12 Mar HR LAW NEWSLETTER – FEBRUARY 2026
In the February 2026 HR Law Newsletter, we highlight key legal developments employers should be aware of, together with a reminder of upcoming public holidays and their implications for workplace compliance.
We examine a recent workplace misconduct decision, focusing on the practical lessons for employers and the importance of effective training and governance measures.
We also consider the issues employers should be assessing in light of recent amendments to the NSW Workers’ Compensation framework and use of Digital Work Systems in NSW, including potential impacts on compliance obligations, systems, and risk management.
Finally, we consider the proposed Federal Work From Home Bill and accompanying Senate Inquiry and what these developments may mean for employer obligations and the future regulation of flexible work arrangements.
1.
Introduction of General Protections involving dismissal Filter Quiz – The FWC has introduced an online early screening mechanisms for General Protections dismissal claims, including a filter quiz, to ensure applications meet threshold requirements amid a 135% increase in applications
2.
Extra Public Holiday in NSW for ANZAC Day – Due to ANZAC Day falling on a Saturday this year and a Sunday in 2027, NSW will observe the public holiday on the following Monday. Currently, Western Australia (“WA”) and the Australian Capital Territory (“ACT”) are the only other State Government and Territory that adopt this approach. It is important to note that WA will observe a public holiday on both the Saturday and the Monday, with public holiday loading payable on both for employees that work the public holiday.
3.
Award default Superannuation Funds updated – employers should review applicable modern awards to ensure superannuation contributions are paid to the correct default fund where an employee has not nominated a preferred fund.
4.
Amendments to NSW Workers Compensation Framework – see more information below.
5.
Submissions open for FWC’s review of ballot agents – see our recent linked in post –
https://www.linkedin.com/feed/update/urn:li:activity:7435545558393581568/
| State/Territory | Public Holiday |
|---|---|
| Western Australia | Labour Day – Monday, 2 March |
| Australian Capital Territory | Canberra Day – Monday, 9 March |
| South Australia | Adelaide Cup Day – Monday, 9 March |
| Tasmania | Eight Hours Day – Monday, 9 March |
| Victoria | Labour Day, Monday, 9 March |
Upcoming Easter Public Holidays 2026
| State/Territory | Public Holiday |
|---|---|
| Queensland New South Wales Victoria Australian Capital Territory Northern Territory South Australia | • Good Friday – Friday, 3 April • Easter Saturday/day after Good Friday – Saturday, 4 April • Easter Sunday – Sunday, 5 April • Easter Monday – Monday, 6 April |
| Western Australia | • Good Friday – Friday. 3 April • Easter Sunday – Sunday. 5 April • Easter Monday – Monday, 6 April |
| Tasmania | • Good Friday – Friday, 3 April • Easter Monday – Monday, 6 April • Easter Tuesday – Tuesday, 7 April (generally Tasmanian Public Service only) |
The Fair Work Commission (“FWC”) upheld Jellinbah Mining Pty Ltd’s (“the Company”) dismissal of Mr Saunders, finding the dismissal was not unfair in light of the egregious nature of Mr Saunders conduct and the robust and comprehensive policies and training provided by the Company regarding two‑way radio use and workplace conduct.
FACTS
Mr Saunders was dismissed for making vulgar and sexually explicit comments over a two-way radio about a colleague’s (“worker”) sexual activity with their partner. Mr Saunders comments included suggestions that:
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the worker should use illicit substances to influence their partner’s participation in intimate activity;
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the worker should engage in and record inappropriate intimate conduct involving their partner for
the purpose of sharing with others; and
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the worker should direct their partner’s behaviour during intimate activity.
Mr Saunders made these comments despite receiving robust training six (6) months prior on the appropriate use of two-way radios. The training included a slide deck that outlined the Company’s zero tolerance for offensive, demeaning and harassing language over the two-way radios. Examples of intolerable language included anything of a sexual nature, tasteless personal questions and use of vulgar language.
In addition, the Company’s Sexual Harassment, Sex-Based Harassment and Hostile Working Environments Policy expressly prohibited the conduct engaged in by Mr Saunders and outlined that a breach could result in disciplinary action up to and including termination.
The Company followed a procedurally fair dismissal process, including issuing a show cause notice, providing an opportunity for Mr Saunders to respond (both verbally and in writing) and issued a detailed termination letter.
Mr Saunders subsequently lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (“FW Act”), alleging that his dismissal was unfair on the basis that other employees involved were not dismissed.
LAW
A dismissal will be unfair if it is “harsh, unjust or unreasonable”, having regard to the criteria set out in s 387 of the Fair Work Act 2009 (Cth), including:
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the employee’s capacity or conduct;
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whether the employee was notified of the reason for dismissal;
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whether the employee was given the opportunity to respond;
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whether the employer unreasonably refused the employee from having a support person present in
a show cause meeting;
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whether the employee was warned about unsatisfactory performance before being dismissed;
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the size of the employer’s enterprise and effect it would have on following procedures detailed
above;
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whether the presence of a human resources team would impact the likelihood of procedures being
followed; and
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other relevant matters.
OUTCOME
Deputy President Butler ruled that Mr Saunders dismissal was not harsh, unjust or unreasonable. The FWC placed significant weight on the seriousness egregious nature of the conduct, the robust and recent training provided on the use of two-way radios, and the Company’s workplace policies.
KEY TAKEAWAYS FOR EMPLOYERS
This decision reiterates the importance of appropriate, detailed and practical workplace training and policies to manage employee conduct and respond to unfair dismissal claims.
In light of this decision, we suggest employers:
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regularly review workplace policies to ensure expectations, prohibited conduct, and disciplinary consequences are clearly articulated;
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implement workplace training that reinforces company policies and allows for employees to ask questions;
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ensure workplace training occurs regularly, particularly for workplaces with a high turnover; and
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follow procedurally fair dismissal processes, including issuing show cause notices and providing employees with a genuine opportunity to respond.
To read the full case, see the link below:
If you require advice on workplace policies, training or managing misconduct, please contact info@hrlaw.com.au or one of our experienced solicitors.
In 2024-2025, around 300,000 Australians retired with the average age of retirement being 57.3. This means around 19% of the Australian population is retired.
It is noted that the age of retirement is slowly rising due to cost-of-living pressures.
If you would like to read more on this, please click the below link:
The NSW Parliament has passed the Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 (NSW), amending the State’s workers’ compensation framework to introduce significant changes to psychological injury claims, premium settings and return to work arrangements.
The Workers Compensation Legislation Amendment (Reform and Modernisation) Act 2026 (“Reform Act”) was passed by the Legislative Council on 3 February 2026 and endorsed by the Legislative Assembly on 4 February 2026.
The Reform Act introduces a number of significant amendments, including:
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A legislated 18‑month restriction on average workers’ compensation premium increases;
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Revised whole person impairment (WPI) thresholds for psychological injury claims will increase to 25% from 1 July 2026 and progressively to 28% by July 2029;
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Weekly payments limited to 130 weeks for primary psychological injuries resulting in less than 25% permanent impairment, with some exceptions for permanent impairment of at least 21%;
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A return to work program that provides an additional year of medical benefits and income replacement; and
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New powers enabling the Treasurer to lower the WPI threshold if it is in the public interest.
These reforms are intended to stabilise sustainability and improved return to work outcomes.
You can read more about the Reform Act here:
Work Health and Safety Amendment (Digital Work Systems) Bill 2025
Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW): Key Changes
Employers Need to Know
The Work Health and Safety Amendment (Digital Work Systems) Bill 2025 (NSW) was passed on 12 February 2026.
The Work Health and Safety Amendment (Digital Work Systems) Act 2026 (NSW) (“Digital Work Systems Act”) proposes amendments to the Work Health and Safety Act 2011 (NSW) to expressly regulate health and safety risks arising from digital work systems, including systems using:
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Algorithms;
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Artificial intelligence;
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Automation; and
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Online platforms or software used to allocate or manage work.
The Digital Work Systems Act requires employers to ensure, so far as reasonably practicable, that work allocated by digital systems does not expose workers to health and safety risks, including psychosocial risks such as:
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excessive or unreasonable workloads;
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excessive performance monitoring or surveillance;
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unreasonable performance metrics; and
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discriminatory decision making in work allocation.
You can read more about the Digital Work Systems Act here:
Work Health and Safety Amendment (Digital Work Systems) Bill 2025
What Employers should be considering
With the Reform Act and the Digital Work System Act being passed, NSW employers should:
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prepare for WPI threshold changes commencing from 1 July 2026;
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review return to work and claims management processes for psychological injuries;
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identify any digital systems used to allocate, monitor or assess work, including AI driven tools; and
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assess whether those systems may create WHS or psychosocial risks under the Digital Work Systems Act.
If you require advice on how these reforms may affect your business, contact HR Law via info@hrlaw.com.au.
The Fair Work Amendment (Right to Work from Home) Bill 2025 (“WFH Bill”) proposes amendments to the FW Act to:
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expand s 65A to include a “work from home up to 2 days request”; and
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maintain safeguards allowing employers to refuse requests where working from home would be impractical or impossible due to the inherent requirements of the role.
The Bill mirrors a proposal announced by the Victorian Government, which has indicated its intention to introduce similar legislation following consultation in 2025.
For more information on the Bill please visit its homepage below:
Fair Work Amendment (Right to Work from Home) Bill 2025 – Parliament of Australia
Senate Inquiry into the WFH Bill
The Senate Education and Employment Legislation Committee is currently conducting an inquiry into the WFH Bill, with submissions closed and reporting due 26 March 2026.
For more information on the Senate inquiry, visit the link below:
Fair Work Amendment (Right to Work from Home) Bill 2025 – Parliament of Australia
Productivity Commission’s key findings
In its submission titled Working from home can work itself out, published on 2 February 2026, the Productivity Commission (“PC”) responded to the Senate inquiry into the WFH Bill and concluded that working from home arrangements have largely stabilised without government intervention.
The PC noted that since the widespread adoption of working from home during the COVID‑19 pandemic, employers and full-time employees have generally settled into hybrid arrangements, typically involving:
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two to three days working from home, and
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two to three days working from the workplace.
According to the PC, this suggests that the process of experimentation, negotiation and adjustment anticipated in its 2021 research has largely worked as expected, with employers and employees finding a practical “sweet spot” without the need for legislative intervention.
The PC concluded that introducing a statutory right to request working from home:
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may have little or no discernible effect on existing work from home arrangements; and
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may impede mutually beneficial arrangements if employers are unable to refuse requests that carry genuine costs, including reduced collaboration and connection in the workplace.
The PC raised particular concern about the Bill’s reliance on “inherent requirements” as a basis for refusing work from home requests, noting that:
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it is unclear what would constitute an inherent requirement, including whether this could extend to attending a workplace in person to support collaboration and connection;
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while case law is likely to develop over time, the initial uncertainty may lead employers to be reluctant to refuse requests due to concerns about prosecution; and
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an overly narrow interpretation of inherent requirements could result in employees working from home even where this produces net losses to employers or the broader community.
Please see the PC’s submission below:
Working from home can work itself out | Productivity Commission
We will keep you informed on the progress of the Right to Work from Home Bill and the Senate inquiry.
If you would like advice on any of the matters outlined in our February 2026 Newsletter or need advice on any other workplace matter, please contact our team at info@hrlaw.com.au.
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