislation took effect on 7 November 2025.
Parliamentary inquiry into the National Employment Standards
On 28 November 2025, the House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training launched an inquiry into the operation and adequacy of the National Employment Standards (NES). The purpose of the inquiry is to determine whether the NES continues to meet the needs of workers, employers and the broader economy. The terms of reference of the inquiry include looking at:
- the extent to which the NES is fit for purpose, having regard to the changing nature of work;
- the role of the NES in promoting the object of the Fair Work Act 2009 (Cth);
- the adequacy, relevance and coherence of NES entitlements, and their effectiveness and application;
- the interaction between the NES and other workplace instruments, including modern awards, enterprise agreements and individual flexibility arrangements; and
- the types of workers covered by the NES, and consideration of differences in experience of the NES between different demographics of workers.
Requests for flexible working arrangements, casual employment, parental leave, and family and domestic violence leave are excluded from the terms of reference of the inquiry.
Submissions to the inquiry are currently open until 27 February 2026.
Victorian non-disclosure agreements in sexual harassment cases to be restricted
By Eden Sweeney and Reuben Gregg-McQueen
Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025
Following various calls for reform and a commitment it made in 2022, the Victorian Government has passed the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Act 2025 (the Act), to restrict the use of non-disclosure agreements in circumstances where there has been workplace sexual harassment.
Key takeaways
- The Act is expected to commence on 1 November 2026, unless the Governor proclaims an earlier commencement date. The Victorian Government has expressed an intention for it to commence earlier, on 1 July 2026.
- The Act will prohibit employers from requiring employees to sign a non-disclosure agreement (NDA) as a condition of receiving a financial settlement in connection with allegations of sexual harassment. NDAs will only be permissible if the requirements of the Act are met.
- It will also prohibit employers from agreeing to keep findings of sexual harassment confidential as part of the terms of a respondent employee's separation.
Requirements for a valid NDA
A valid NDA will only be permissible if it meets the following requirements under the Act:
- A complainant must have requested the NDA.
- Before entering into the NDA, complainants must be given a copy of an NDA information statement (to be published by the Victorian Government), which will contain information about the operation of the Act.
- Complainants must be given a period of at least 21 days to review the NDA (unless the complainant chooses to waive this period).
- Before entering into the NDA, each party to the agreement must acknowledge in a form that the preconditions for the NDA under the Act have been met.
- It must be written in plain language.
- The complainant's employer, the respondent, or a person acting on behalf of these persons, must not have exerted undue influence or pressure on the complainant to enter into, or to request to enter into, an NDA.
Even when a valid NDA is in place, complainants will be permitted to disclose material information about workplace sexual harassment to certain individuals and bodies, including friends or family, employers or prospective employers, Victoria Police, the Fair Work Commission and other related government bodies.
Prohibition on NDAs between an employer and a respondent
The Act also contains prohibitions with respect to NDAs entered into between a complainant's employer and a respondent. In particular, the Act prohibits entrance into an NDA that would prevent:
- an investigation into workplace sexual harassment; or
- the employer from disclosing material information about substantiated workplace sexual harassment to a prospective employer of the respondent.
Termination of NDAs by complainants
Complainants may terminate an NDA after the first anniversary of the date on which the NDA was entered into by giving seven days' written notice to each party to the NDA.
Greens propose new work-from-home rights
By Sarah Lunny and Hannah Woodfield
Fair Work Amendment (Right to Work from Home) Bill 2025
In November 2025, the Greens introduced the Fair Work Amendment (Right to Work from Home) Bill 2025 (the WFH Bill), which proposes to amend the flexible working arrangements provisions of the Fair Work Act 2009 (Cth) (the FW Act)
Key takeaways
- If passed, the Bill will introduce a right for all employees to request to work from home for up to two days per week.
- Under the current draft legislation, employers could only refuse a work-from-home request if the requested change would make the performance of the employee's inherent duties impractical or impossible.
Key features of the WFH Bill
Under the existing flexible working arrangements provisions of the FW Act, there is no general right to request to work from home, and employees can only make a request for flexible working arrangements where they satisfy certain conditions, such as being pregnant, having a disability, having caring responsibilities, being 55 years of age or older, or experiencing family and domestic violence.
If Parliament passes the WFH Bill, the existing flexible working arrangements provisions of the FW Act would be amended to provide for:
- Right of request: employees could request to work from home, or remotely, for up to two days per week.
- Change to eligibility limits: the existing eligibility limits (relating to age, disability etc.) to make a flexible working arrangements request would be removed, so that all employees could make a request for flexible working arrangements, including but not limited to a request to work from home.
- Scope to refuse requests: under the current provisions, employers can refuse a request for flexible working arrangements on 'reasonable business grounds'. Although this threshold would continue to apply to requests for flexible working arrangements other than work-from-home requests, employers could only refuse a work-from-home request if the requested change would make the performance of the employee's inherent duties impractical or impossible, representing a significantly higher bar than the 'reasonable business grounds' test.
- Reasonable adjustments: when deciding whether a request to work from home would make the employee's performance of their inherent duties impractical or impossible, employers would be required to consider any reasonable adjustments to accommodate the request.
- Disputes: the Fair Work Commission would be empowered to hear disputes relating to the refusal to grant work-from-home requests and make binding determinations.
What's next?
The WFH Bill has been referred to the Senate Standing Committee on Education and Employment for inquiry and report. Submissions to the review closed on 12 February 2026, with the Committee set to report back on 26 March 2026.
Compliance remains key for flexible work arrangements
By Tegan Ayling and Jared Simonis
Recent cases involving flexible work arrangement requests
When it comes to managing requests for flexible work arrangements (FWA), decisions in the Fair Work Commission (the FWC) have continued to emphasise the importance of strict compliance with statutory requirements.
Key takeaways
- An employee can only make a valid FWA request if it is sufficiently linked to a circumstance recognised under the Fair Work Act 2009 (Cth) (FW Act) (eg if the employee is aged 55 or older) that exists at the time the request is made.
- In refusing an FWA request, employers must have genuinely considered the request, be able to demonstrate reasonable business grounds that are relevant to the request and explain why alternatives are unavailable to the employee.
FWC reflects on common pitfalls of flexible work arrangement disputes
Recent guidance from the FWC in 2025 highlights the usefulness of trialling flexible arrangements on a temporary basis, and the importance of both employees and employers complying with strict statutory requirements. Employers, in particular, have a number of statutory obligations when managing and responding to requests, including to explain how its reasonable business grounds and the unavailability of alternative options justify refusing a request. Recent decisions highlight that structured dialogue and compliance with statutory requirements are important.
Recent cases
In one recent case, the FWC agreed to refuse a FWA request for a utility trade worker on reasonable business grounds. The worker, who had relocated for family reasons, sought to work remotely one week per month for 10 months, to spend more time with his school-aged children. The employer had previously agreed to a similar temporary arrangement, but rejected the second request, due to safety and operational concerns—including its 'lone worker policy', which required a buddy system and the fact that the worker needed to be on site to perform key duties.
The FWC upheld the employer's decision because the FWA request was not sufficiently connected to a recognised circumstance, as it was effectively made so the worker could spend more time with his family and not because he had carer's responsibilities. The employer's safety obligations and business impacts also justified its refusal, as at least 80% of the worker's duties required physical attendance, and accommodating the request would impose significant cost and operational disruptions. Further, if the request was granted, another employee would need to neglect their own tasks to accompany other workers during inspections, requiring the employer to incur significant cost in paying higher duties allowances.
In another recent case, the FWC decided that it did not have jurisdiction to arbitrate a FWA dispute because the employee's request was not valid under the FW Act at the time it was made. The worker had requested a compressed working week and hybrid working arrangements based on being 55 or older, but at the time of the request, he had not yet reached that age. The FWC concluded that the relevant circumstance entitling an employee to make a FWA request must exist at the time the request is made. As the worker had not yet reached the age of 55, the request was invalid.
Fair Work Ombudsman continues to strengthen enforcement approach
By Emma Gillman and Angelina Sporer
Insights from FWO's 2024–25 annual report
Late last year, the Fair Work Ombudsman (the FWO) released its 2024–25 annual report (the Report), which provides insights into the FWO's strategic enforcement approach, compliance trends and key regulatory developments.
Key takeaways
- The FWO's current approach to compliance and enforcement continues to involve a mix of providing education and advice to employers, encouraging voluntary compliance and taking enforcement action for serious breaches.
- The FWO now has the ability to investigate criminal wage underpayment matters and has set up a Criminal Investigations Branch to do so.
Compliance and enforcement
In 2024–25, the FWO's approach to compliance and enforcement was centred around its stated objectives of encouraging voluntary compliance through education and advice, guiding compliance by issuing direction and notices to employers, and enforcing compliance through the various enforcement tools it has available.
Over the 2024–25 period, its key compliance and enforcement activities involved:
- issuing 1,220 compliance notices and 743 infringement notices to employers;
- initiating 73 litigations, including securing its largest-ever court-ordered penalty ($15.3 million) against an employer for deliberately underpaying employees (which included vulnerable migrant workers) more than $650,000;
- entering into eight enforceable undertakings, half of which were with universities; and
- recovering over $358 million in unpaid wages for 249,000 workers.
The FWO has indicated that it will continue to focus on its compliance and enforcement priorities and, in the 2025–26 year, is targeting high-risk industries and sectors, including aged care services, agriculture, building and construction, disability support services, fast food, restaurants and cafés, large corporates and universities.
With the introduction of a criminal underpayments offence into the Fair Work Act 2009 (Cth) from 1 January 2025, the FWO has also invested in establishing a new Criminal Investigations Branch, implementing new technologies and resources to undertake criminal investigations, and delivering education programs to inform the community about the wage theft reforms.