HR Law

In the recent decision of Ranya Aljobouri v Cosmetique Cosmetic Clinics (Services) Pty Ltd [2025] FWC 2987 (7 October 2025), the Fair Work Commission provided guidance on how the treatment of different engagements with the same employer will affect an employee’s ability to bring an unfair dismissal claim, where combined earnings are above the high-income threshold. The Applicant was employed as a General Manager of the Respondent. In addition, the Applicant was simultaneously engaged under an independent contractor agreement as both a Director and Chairperson of the Respondent’s Clinical Governance Committee (“CGC role”). After the Applicant’s employment with the Respondent ended in May 2025, the Applicant brought an unfair dismissal claim. The Respondent brought a jurisdictional objection on the basis that the Applicant’s earnings were above the high-income threshold ($175,000 at the time of dismissal), when the income associated with her General Manager position and CGC role were combined.   In bringing this objection, the Respondent argued that the Applicant’s engagement in the CGC role was in fact an employment relationship. The Respondent relied on the Closing Loopholes Act 2023, arguing that when assessing the true nature of the relationship, it was clear that it was one of employment.   Further, the Respondent argued that the CGC role was an extension of the General Manager employment relationship (i.e. the two roles formed a single employment relationship) arguing the functions the Applicant undertook pursuant to the CGC role complemented the duties she was required to perform under her employment agreement as General Manager and were undertaken in parallel with those duties.   In the Applicant’s submissions, she rejected the Respondent’s reliance on the Closing Loopholes Act 2023, arguing the Act was designed to prevent sham contracting and the Respondent was now attempting to retrospectively disguise a genuine contractor arrangement as employment in order to defeat the Applicant's unfair dismissal rights.   Upon assessing the nature of the CGC role, the Commission found that the CGC role held by the Applicant was not an independent contractor arrangement but should be properly classified as an employment relationship.    However, the Commission further determined that the General Manager and CGC role were sufficiently distinct roles such that the Applicant should be regarded as being in a dual employment situation.  Accordingly, the Applicant’s earnings in her CGC role were not relevant for the purposes of assessing whether the Applicant earned over the high-income threshold.   As the Applicant’s earnings in her General Manager position were under the high-income threshold, there was therefore no jurisdictional impediment to the Commission dealing with the merits of the Applicant’s claim.   To read the decision, click on the link below.   https://lnkd.in/gyfs_pe3

On 9 October 2025, Treasurer Jim Chalmers introduced two new superannuation laws, which will affect when employers are required to pay superannuation, and the consequences of late payments. Under the new Treasury Laws Amendment (Payday Superannuation) Bill 2025 (“Bill”), it is proposed that from 1 July 2026, employers must pay their employee’s superannuation contributions within seven (7) calendar days of paying the relevant wages. If passed, this would overrule the current framework, which requires employers to pay their employees’ superannuation contributions at least four times per year. This Bill has been introduced to create "a strong incentive for employers to make super contributions for their employees at the same time as they pay the employee's qualifying earnings". In the Explanatory Memorandum, the Treasurer provided that this new requirement will result in an extra $6,000.00 toward the median 25-year-old income earner’s superannuation fund by retirement due to “more frequent and earlier super contributions that will grow and compound over their working life". In addition, the Superannuation Guarantee Charge Amendment Bill 2025 was introduced, which redesigns the current Superannuation Guarantee Charge (“SGC”). In the Explanatory Memorandum, the Treasurer stated, the redesigned SGC “will deliver significant consequences for employers that repeatedly fail to pay their workers or let super go unpaid for long periods of time, and it will make sure that workers are accurately compensated for lost earnings if their employer is late in paying their contributions”. If you require advice on how these proposed changes will affect your business, contact HR Law via [email protected] To view the Treasury Laws Amendment (Payday Superannuation) Bill 2025 Homepage, click here: https://lnkd.in/gt-7DuJi To view the Superannuation Guarantee Charge Amendment Bill 2025, click here: https://lnkd.in/g65phrMx

The Australian Government has introduced the Fair Work Amendment (Baby Priya’s) Bill 2025 (“Baby Priya’s Bill”), amending the Fair Work Act 2009 (Cth) (“FW Act”) to introduce a new principle that, unless employers and employees have expressly agreed otherwise, employer-funded paid parental leave (“PPL”) must not be cancelled in the event a child is stillborn or dies soon after birth. Under both the FW Act and the Paid Parental Leave Act 2010, an employee remains entitled to unpaid parental leave and government-funded PPL if their child is stillborn or dies soon after birth. However, employer-funded PPL, negotiated between employers and employees, was not subject to these requirements. Accordingly, Baby Priya’s Bill brings employer-funded PPL in line with government-funded PPL. Baby Priya’s Bill is named after a premature baby girl who passed away six weeks after her birth, whose mother was denied her employer-funded PPL. The Baby Priya’s Bill, if passed will amend the FW Act to remove inconsistencies by expressly stating that employers cannot cancel PPL when: ·            a child is stillborn and the worker would have been entitled to employer-funded PPL if the child had been born alive; or ·            a child dies while the worker is on employer-funded PPL, or during a period of time the employee could have accessed employer-funded PPL. This would mean that an employer would not be permitted to, because of a stillbirth or death, refuse to approve an employee’s leave, refuse to pay the period of leave or cancel any part of that leave, including after the leave has commenced, unless the terms and conditions of the employee’s employment: ·            expressly allow an employer to refuse or cancel employer-funded paid parental leave because of stillbirth or death of an employee’s child, or ·            expressly provide that the employee is not entitled to employer-funded paid parental leave because of stillbirth or death of the employee’s child previously expressly provided for in the employee’s terms and conditions); or ·            expressly provide that the employee is entitled to other leave that is expressly available in the event of stillbirth or the death of an employee’s child (note: standard unpaid parental leave and compassionate leave is not ‘other leave’). However, this exception would not apply if an employer has unilaterally varied an employee’s existing terms and conditions of employment after the new section commences to allow for refusal or cancellation. If you require advice on how these proposed changes will affect your business, contact HR Law via [email protected] To access the Fair Work Amendment (Baby Priya’s) Bill 2025 Homepage, click on the link below. https://lnkd.in/gDQXDgNP

📌 Significant WFH test case listed for February 2026 The Fair Work Commission (“FWC”) has listed a February 2026 Hearing date for a landmark working from home (“WFH”) test case, which will consider the insertion of WFH terms into the Clerks – Private Sector Award 2020 (“Clerks Award”). This test case was initiated by the FWC in September 2024 following the identification in the Modern Awards Review 2023–24 Final Report that the development of a WFH provision in the Clerks award was a matter of priority. This test case will likely serve as a model WFH clause for other Modern Awards and will focus on facilitating and enshrining flexible working arrangements for employers and employees covered by the Clerks Award. To date, the FWC has received submissions from various stakeholders including employer stakeholder groups such as the Australian Industry Group, Australian Chamber of Commerce and Industry, the Australian Business Industrial/Business NSW and unions including the Australian Services Union, Australian Council of Trade Unions and the Community and Public Sector Union. Employer Groups have requested: ▪️ WFH entitlement to be subject to agreement or employer discretion, and not an absolutely right ▪️ Clear and practical WFH terms with flexibility and exceptions ▪️  Removal/Waiver of penalty rates and other allowances for WFH employees Unions have requested: ▪️ Presumed WFH rights ▪️ Notice periods regarding returning to office or changes e.g. six (6) months’ notice ▪️ Safeguard of modern award entitlements ▪️ If WFH requests are made, employers to have a default bias in favour of approving requests, where requests are considered on a case-by-case basis. You can access all documents to this case on the link below: https://lnkd.in/gSnhyWUN We will keep you updated as this matter progresses.

The recent Fair Work Commission (“FWC”) case of Mr Branden Deysel v Electra Lift Co. [2025] FWC 2289 warns applicants of the “obvious danger” of relying on artificial intelligence for legal advice. In the case, a former Electra Lift Co worker (“Applicant”) sought to extend time to dispute his 2022 dismissal with an application drafted by AI large language model Chat GPT. The Applicant, who resigned from Electra in October 2022, confirmed that he had used Chat GPT when preparing his unfair dismissal application. The application had major deficiencies, including: ▪️ Being lodged almost two and a half years after the 21-day statutory deadline; ▪️ no evidence being presented to support his claim that Electra might have retaliated if he pursued a case against Electra; and ▪️ a finding from Deputy President Slevin that there was “no basis” for Chat GPT’s advice to make an application under s 365 of the Fair Work Act 2009 (Cth). In reaching his decision, Deputy President Slevin considered the “use of, and reliance upon, Chat GPT to bring what appears to be an altogether unmeritorious claim” was “hopeless” and “unnecessarily wasting” the FWC and Electra’s resources. Further, allowing the claim to proceed was also a factor in rejecting the application given the prejudice this would cause Electra. This case serves as a reminder that: - ignorance of deadlines is “no reason for delay” and;   - legal advice should be sought from legal professionals when required. You can access the Decision here: https://lnkd.in/gPqW8ybM

In a significant ruling, the Federal Court of Australia has offered guidance on various matters relating to wage and modern award compliance, including the use of set-off clauses in employment contracts. The case, Fair Work Ombudsman v Woolworths Group Limited & Ors; Baker v Woolworths; Pabalan v Coles Supermarkets Australia Pty Ltd [2025] FCA 1092 (“Decision”), has extensive implications for employers who pay workers an annual salary to meet modern award obligations. HR Law recently posted an article on the Decision, which you can access via the link below. https://lnkd.in/gRD6vcV5

In the recent decision of Mr Firas Raghib v Stantec Australia Pty Ltd [2025] FWC 2335 (13 August 2025), the Fair Work Commission (“FWC”) upheld the summary dismissal of a senior HR business partner, finding that he fabricated a text message in an attempt to discredit a complainant and mislead his employer. Despite identifying procedural deficiencies in the dismissal process, the Commission determined that the seriousness of the misconduct outweighed those deficiencies. Background: In February 2024, a subordinate HR worker (“Complainant”) lodged complaints alleging that the senior HR business partner: ·       exercised coercive control over the Complainant’s personal time; ·       addressed her as “girl,” which the Complainant considered ‘infantilising’; ·       questioned her “obsessively” about whether she had relationships with male colleagues; and ·       attempted to make the Complainant feel indebted to him for her job by making comments including that “the only reason she hadn’t lost her job that day was because he stuck his neck out for her…she came very close to being fired…she was on her last chance, that he was very disappointed in her, and that she needed to do better for him, and she needed to be careful around men in the office”. In March 2024, the senior HR business partner commenced a prolonged period of absence from work, supported by medical certificates. In February 2025, the senior HR business partner produced a screenshot purporting to show that the Complainant had sent him a text message apologising for fabricating her complaint. The Complainant denied sending the text message and provided phone records confirming no such communication occurred. Deputy President Masson found that the alleged message was “a complete fiction … a cynical fabrication designed … to discredit and undermine the complainant and the disciplinary process.” The Commission concluded that the senior HR business partner had changed his work mobile’s contact name to be the Complainant’s to deliberately fabricate the text message. The Decision Although the Company failed to provide the senior HR business partner with an opportunity to respond to the allegations regarding the fabricated text message, Deputy President Masson determined that the outcome would not have changed. Deputy President Masson concluded that, among other matters: ·       the fabricated text message was an act of serious misconduct; and ·       procedural deficiencies were outweighed by the gravity of the misconduct. Accordingly, the Commission rejected the unfair dismissal claim and upheld the Company’s decision to summarily dismiss the senior HR business partner. To read the case, click on the link below. https://lnkd.in/gG-gdZsG

In a recent decision of the Queensland Industrial Relations Commission, a waitress who was sexually harassed and assaulted by her boss was awarded $140,000.00 in general damages, $10,000.00 for aggravated damages and $26,500.00 in legal costs.     The worker had been employed since 2018 at Oishi Teppanyaki & Café Pty Ltd and worked alongside the owner and his wife. The worker claimed the owner had engaged in sexual harassment per section 119 of the Queensland Anti-Discrimination Act as he had propositioned and inappropriately sexually touched the worker.     The Tribunal regarded the respondent’s conduct as “predatory and engaged in for his own wanton gratification”. Deputy President Catherine Hartigan further noted the conduct was a major abuse of power within an employment relationship. In particular, the nature of the physical conduct, which was described as a “serious and gross violation of (the applicant’s) person and her right to be free from sexual harassment” was a serious consideration to the general damages awarded. Additional aggravated damages were awarded due to deliberate actions of the owner, particularly locking the doors, which prevented the worker from leaving and instilling in her significant fear and fright.     The Tribunal’s quantum of damages and costs demonstrates a move towards significant compensation amounts for workplace sexual harassment. It indicates the reinforcement of the collective effort to address and appropriately punish both perpetrators and employers for sexual harassment.     This case reinforces the obligations of employers to provide safe working conditions, and the significant financial and legal consequences that arise when sexual harassment occurs within the workplace.     To read the case, click on the link below.  https://lnkd.in/gSrisQUT

Costs for worker after HR consultant "embellished" case   The Fair Work Commission (“FWC”) has awarded indemnity costs against an employer after finding the employer acted vexatiously and without reasonable cause in defending an unfair dismissal claim brought by a former manager.   Background – Unfair Dismissal Claim Successful   Last year, Commissioner Hunt ordered Companion Systems Pty Ltd (“the Company”) to pay its former manager, James Camenzuli (“Mr Camenzuli”) $34,660.00 plus superannuation for unfairly dismissing him.  Commissioner Hunt heavily criticised the "astonishingly poor" actions of the Company’s HR consultant, finding that this meant Mr Camenzuli’s redundancy process “descended into accusations of serious misconduct”.   Notably:   The HR consultant falsely claimed that Mr Camenzuli had sent malware to the Company when, in fact, he had merely provided an Australia Post receipt confirming return of a Company mobile phone.  This false claim was repeated in oral evidence, despite clear documentary evidence to the contrary.   The HR consultant also attempted to contact Mr Camenzuli’s new employer under the false pretence of conducting a reference check.  Commissioner Hunt described this as “astonishing conduct,” noting that the proper course of action would have been to request redacted payslips if the Company wished to verify mitigation of loss.  Commissioner Hunt concluded that these actions were intended to harass or embarrass Mr Camenzuli, or pressure him into withdrawing his unfair dismissal claim.   The Decision   More recently, Commissioner Hunt turned her attention to Mr Camenzuli’s cost application and found that whilst parties ordinarily bear their own costs in FWC proceedings, there are exceptions contained within the Fair Work Act 2009 (Cth) (“FW Act”).  Specifically:   section 400A – where a party causes costs through an unreasonable act or omission; and   section 611(2) – where a party responds to a claim vexatiously, without reasonable cause, or with no reasonable prospect of success.   Commissioner Hunt assessed these sections in depth and found that the Company had breached both sections by defending the claim vexatiously and without reasonable cause as well as causing unnecessary legal costs through unreasonable conduct. To read the case, click on the link below. https://lnkd.in/gWrKAxHb  

Deleted CCTV footage undermined sacking: FWC    The Fair Work Commission (“FWC”) has criticised the Transport Canberra and City Services Directorate (“TCCS”) for unfairly dismissing a long-serving bus depot cleaner, Mohamed Shehata (“Mr Shehata”), over an alleged theft of a handbag, especially after “key CCTV footage” of the alleged incident was deleted.    Despite having a clean record for the entirety of his 20-year employment with TCCS, Mr Shehata was terminated after a colleague claimed to have seen him steal a handbag left on a bus.   A blurry CCTV image showed Mr Shehata holding the handbag, and the colleague said he saw Mr Shehata running with it toward the car park.  However, Mr Shehata explained that he picked up the handbag while cleaning the bus during a 14-hour shift, and after receiving a stressful call from the hospital about his disabled son, he went to his car to get medication for reflux, whilst still holding the handbag.  Mr Shehata stated that prior to leaving to go to the hospital, he placed the handbag in the lost property bin.  Mr Shehata also claimed he had a “strained” relationship with the colleague who made the accusations and alleged that past comments made by the colleague may have been racially motivated.    Mr Shehata’s long-time manager highlighted Mr Shehata’s integrity and noted he had always handed in lost property and would be unlikely to steal.    Deputy President Dean found that TCCS relied on “weak and unclear CCTV evidence”, which she described as "unsafe conjecture".  The Deputy President held that the footage did not show Mr Shehata stealing the handbag or failing to return it.  Importantly, the Deputy President noted that the more reliable footage that could have clarified the situation had been deleted, which TCCS could have, but failed to, preserve.  Additionally, the Deputy President accepted that the colleague who reported Mr Shehata did not get along with him and did not, in fact, witness Mr Shehata steal the bag, and accordingly the colleague’s account "ought to have been treated with some caution in the circumstances".    The Deputy President ruled that the dismissal was harsh, unjust, and unreasonable, and ordered Mr Shehata to be reinstated with full continuity of employment and back pay.    To read the case, click on the link below. https://lnkd.in/gY55PTAS