01 Dec HR LAW NEWSLETTER – NOVEMBER 2025
In the November 2025 HR Law Newsletter, we discuss updates on the Victorian Government’s Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 as well as the recent decision on Westpac’s working from home agreements. We also look at how to prepare for the upcoming Christmas and New Year festive season.
New Law: Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 (“Bill”)
The Victorian Government has introduced a Bill to promote the health, safety and welfare of persons at work by placing restrictions on the use of non-disclosure agreements (“NDA”).
Restrictions apply to the following:
- The circumstances in which an NDA relating to workplace sexual harassment can be entered into.
- The terms that may be included in an NDA relating to workplace sexual harassment.
- The enforceability of an NDA relating to workplace sexual harassment.
In 2021, the Victorian Ministerial Taskforce on Workplace Sexual Harassment (“Taskforce”) was created to develop reforms to improve preventative measures and responses to workplace sexual harassment. The Taskforce suggested legislative amendments to restrict the use of NDAs to conceal workplace sexual harassment.
Danny Pearson, the Victorian Minister for Finance and Economic Growth and Jobs, highlighted that NDAs relating to workplace sexual harassment are often signed by complainants in a “state of distress, and [they] do not comprehend at the time the long-lasting implications of confidentiality”.
The Bill is centred around “complainant’s choice” to alleviate the power imbalance between complainants and their employers. It also seeks to address the issue of NDAs being used as a blanket solution to workplace sexual harassment matters.
The Bill will amend current legislation to reflect the following:
1. A complainant can terminate their NDA relating to workplace sexual harassment 12 months after signing it to allow for disclosure of material information.
2. A complainant is to give seven (7) days’ notice to their employer when terminating their NDA.
3. An NDA can only be entered into if the complainant requests it.
4. An employer cannot pressure a complainant into signing an NDA by proposing a higher or lower settlement amount with or without an NDA or suggesting that it will be hard to find a job without an NDA.
5. An employer must provide the complainant with a “workplace non-disclosure agreement information statement” and a minimum 21-day review period before finalising an NDA. The review period can be waived or shortened by the complainant.
6. An NDA must be written in plain language.
7. The complainant must be provided with a copy of the signed NDA.
8. The complainant will now be able to disclose information to a list of persons to whom a ‘permitted disclosure’ applies to, including medical or legal practitioners, mental health and wellbeing professionals, friends and family who agree to keep the information confidential, ministers of religion, Victoria Police, tax agents, Centrelink and tribunals (e.g., Fair Work Commission and Australian Human Rights Commission), without terminating their NDA.
9. Non-disclosure terms in employment contracts relating to the prevention of disclosing material information about workplace sexual harassment are unenforceable.
10. A complainant can issue a breach notice if their employer has failed to meet any preconditions stipulated above. The breach notice must contain the reason for it, advise the employer of their right to challenge and be in an approved form. The employer has 30 days to respond otherwise the NDA will no longer be legally binding. This is thought to reduce the burden on the complainant to issue court proceedings yet still allows the employer to respond and challenge the notice.
Who does the Bill apply to?
This Bill will apply to employers who have employees who are “usually” based in Victoria for work and will only cover NDAs relating to workplace sexual harassment.
Important things to note:
1. If a complainant terminates their NDA, it will not affect the validity and enforceability of a settlement agreement or financial compensation that has been paid.
2. NDAs made prior to these proposed changes will not be subject to them if the Bill is passed.
3. The Bill only applies to NDAs covering workplace sexual harassment.
4. If an NDA were to cover other matters such as discrimination, then it would still be enforceable to allow for those relevant terms to remain confidential.
5. The Bill will come into force six (6) months after receives Royal Assent, meaning NDAs made after this time period will be governed by the proposed changes.
You can access the Bill’s home page by clicking the link below:
We will keep you informed as the Bill progresses.
If you require advice on how these proposed changes will affect your business or you have a question regarding non-disclosure agreements, please contact our experienced lawyers at HR Law at info@hrlaw.com.au.
CASE BRIEF: FLEXIBLE WORK ARRANGEMENTS
Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115
In the recent decision of Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115, the Fair Work Commission (“FWC”) held that Westpac Banking Corporation (“Westpac”) did not have “reasonable business grounds” to deny a long serving Westpac employee’s (“Employee”) request to work remotely to take her children to school.
The FWC’s decision primarily addresses the procedural and legal requirements employers must follow when responding to flexible work arrangement requests under the Fair Work Act 2009 (Cth) (“FW Act”). In instances where an employer seeks to reject an individual flexibility agreement, this case emphasises that employers must ensure that any refusal is supported by legitimate, clearly articulated reasonable business grounds and procedural processes are complied with.
FACTS
- The Employee made a request to Westpac for a flexible working arrangement per section 65 of the FW Act.
- The Employee had been working part-time for Westpac for over 20 years, and following a change to her partner’s work arrangement, she was required to perform school drop offs for her two young children.
- The school drop offs were approximately two hours away from the Westpac corporate office. Westpac’s Hybrid Office Policy required that employees attend a corporate office two (2) days each week.
- The travel time between the Employee’s children’s school and the closest corporate office locations was two (2) hours.
- Westpac refused the Employee’s request on the basis of the Return to Office Policy and noted that “working from home is no substitution for childcare” and “your arrangements for working remotely may change at any time at Westpac’s discretion”.
- The Employee sought an alternative arrangement, where she would work from a local branch office (which was closer to her) for two days a week, however this arrangement was rejected by Westpac.
LAW
Under section 65 of the FW Act, eligible employees may request flexible working arrangements to fulfill parental responsibilities. Employers must respond in writing within 21 days, stating whether the request is approved, refused, or varied.
Section 65A(3) of the FW Act sets out the grounds for refusal including:
3) The employer may refuse the request only if:
- the employer has:
i. discussed the request with the employee; and
ii. genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the circumstances mentioned in subsection (1); and
b. the employer and the employee have not reached such an agreement; and
c. the employer has had regard to the consequences of the refusal for the employee; and
d. the refusal is on reasonable business grounds. Note: An employer’s grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances: see subsection 65C(5)
Section 65A(5) of the FW Act defines reasonable business grounds as:
a. that the new working arrangements requested would be too costly for the employer;
b. that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested;
c. that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested;
d. that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; and
e. that the new working arrangements requested would be likely to have a significant negative impact on customer service.
Section 65A(6) states that any refusal must detail the business grounds relied upon by the employer.
These sections highlight the considerable procedural and legal obligations that employers are subject to when responding to an employee’s individual flexibility arrangement.
OUTCOME
The FWC found that Westpac breached its obligations under section 65A by:
- Failing to respond within the required 21-day timeframe.
- Not engaging in genuine consultation with the employee.
- Providing no substantive business grounds for refusal.
Deputy President Roberts noted that the initial written response lacked any explanation, and when reasons were later requested, they were deemed “cursory at best”.
Deputy President Roberts noted the following:
[18] There is also little doubt on the evidence that in dealing with the applicant’s FWA request Westpac did not engage with a number of the mandatory requirements set out in s.65A of the Act. In particular, Mr. Potts did not discuss the request with the applicant or genuinely try to reach agreement with the applicant about making changes to the applicant’s working arrangements.2 Nor was there any evidence to suggest that Mr. Potts had regard to the consequences of the refusal for the applicant.3
[19] Aside from a brief reference to the Policy in the response, there was no attempt to describe the particular business grounds for the refusal or how those grounds applied to the request.4 The response did not set out the changes to working arrangements that would accommodate the applicant’s circumstances that Westpac would be willing to make or state that there were no such changes, 5 or the effect of s.65B and 65C.6
Although Westpac acknowledged that it did not respond within the 21-day timeframe, it argued that the request conflicted with its 2025 Enterprise Agreement. However, the Commission reaffirmed that the National Employment Standards (NES) provisions take precedence over enterprise agreements.
Deputy President Roberts found that the Employee’s role had been performed entirely remotely over a number of years, with consistently strong outcomes. The Employee’s team had met or exceeded deadlines, her individual performance ratings were high, and there had been no decline in productivity, efficiency, or customer service. The continuation of remote work arrangements was considered unlikely to result in adverse impacts. This decision highlights the effectiveness of well-managed remote work environments.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This decision reinforces the importance of procedural compliance when managing individual flexible arrangement requests.
Employers must:
- Respond within statutory timeframes.
- Engage in meaningful consultation.
- Provide clear, evidence-based business grounds for refusal.
This decision emphasises that employers must take individual flexible arrangement requests seriously and ensure appropriate legislative processes are followed. In the case at hand, processes should have been in place to ensure the relevant timeframe, consultation and reasoning were provided for.
To read the case, click on the link below.
https://www.fwc.gov.au/documents/decisionssigned/pdf/2025fwc3115.pdf
If you need assistance responding to individual flexibility arrangement requests or require advice on updating your internal policies, please contact HR Law on info@hrlaw.com.au.
Our lawyers have extensive experience in advising employers on all aspects of individual flexibility arrangements.
Preparing for Christmas and New Year shutdown
As we move into December, some businesses are preparing for the annual Christmas and New Year shutdown and for some employers, this can be the busiest operating time of the year. There are some important matters for employers to consider at this time of year.
Business Shut/Close Down
A business “shuts down” or “closes down” when it temporarily closes its operations during certain times of the year, for example, over the Christmas and the New Year period. Most Modern Awards contain provisions which allow employers to direct employees to take annual leave over periods of shut down provided certain obligations, such as notice requirements, are met. If an enterprise agreement applies, it may also contain provisions regarding shutdowns.
If you would like advice regarding whether you can direct your employees to take annual leave over a shutdown period, please contact the team at HR Law.
Public Holidays
As there are a number of public holidays coming up over the Christmas and New Year period, employers must remember that Modern Awards and enterprise agreements can provide entitlements for working public holidays, including:
- extra pay (such as penalty rates);
- agreeing to substitute a public holiday for another day;
- an extra day off or extra annual leave; and
- working minimum shift lengths on public holidays.
Even though a public holiday may fall on a day when the employee would normally work, it does not mean they have to. However, an employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse to work on reasonable grounds.
Section 114 of the Fair Work Act 2009 (Cth) (“FW Act”) outlines what needs to be taken into account when deciding if a request to work is reasonable, including:
- the employee’s personal circumstances (e.g., family responsibilities);
- the needs of the workplace;
- how much notice was given to the employee about working;
- how much notice the employee gives that they refuse to work;
- whether an employee’s employment contract provides for working on a public holiday; and
- whether an employee’s salary takes into account their requirements to work public holidays or if they are entitled to public holiday rates.
Upcoming Public Holidays
- Christmas Day: Thursday 25 December 2025
- Boxing Day: Friday 26 December 2025
- New Years Day: Monday 1 January 2026
Specific to Queensland, South Australia and Northern Territory:
- Christmas Eve (Wednesday 24 December 2025): part-day public holiday from 6.00pm till 12.00am.
Case Study – BHP fined for forcing employees to work on Christmas and Boxing Day by releasing a final roster without consultation
In the case of Mining and Energy Union v OS MCAP [2025] FCA 1372, it was found that BHP’s in-house labour hire – OS MCAP – did not request employees to work on Christmas and Boxing Day as a final roster was released, meaning that they did not have the opportunity to respond or consult.
The dispute was centred around section 114 of the FW Act, which as highlighted above, allows employees to be absent from their employment on a public holiday and for employers to reasonably request employees to work on a public holiday.
The following principle was re-affirmed:
- Employers can only make a request, not a demand, for employees to work on a public holiday as they must consult with them (this means draft rosters that include public holidays must be released prior to a final roster until employees agree to work).
BHP was fined $15,000.00 and had to pay $1,000.00 to each affected employee.
Employers must therefore request employees to work on public holidays and give them an opportunity to consult.
Employers are reminded to check any applicable Modern Award and/or enterprise agreement for specific provisions regarding public holidays, including applicable rates of pay.
HR Law Christmas and New Year Shutdown
The HR Law Brisbane and Gold Coast offices will be closed during the holiday season from 8.30am Wednesday 24 December 2025 to 8.30am Monday 5 January 2026. However, if an urgent matter arises, please contact our Managing Partner, Jill Hignett, on 0408 813 504 or via email at j.hignett@hrlaw.com.au.
The content of this newsletter is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Thank you for reading HR Law’s November 2025 Newsletter!
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