23 Dec HR LAW NEWSLETTER – DECEMBER 2025
Welcome to the December 2025 HR Law Newsletter.
In this Newsletter, we discuss updates on the management of General Protections Claims by the Fair Work Commission and the Victorian Government’s response to the Inquiry into Workplace Surveillance. We also take a look at the year 2025 in review and update you on what to expect in 2026.
As we close out 2025, we take this opportunity to give a big thank you to all our valued clients, colleagues and online followers for your continued support during the year. It has been our great pleasure to support your businesses in managing your employment law matters and we look forward to working with you in 2026.
Jill and the team at HR Law wish you a very Merry Christmas and a Happy New Year. We hope you have a safe and happy festive season.
Fair Work Commission Update – Revised Management and Provision for General Protections Claims
The following changes have been made by the Fair Work Commission (“FWC”) with regards to General Protections (“GP”) claims to improve efficiency and address the excessive volume of claims, many of which lack merit to proceed to the conciliation stage:
- Form F8 (lodged by the employee):
- includes additional questions for eligibility;
- if the applicant wishes to be represented by a lawyer or paid agent, the relevant grounds to get this permission must be addressed in their application; and
- applications made outside of the 21-day lodgement period must address grounds for exceptional circumstances to be submitted after the deadline.
- Form F8A (lodged by the employer):
- an additional question requiring submissions if permission is being sought to be represented by a lawyer or paid agent;
- optional response questions if the application has been lodged outside of the 21-day limit; and
- the question regarding jurisdictional objection/s has been amended to now be identified and explained in detail instead of a box being ticked.
- Permission for representation by a lawyer or paid agent is to be determined prior to the conference.
- Eligibility for applications made outside of the 21-day period will now be determined before they are served on the employer.
- The seven (7) day period that employers have to respond to GP claims is going to be extended via consultation as it is too short.
- Disclosure of costs arrangements at the commencement of the conciliation process (please note this is currently being finalised).
- Standard terms of settlement will only provide for the payment of the settlement amount into a bank account controlled by the employee instead of the lawyer or paid agent’s bank account (please note this has already been implemented).
These changes complete Stage 1 of a three stage reform which forms part of the wider review of the FWC’s current case management processes which commenced in July 2025. Stage 2 will see the review of processes for conferences as per s.368 of the Fair Work Act 2009 (Cth) (“FW Act”). Stage 3 will review information and education materials.
Once Stage 3 is complete, the FWC will commence reviews of GP applications not involving dismissal under s.372 of the FW Act and Unfair Dismissal applications under s.394 of the FW Act.
Please click on the link below to see the official statement from the FWC regarding these changes: https://www.fwc.gov.au/documents/consultation/presidents-statement-gp-changes-2025-11-12.pdf
We will keep you updated on these changes.
Victorian Government’s Response to the Inquiry into Workplace Surveillance
The Victorian Government has given in-principle support to 15 of the 18 recommendations given by the Inquiry into Workplace Surveillance, with the most noteworthy being that employers need to give two (2) weeks’ written notice before introducing workplace surveillance. In-principle support means that the Victorian Government supports the intent of the policy but not the method of achieving it.
Although most of the Victorian Government’s industrial relations powers are vested with the Commonwealth, s.27(2)(m) of the Fair Work (Commonwealth Powers) Act 2009 (Cth) protects the State’s power to regulate workplace surveillance matters. Furthermore, the Privacy Act 1988 (Cth) does not cover workplace surveillance.
The Inquiry into Workplace Surveillance highlighted that current surveillance laws are outdated as they do not account for nuances post COVID-19 with the introduction of working from home arrangements. The Committee highlighted that workplace surveillance should only be used for legitimate purposes such as improving workplace safety, recording workplace injuries or incidents, monitoring the use of resources and property, and detecting fraud and theft. However, the Committee found that workplace surveillance has “become problematic when it is used surreptitiously for other purposes”.
The Victorian Government’s ‘support in principle’ includes the following:
- Fourteen (14) days’ written notice to workers setting out the method/s, scope, timing, purpose and storage of workplace surveillance;
- Consultation with employees prior to introducing or changing workplace surveillance practices;
- Review of automated decisions made using workplace surveillance that affects the rights, interests and employment status of a worker;
- Further consultation required regarding workplace surveillance undertaken by third parties and reasonable steps that an employer can take to prevent third party surveillance;
- Employers must have a written surveillance policy; and
- Prohibiting the sale of personal data captured through workplace surveillance.
The Victorian Government stated that other more specific recommendations (e.g. changing certain laws or introducing regulatory bodies) that were supported in-principle will require further consultation.
The Victorian Government will now decide how to implement the recommendations including whether a stand-alone Act is needed. An assessment of overlap with occupational health and safety and privacy laws will also be assessed. Consultation with those who made submissions to the Inquiry will also take place.
What does this mean for employers?
Depending on the implementation of these recommendations, employers may need to follow and implement new laws regarding workplace surveillance. Although the full extent of application for these recommendations is unknown at this time, it is anticipated that the changes are intended to apply to all Victorian employers. Please note that these recommendations apply within the Victorian jurisdiction.
New South Wales has regulated workplace surveillance through the Workplace Surveillance Act 2004 (NSW), which states that employers must provide written notice to employees if workplace surveillance is to begin, have a clear policy and display signage in affected areas. Employers in New South Wales cannot complete overt surveillance unless they get approval from a Magistrate to complete covert surveillance. Additionally, the operation of the Workplace Privacy Act 2011 (ACT) in the Australian Capital Territory sets out surveillance restrictions in certain areas and notice requirements. Accordingly, Queensland, South Australia, Western Australia, Tasmania and the Northern Territory do not have any specific workplace-specific legislation for workplace surveillance.
See the Inquiry page here: https://www.parliament.vic.gov.au/inquiryintoworkplacesurveillance
If you would like to read the Victorian Government Response 2025 in full, please access below:
We will keep you updated on the implementation of these recommendations.
If you require advice on workplace surveillance or are considering introducing surveillance into your workplace, please contact us and one of our experienced lawyers will be happy to assist.
2025: Year In Review
- Coles and Woolworths Decision – Underpayment
This matter has been in progress for some time, regarding underpayments by Coles and Woolworths in relation to award covered employees who have been paid a salary.
The key elements of the Decision that look to resolve historical contentious issues and have general application, irrespective of industry, are:
- Offsetting: The Court expressed a view that an employer can only offset a payment made in one pay period against hours worked / award entitlements arising in that same period (i.e. an employer cannot offset payments across pay periods even when an employee is paid an annual salary – irrespective of whether the employee’s contract purports to create such a right).
- Record keeping: The Court expressed a view that even where an employer pays an employee a salary (with no entitlement to further payments for overtime), it must still keep a record of overtime hours worked.
- Authorisation of Overtime: Contracts of employment which state that employees may be required to work “reasonably necessary additional hours” to perform their duties, can expose employers to liability to pay overtime, even without a specific instruction from their manager to perform the overtime.
- Agreements under Awards: Modern awards generally allow for specific rights and entitlements to be varied by agreement with an individual employee or group of employees. In the Decision, the Court found that for an employer to assert that an agreement was reached, the objective circumstances must indicate that the employer and the employee had reached a consensus “ad idem” on the subject matter of each clause; there should be a “meeting of the minds”.
Further to the above, the accessorial liability provision contained in s.550 of the FW Act poses a significant risk for individuals such as human resources staff, managers, directors, accountants or advisors who are involved in a contravention of the FW Act. We are seeing more cases whereby individuals have had penalties imposed against them because they have been involved in such contraventions.
- Baby Priya’s Law
The Fair Work Amendment (Baby Priya’s) Bill 2025 (Cth) (“Baby Priya’s Bill”) passed through the House of Representatives and the Senate in November 2025. To view the Amendment’s homepage, click here.
The Fair Work Amendment (Baby Priya’s) Act 2025 (Cth) (“Baby Priya’s Act”) introduces 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. 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.
Under both the FW Act and the Paid Parental Leave Act 2010 (Cth), 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.
This change is reflected with the introduction of a new s.333X in the FW Act which removes 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 means that an employer is not 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.
- Superannuation Laws
The Australian Government introduced the Payday Super Reforms through the Treasury Laws Amendment (Payday Superannuation) Act 2025 (Cth) and Superannuation Guarantee Charge Amendment Act 2025 (Cth), both of which received Royal Assent in November 2025.
From 1 July 2026, the Treasury Laws Amendment (Payday Superannuation) Act 2025 (Cth) will mandate that employers must pay their employee’s superannuation contributions within seven (7) calendar days of paying the relevant wages. This is to ensure that employees receive their entitled superannuation in a timely manner and reduces the risk of delayed or unpaid superannuation guarantee contributions.
To view the Amendment’s homepage, click here.
The Superannuation Guarantee Charge Amendment Act 2025 (Cth) has been redesigned to:
“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”.
This means employers will be penalised with a superannuation guarantee charge when super funds do not receive payment within seven days of the relevant wages being paid to the employee. Please note, the charge is not tax deductable.
To view the Amendment’s homepage, click here.
It is also noted that as part of these reforms, the Small Business Superannuation Clearing House will no longer be available from 1 July 2026.
- Fixed Term Contracts
Limitations on the use of fixed-term contracts have been implemented since 6 December 2023 and include matters like time limitations, renewal limitations and consecutive contract limitations. Specifically, employers cannot employ someone on a fixed term contract: that is for longer than two (2) years; that has more than one (1) extension option; or in certain circumstances where there are consecutive contracts.
These exceptions have been extended until 1 November 2026 for the charities and not-for-profit sector and the medical or health research sector. However, fixed-term contracts entered into on 1 November 2025 are now subject to thresholds on the employer’s total annual revenue for the exceptions to apply.
Further, ongoing exceptions have been granted for the organised sport sector and high-performance sport sector.
As of 1 November 2025, temporary additional exceptions will no longer apply to fixed-term contracts entered into on or after 1 November 2025 for the higher education sector and employees at public hospitals. However, exceptions may still apply if applicable Modern Awards allow for it in certain circumstances.
Please see the updated Fixed Term Contract Information Statement here.
- Redundancy obligations confirmed by the High Court
In the recent landmark decision of Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 (6 August 2025), the High Court of Australia (“HCA”) upheld the Fair Work Commission’s (“FWC”) finding that the dismissals were not a case of genuine redundancy under s.389 of the FW Act.
The HCA confirmed that mining giant, Peabody, had failed to comply with s.389(2) by not properly considering whether the dismissed employees could have been reasonably redeployed into roles being performed by external contractors which may have been available within the employer’s enterprise.
BACKGROUND
In 2020, Peabody made 22 workers at its Helensburgh coal mine redundant (“Workers”). The Workers subsequently brought unfair dismissal claims against Peabody. Peabody claimed that the dismissals were cases of “genuine redundancy” pursuant to s.389 of the FW Act.
THE LAW
Under s.389 of the FW Act, a person’s dismissal is a case of genuine redundancy if:
- the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
- the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy; and
- the employer considered whether it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated entity of the employer.
FWC DECISION
The FWC ultimately held that the terminations were not cases of “genuine redundancy” because it would have been reasonable in all the circumstances for the Workers to be redeployed to perform the work that was being performed by the contractors.
Peabody challenged this decision, appealing it to the Federal Court of Australia in the first instance. The decision was ultimately appealed to the HCA (“Appeal”). The principal question for the HCA to consider in the Appeal was whether the FWC could consider other ways an employer might use its workforce to operate its enterprise, as part of the inquiry under s.389(2) of the FW Act.
HCA FINDING
The HCA denied the Appeal and held that the FWC had not erred in inquiring into whether Helensburgh could have made changes to how it uses its workforce to operate its enterprise. Specifically, the HCA found that the FWC was permitted by s.389(2) of the FW Act to undertake an inquiry into whether an employer could have made changes to how the employer uses its workforce to operate its enterprise, in order to make a finding on whether s.389(2) of the FW Act had been satisfied.
Gageler CJ, Gordon J and Beech-Jones J provided at [40] of the decision:
“The language of s 389 does not prohibit asking whether an employer could have made changes to how it uses its workforce to operate its enterprise so as to create or make available a position for a person who would otherwise have been redundant. None of the statutory language, context or purpose supports such a proscriptive rule.”
Accordingly, the HCA dismissed Peabody’s Appeal.
WHAT DOES THIS MEAN FOR EMPLOYERS?
This case highlights that employers must seriously consider all redeployment options before making workers redundant. This includes roles performed by contractors.
Additionally, this case highlights the FWC’s power to question business decisions in redundancy cases to ensure the process followed and the decision made is fair, balancing the competing needs of the employer and employee.
To read the full case, click here.
- Increase to Paid Parental Leave
The Federal Government’s Paid Parental Leave Scheme (“Scheme”) has increased the period of the Scheme from 22 weeks to 24 weeks. The addition of the two (2) weeks will provide new parents with additional time at home with their adopted or newborn child. These changes took effect from 1 July 2025. Employers should review their internal Parental Leave policies and processes to ensure compliance and address relevant adjustments, if required.
- Ensure your Contractor agreements are sound
The Fair Work Commission (“FWC”) reinforced the significance of “control” in remote engagements when determining employment status. In AB v Free Hearts Free Minds [2025] FWC 353, the FWC found that an Australian-based executive director for a US-registered charity was an employee, allowing her to pursue an adverse action claim under the FW Act.
Californian-registered non-profit Free Hearts Free Minds (“FHFM”) sought to dismiss the adverse action claim on the basis that:
- the executive director, “Ms AB”, was an independent contractor; and
- FHFM’s character as a foreign entity exempted it from the FW Act.
However, Commissioner Ben Redford determined that the nature of Ms AB’s engagement, particularly the degree of control exercised over her work, was more indicative of an employment relationship as evidence demonstrated by the fact that Ms AB:
- worked full-time for a set remuneration of $6,550.00 per month;
- received direct instructions from FHFM regarding her responsibilities;
- had no genuine capacity to refuse work;
- had a broad, ongoing role rather than discrete projects;
- represented to the public as FHFM’s executive director; and
- was required to complete a comprehensive handover upon termination.
Additionally, Commissioner Redford observed that while Ms AB was required to invoice FHFM, this was a requirement imposed by the organisation rather than her own choice. The lack of employee entitlements, such as superannuation and leave, was attributed to FHFM’s refusal to provide them rather than an indication of independent contractor status.
In addition, given that Ms AB worked entirely within Australia and the contract was entered into domestically, the FWC found FHFM to be a “national system employer” under the FW Act. As a result, it had jurisdiction to hear Ms AB’s adverse action claim.
To read the case, click here.
- Sexual Harassment Prevention Plan
On 1 September 2024, the Work Health and Safety (Sexual Harassment) Amendment Regulation 2024 (Qld) came into effect (“Amendment Regulation”).
The Amendment Regulation, which amends the Work Health and Safety Regulation 2011 (Qld), introduced new compliance requirements for businesses regarding the management of sexual harassment and sex or gender-based harassment in the workplace, including:
- the requirement to manage risks related to sexual harassment and sex or gender-based harassment as part of their existing duty to address psychosocial risks; and
- the requirement to implement control measures (with particular consideration of factors such as workforce characteristics, workplace environment and culture).
In addition, under the Amendment Regulation, businesses operating in Queensland must prepare (and implement) a Sexual Harassment Prevention Plan (“Plan”) to manage identified health and safety risks from sexual harassment and sex or gender-based harassment at work.
The Amendment Regulation mandates specific content to be included in the Plan and requires businesses to consult with workers in the development of the Plan.
Businesses must have had a Plan in place by 1 March 2025. Penalties can apply for non-compliance.
- Intentionally underpaying your employees is now a criminal offence
From 1 January 2025, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) (“Closing Loopholes”) came into effect, making the intentional underpayment of wages and entitlements to employees a criminal offence. The Fair Work Ombudsman (“FWO”) has published a guide for employers of all sizes to protect themselves from criminal liability under the Voluntary Small Business Wage Compliance Code and Closing Loopholes wage theft provisions.
This guide provides employers with practical advice and tools (such as checklists and strategies for fixing errors) to ensure they are not underpaying their employees. Additionally, this guide provides assistance on navigating Modern Award entitlements and classifications and following payslip and record keeping obligations.
The FWO has stated that businesses “do not have to check off every factor in the code to get the benefit of the Code”; rather the “overall picture of the business” will be assessed in the particular circumstances to determine whether the Code has been complied with. FWO representative, Anna Booth, has stated that this guide “will be the blueprint for every employer in Australia, and there will be no excuse for failing to comply with the law”.
To access the Code, click here.
To access the guide, click here.
What to expect in 2026
The FWC has announced upcoming changes in the field of Employment Law and Industrial Relations, including:
- the Albanese Government to announce results of the independent review of the Comcare compensation scheme and progress on banning non-compete clauses for lower-income earners (from 2027);
- the House Committee is reviewing the National Employment Standards (NES) with a focus on whether NES still meets the needs of workers, employers and the economy;
- General Protections applications not involving dismissal and Unfair Dismissal applications are under review;
- Fair Work Amendment (Paid Family and Domestic Violence Leave Act 2022 (Cth) is under further review, following last year’s assessment;
- FWC full bench has paused its review of the Right to Disconnect provisions due to limited case law; and
- the Senate will be undertaking an inquiry into the Greens’ “right to work from home” Bill and a FWC three-day hearing in February 2026 on adding a working-from-home clause to the Clerks Award.
The following decisions are expected to be handed down in 2026:
- the Federal Court’s review of BHP Coal’s same-job, same-pay orders for Bowen Basin mine, with Orica to file High Court submissions by 3 February on black coal industry long service leave (LSL) eligibility. BHP Coal’s reply is due in late February; and
- the Woolworths Class Actions involving underpayment of team members in South Australia and losses experienced by shareholders due to non-disclosure on the magnitude of employee’s underpayment claims, which falsely assured shareholders of their financial position.
HR Law will keep you updated on these amendments and decisions.
Upcoming Public Holidays (All States and Territories)
- Christmas Day: Thursday 25 December 2025
- Boxing Day: Friday 26 December 2025
- New Years Day: Thursday 1 January 2026
- Australia Day: Monday 26 January 2026
Specific to Queensland, South Australia and Northern Territory:
- Christmas Eve (Wednesday 24 December 2025):
- Queensland: part-day public holiday from 6pm till 12am.
- South Australia and Northern Territory: part-day public holiday from 7pm till 12am.
HR Law’s Christmas/New Year shutdown
HR Law’s Brisbane and Gold Coast offices will be closed over the holiday season from 5:00pm, Tuesday 23 December 2025 and will reopen at 8:30am, Monday 5 January 2026. However, if an urgent matter arises, please contact Johan Myburgh, Special Counsel, on 0438 117 809 or via email at j.myburgh@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 December 2025 Newsletter!
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