Recent developments in employment law

The latest issues, decisions and proposed changes impacting business and workplace risk 16 min read

Fair Work Commission rejects privilege claim over workplace investigation report

By: Eden Sweeney and Hannah Woodfield

Production of external workplace investigation report ordered despite privilege claim

The Fair Work Commission (FWC) has ordered an employer to produce an external investigation report and associated materials after rejecting the employer's claim of legal advice privilege.¹ 

Key takeaways

• External workplace investigation reports are not automatically privileged. Legal advice privilege will not automatically attach to an external workplace investigation report simply because it is commissioned through an employer's lawyers or prepared by counsel.
• The focus will be on the employer's dominant purpose. In determining whether legal advice privilege applies, the focus will be on the employer's purpose at the time the report is commissioned and how the report is used (and not just their lawyers' stated purpose). Employers should be careful to clearly define and document an investigation report's dominant purpose and ensure its processes and communications reflect that purpose. A legal advice purpose may be undermined if an employer has already started an internal investigation prior to commissioning an investigation report.
• Over-disclosure regarding investigation outcomes can waive privilege. Even where privilege might otherwise apply to an investigation report, that privilege can be waived where the employer discloses more than the bare outcome of the investigation to complainants and respondents (such as disclosing the evidentiary basis of the findings). To ensure privilege is preserved, employers should carefully manage how investigation outcomes are communicated.

Background

An employee was employed as a community health worker by a not-for-profit community health organisation. Following a client complaint about the employee, the employer commenced an internal workplace investigation. During the investigation, the employer claimed he was not being afforded procedural fairness and refused to participate. The employer later sought legal advice regarding the complaint. The employer's lawyers engaged counsel to conduct an external investigation into the complaint, which was expressed to be for the purpose of providing legal advice. Counsel prepared an investigation report for the employer's lawyers, who then advised the employer in relation to that report.

Following the conclusion of the investigation, the employer notified the employee of the investigation outcome by letter, identifying which allegations were substantiated and the evidence relied on to make those findings, and imposing a written warning and performance improvement plan. The employee was later dismissed for failing to sufficiently improve his performance. The employee subsequently commenced dispute resolution proceedings and an unfair dismissal claim against the employer in the FWC and sought access to the external investigation report. The employer resisted production on the basis of legal advice privilege.

Decision

The FWC ordered the employer to produce the report and associated materials as the employer had not established that it commissioned the external investigation for the 'dominant purpose' of obtaining legal advice. While a legal advice purpose existed, the employer also had a substantial employment disciplinary purpose, namely determining whether misconduct had occurred and what the appropriate disciplinary action was (if any). This was supported by the fact that an internal investigation had begun before the report was commissioned. As a result, the report did not attract legal advice privilege.
The FWC decided further that, even if privilege had applied, it would have been waived by the employer's outcome letter to the respondent. By disclosing to the respondent which allegations were substantiated and the evidence and reasoning underpinning those findings, and in circumstances where the respondent was not being asked to respond before disciplinary action was taken, the employer went beyond what was necessary to communicate the outcome and acted inconsistently with maintaining confidentiality.

Same Job, Same Pay: scope of regulated labour hire arrangement orders 

By: Tegan Ayling and Nathan Shannan 

Federal Court considers who can be covered by Same Job, Same Pay orders

Recent decisions under the Same Job, Same Pay regime continue to shape how regulated labour hire arrangement orders (RLHA Orders) operate in practice, with the Federal Court confirming that such orders must be confined to the labour hire workforce the Fair Work Commission (FWC) identifies as being supplied, or will be, supplied to the host employer.²

Key takeaways

• RLHA Orders must be based on the labour hire roles identified and supported by evidence, rather than broadly defined by the coverage of the host enterprise agreement.
• Employers responding to, or seeking, Same Job, Same Pay applications should be prepared to clearly define and substantiate the roles being supplied, including any future supply.

Background

Under the Same Job, Same Pay regime:

• the FWC may make RLHA Orders where labour hire workers are supplied to a host employer whose direct workforce is covered by an enterprise agreement; and
• where an RLHA Order applies, the labour hire provider must pay those employees at least the rate they would receive if directly employed by the host under the enterprise agreement.³

In a recent case, the FWC made RLHA Orders covering labour hire employees at large mining sites.⁴ The evidence before the FWC concerned labour hire workers engaged in specific production roles. However, the RLHA Orders were drafted more broadly by reference to the coverage of the host enterprise agreements, rather than the roles supported by the evidence. The labour hire employer and the host employers subsequently challenged the scope of the RLHA Orders.

Full Federal Court decision

The Full Court of the Federal Court of Australia (Full Federal Court) set aside RLHA Orders made by the FWC in a recent decision,⁵ confirming that RLHA Orders must be confined to the class of labour hire employees the FWC identifies as being supplied, or to be supplied, to the host employer—ie the employees actually performing work for the host employer or that will be performing work for the host employer. In this case, the FWC accepted that the evidence was confined to labour hire workers performing specific production roles, but drafted orders that extended more broadly by reference to host enterprise agreement coverage. The Full Federal Court said this involved asking the wrong question and went beyond the FWC’s powers.

In practice, this decision confirms that the scope of RLHA Orders will be driven by how the labour hire workforce is defined on the evidence, rather than by enterprise agreement coverage alone. This is important for employers where there is a question about who should fall within the scope of RHLA Orders, which has consequences for rates of pay. It also creates a clear opportunity for employers to confine the reach of RLHA Orders by carefully identifying and evidencing the labour hire roles actually being supplied, or to be supplied. 

Fair Work Commission clarifies approach to genuine agreement

By: Katherine Dommerson and Virginia Dore

Full Bench clarifies meaning of 'sufficient interest' and 'sufficiently representative'

In two recent decisions, the Full Bench of the Fair Work Commission (FWC) considered the meaning of 'sufficient interest' and 'sufficiently representative' for the purpose of assessing whether an enterprise agreement was genuinely agreed to by employees covered by the agreement.

Key takeaways

• The relevant provisions of the Fair Work Act 2009 (Cth) (FW Act) require the FWC to undertake broad value judgments involving a considerable degree of subjectivity.
• The assessment is focused on ensuring that the voting cohort has a sufficient stake in the agreement and that the agreement was the result of a genuine and authentic exercise in agreement-making.
• The voting cohort does not need to cover every classification or type of employment provided for in an agreement, or employees working in every location, industry or sector in which the agreement may operate in order to be 'sufficiently representative', but it must have the collective capacity (informed by the skills, qualifications and experience of the employees in the voting cohort) to understand the terms of a proposed agreement and the effect of those terms across the scope of the agreement.

Requirement for genuine agreement

To approve a single-enterprise agreement (other than a greenfields agreement), one of the matters the FWC must be satisfied of is that the agreement has been genuinely agreed to by the employees covered by the agreement. In determining whether an enterprise agreement has been genuinely agreed to by employees, the FWC must:

• take into account the Statement of Principles on Genuine Agreement;⁶ and
• be satisfied that the employees requested to vote for the agreement have a sufficient interest in the terms of the agreement and are sufficiently representative of the employees the agreement is expressed to cover.

Innovative Asset Solutions (IAS)

In March 2025, the FWC refused to approve the IAS Enterprise Agreement 2024 (IAS Agreement), because the employees who voted on the agreement were all casual employees, while the IAS Agreement was expressed to also cover permanent employees. On this basis, the Commission decided the voting cohort was not 'sufficiently representative' and the IAS Agreement was not 'genuinely agreed'.

The Full Bench of the FWC overturned the decision on appeal.⁷ In doing so, the Full Bench highlighted several principles relevant to the assessment of 'sufficient interest' and 'sufficiently representative', including:

• Determining whether an agreement has been genuinely agreed involves a consideration of authenticity, including whether the employees who voted for the agreement had an informed and genuine understanding of what was being approved. This is an evaluative exercise, rather than an assessment of individual factors.
• The Statement of Principles does not operate as a checklist and does not limit the scope of the evaluative exercise to be undertaken by the Commission in determining whether it is satisfied that a genuine agreement has been reached. Instead, the Commission must have regard to all relevant matters which extends to 'anything logically bearing on whether the agreement of employees is genuine'.
• Agreements that extend greatly beyond the classifications, industries and rates of pay actually applicable to the employer and current employees to be covered by an agreement will likely not be genuinely agreed. However, it is not necessary that the group of employees voting on an enterprise agreement are employed in every classification and type of employment or working in every location, industry or sector where an enterprise agreement is capable of operating in order to be 'sufficiently representative'. Indeed, the Full Bench of the FWC noted a 'ground zero' approach that required employees to be employed in every classification would be too onerous and inconsistent with the objects of the FW Act.
• The characteristics of the employees who are requested to approve the agreement are relevant, including their work history, skills, qualifications and experience.
• The nature of the employer's business or enterprise, including its history, activities, the industries or sectors it operates in, its plans for growth or expansion and its bargaining history are also relevant to considering whether voters have a sufficient interest in an agreement or are sufficiently representative.

In overturning the first instance decision, the Full Bench of the FWC noted in respect of the IAS Agreement:

• The nature of the maintenance contracting business carried out by IAS is subject to peaks and troughs, and this provided a rational explanation for the all-casual voting cohort.
• While the relevant employees were only employed on a casual basis, the IAS Agreement contained casual conversion provisions and the evidence supported that at least some of the employees who approved the IAS Agreement had previously worked on a full-time basis in their past employment.
• There was no substantial change in the roles, duties or geographical scope of the IAS Agreement compared to its predecessor agreement. Additionally, the scope of the IAS Agreement, while broader than the predecessor agreement, related to industries in which IAS had previously operated.
• The voting cohort covered six of the eight classifications covered by IAS Agreement, and the Full Bench was satisfied that at least some of the employees who voted on it (or employees with similar skills) would likely work in all the levels of the classification structure in the IAS Agreement in the future, based on the needs of IAS clients.
• There was no suggestion the IAS Agreement was an 'instrumental Trojan Horse' and no evidence that the agreement-making process was inauthentic.

The Full Bench of the FWC concluded it was satisfied that the voting cohort was sufficiently representative and expressed a provisional view that it was satisfied the voting cohort was also sufficiently interested. The Full Bench invited the parties to make submissions regarding the remaining issues in contention that were not considered at first instance, including its provisional view on whether the voting cohort was sufficiently interested.

Skout Solutions

In a subsequent decision of the Full Bench of the FWC,⁸ the Commission dismissed an appeal by the AWU and CEPU against the approval of Skout Solutions Industrial Enterprise Agreement 2024, which had also been voted on by a cohort of casual employees. The unions appealed against the first instance decision that the agreement had been genuinely agreed to. In dismissing the appeal, the Full Bench cited the reasoning in IAS and reiterated a number of the key principles, including the FWC's role in ensuring that employees asked to vote on an agreement have sufficient stake in its terms and that the agreement was the result of a genuine and authentic exercise in agreement-making.

Federal Court dismisses $58 million general protections claim

By: Veronica Siow and Samuel Jackson

Roohizadegan v Technology One Ltd (No 6) [2025] FCA 1619

On 18 December 2025, the Federal Court dismissed a $58 million general protections claim brought by a former employee of Technology One under the Fair Work Act 2009 (Cth) (the FW Act).

Key takeaways

• In a general protections case, the key question in order to rebut the presumption under s361 of the FW Act concerns who made the decision to terminate. In this case, despite the employee initially advancing a case to the contrary, it was ultimately accepted that there was only one person who made the termination decision, and despite the management hierarchy, that individual was the only person with authority to make the termination decision.
• There may be other persons who may materially influence the termination decision. Their influence must reach the threshold within the range from essential or indispensable to material. In this case, it was found that none of those individuals influenced the decision-making in respect of the termination for one or more of any pleaded prohibited reasons.

Background

• Mr Roohizadegan was a senior sales manager at Technology One, an ASX-listed software company.
• Initially, Mr Roohizadegan was a 'spectacularly successful employee' and an 'exceptionally hard-working employee'. Over time however, Mr Roohizadegan's performance deteriorated significantly, which coincided with the deterioration of his mental health. Mr Roohizadegan was ultimately dismissed in 2016.
• Mr Roohizadegan subsequently commenced general protections proceedings in the Federal Court (Court) against Technology One. At the initial hearing, Mr Roohizadegan was awarded $5.2 million in compensation by the Court. However, a retrial was ordered on appeal. At the retrial, Mr Roohizadegan sought approximately $58 million in compensation.

Mr Roohizadegan's claims at the retrial

Broadly speaking, the claim brought by Mr Roohizadegan at the retrial included:

• multiple adverse action dismissal claims and various adverse action non-dismissal claims, including that Technology One had terminated Mr Roohizadegan's employment because he had exercised, or proposed to exercise, various workplace rights;
• a misrepresentation claim that he was induced to attend a meeting where he was terminated without disclosure of its true purpose; and
• a breach of contract/safety net claim by failing to pay him the incentives which he alleged he was entitled to under his employment contract.

Decision

In respect of the adverse action claim, the Court held that Mr Roohizadegan had failed to establish some of the workplace right claims as objective facts. For the balance of the workplace right claims that were able to be established as objective facts, the Court held that Technology One had rebutted the presumption under s361 of the FW Act. In particular, the Court accepted that the reasons for Mr Roohizadegan's termination were 'perfectly lawful', including because of Mr Roohizadegan's 'well-established and documented poor economic performance', his 'persistent inability to accept decisions' of senior managers, an 'inability to integrate into organisational change', and a 'damning assessment of morale and employee relations' that had been made by the then human resources business partner. Critically, the Court held that Mr Roohizadegan was not terminated because he had exercised, or proposed to exercise, his workplace rights.

As to the misrepresentation claim, the Court found that this claim must fail because it was not satisfied that Mr Roohizadegan had been misled.

Finally, in respect of the breach of contract claim, the Court held that Mr Roohizadegan did not have a contractual right to be paid additional incentives, including because the parties had not objectively intended for those additional incentives to be included in the calculation.

Ultimately, Mr Roohizadegan's claim was dismissed in its entirety.

Profit share arrangement in employment agreement schedule found to be binding

By: Tarsha Gavin, Lawrence Mai and Phoebe Drake

HealthX Group Pty Ltd v Palling (No 2) [2025] FCA 1300

The Federal Court of Australia (Federal Court) has found that a 'profit share' scheme, referred to only in the schedule of an employment contract, provided an employee with a contractual entitlement to receive a share of the employer's profits.

Key takeaways

• Employment contracts need to be carefully drafted to ensure they capture the true intention of the parties with respect to incentive arrangements and how they are intended to operate.
• Amongst other factors, the context and purpose of an agreement are relevant matters to consider when interpreting the terms and conditions of an employment contract.

Background

A former General Manager of HealthX was engaged under an employment contract that contained a schedule setting out various items referenced throughout the contract. In particular, item 10 of the schedule:

• provided that all 'General Managers will participate in a profit share arrangement that will see achievable opportunity to receive a significant share in their Channel's Profit'; and
• outlined the 'gates' that needed to be satisfied before the profit share could be 'accessed'.

The profit share scheme was not otherwise referred to in any other section of the employment contract.

A dispute arose between the former employee and HealthX as to whether item 10 of the schedule gave rise to a contractual entitlement for the former employee to receive a share of HealthX's profits upon satisfying the 'gates'. HealthX subsequently commenced proceedings in the Federal Court seeking a declaration that it was not required to pay the former employee amounts arising from item 10 of the schedule on the basis that the profit share scheme was a 'bonus' and that any payment would be discretionary in nature.

Decision

The Federal Court rejected HealthX's claim that the profit share scheme was a discretionary bonus. In doing so, the Federal Court said that:

• the principles relevant to the interpretation of commercial contracts also apply to the interpretation of employment contracts. This involves an objective consideration of the terms and conditions of the employment, including the context and purpose of the contract.
• where an arrangement has been reached between an employer and an employee to share the profits of the business, and that arrangement has been incorporated into the employment contract itself (even if it is a schedule to the contract), the employee may reasonably expect to have a contractual entitlement to the specified share.
• item 10 of the schedule did not contain any language suggesting the payment of any profit share would be discretionary on the part of HealthX.

As a result, HealthX was ordered to pay the former employee an amount of $366,405.20 in damages, which equated to the amount she would have received under the profit share scheme.  

Suppression orders: some recent trends in employment cases

By: Sayomi Ariyawansa and Annabelle Elliott-Hall

Recent decisions highlight confidentiality as a potential tool to support settlement

Recently, the Federal Court of Australia has granted a number of temporary suppression orders at the early stages of employment proceedings where maintaining confidentiality has been seen as likely to help support pre-trial settlement.

Key takeaways

• Recent decisions demonstrate an increasing willingness by the Federal Court to grant temporary suppression and non-publication orders prior to court-ordered mediation where confidentiality is considered likely to facilitate early settlement.
• These decisions have reinforced that early settlement is in the interests of the administration of justice, and a temporary suppression order may be justified on the basis that confidentiality will increase the likelihood of reaching a settlement outcome.
• Where early settlement is achieved, the court has also granted extended post-settlement suppression orders to continue to preserve confidentiality.

Pre-mediation suppression: protecting settlement prospects

In two recent cases involving alleged contraventions of the Fair Work Act 2009 (Cth),⁹  the Federal Court granted temporary suppression and non-publication orders at the early stages of proceedings. In each case, media organisations sought access to documents on the court file, prompting the employer respondents to apply for suppression orders over the pleadings and related material on the basis that public access at that point would undermine the effectiveness of upcoming court-ordered mediations.

In granting the orders, the court applied the reasoning and conclusions in the case of Saw v Seven Network,¹⁰  which relevantly recognised that:

• the proper administration of justice includes the resolution of disputes by settlement, not only their determination by trial;
• there is a strong public interest in facilitating settlement, particularly in early-stage proceedings; and
• where confidentiality is likely to enhance settlement prospects, restricting public access to pleadings may be necessary to avoid prejudice to the administration of justice.

By contrast, in Young v Accenture,¹¹  the court declined to make pre-mediation suppression or non-publication orders, notwithstanding its acceptance of the public interest in facilitating early settlement. In that case, as many of the allegations were already in the public domain, the court concluded that confidentiality had been lost and that further suppression would not meaningfully assist settlement.

Post-settlement suppression: maintaining confidentiality after resolution

There have also been other instances where the Federal Court has extended suppression orders following settlement, such as in Saw v Seven Network (Post-Settlement Suppression Orders),¹² where the court granted extended suppression orders after the parties reached settlement at mediation, following earlier interim orders made to protect the mediation process. In doing so, the court accepted that maintaining confidentiality was necessary, both to give effect to the agreement reached and to encourage settlement in future cases, recognising that respondents may be reluctant to resolve disputes unless assured that untested and potentially damaging allegations will not later enter the public domain.