In this fortnight’s edition of the KHQ Workplace Watch we cover recent law reform developments (including to superannuation, cost orders in federal unlawful discrimination proceedings, and a Senate Inquiry concerning menopause and perimenopause in the workplace), updates from the Fair Work Commission regarding paid agents, model terms in enterprise agreements, and its new functions connected to the closure of coal or gas-fired power stations. We also briefly summarise the recent Federal Court interlocutory decision concerning ‘probationary’ dismissals and the Oaky North Coal Mine Case where the Fair Work Ombudsman secured over $600,000 in court ordered penalties against the Mining and Energy Union and 5 officials.

Law reform

Superannuation on paid parental leave

The Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 passed the Senate on 19 September 2024. The Bill provides for superannuation contributions on Commonwealth funded Paid Parental Leave Scheme payments for all births and adoptions on or after 1 July 2025. The payments will be made annually by the ATO.

The Bill also amends the parental leave provisions in the Fair Work Act 2009 to permit an employee to take keeping in touch days during a continuous period of unpaid parental leave, regardless of whether they had already taken flexible unpaid parental leave.

Information on the Bill may be found here.

Cost orders in federal anti-discrimination court proceedings

The Australian Human Rights Commission Amendment (Costs Protection) Bill 2023 also passed the Senate on 19 September 2024. The Bill amends the Australian Human Rights Commission Act 1986 to provide greater costs protection for applicants in federal anti-discrimination court proceedings.

The Bill adopted a modified equal access model which generally provides that:

• the respondent pay the applicant’s costs if the applicant is successful on one or more grounds; and
• the applicant may only be required to pay the respondent’s costs if the applicant instituted the proceedings vexatiously or without reasonable cause, or caused the respondent to incur costs by acting unreasonably.

This amendment is aimed at removing a disincentive for applicants from bringing proceedings for unlawful discrimination. It addresses recommendation 25 of the Respect@Work Report.

Further information about the Bill can be found here.

Payday super reform

Last week the Treasurer released the Payday Super fact sheet providing further information about the federal Government’s Payday Super measure which will require Superannuation Guarantee contributions to be paid with salary and wages instead of the current quarterly arrangement.

The change will take effect from 1 July 2026.

Under the proposed reforms, employers will generally have just 7 days from the ‘payday’ to ensure the Superannuation Guarantee contributions are received into the employees’ superannuation fund.

Senate report – issues related to menopause and perimenopause

A Senate inquiry into issues related to menopause and perimenopause was released which made a number of recommendations including that the Commonwealth introduce reforms to allow the Workplace Gender Equality Agency to re-commence data collection on the supports employers are providing, and their usage, for employees experiencing menopause and perimenopause (Recommendation 5), and that the flexible working arrangements in the Fair Work Act 2009 be amended to ensure that women can access flexible working arrangements during menopause (Recommendation 6).

Fair Work Commission updates

Paid Agents Working Group report and recommendations published

In January this year, Fair Work Commission President, Justice Hatcher, directed that a Paid Agents Working Group be established to review the procedures that apply to the participation of paid agents in Commission proceedings and consult on potential options to manage challenging paid agent conduct.

The objective of the working group was to identify measures aimed at ensuring that all paid agents appearing before the Commission:

• conduct themselves in an ethical and honest manner;
• act in the best interests of the parties they represent; and
• operate in accordance with standards that are broadly consistent with what would be expected of a lawyer in the same circumstances.

The Paid Agents Working Group has recently published its Report and Recommendations and made five specific recommendations including the disclosure of costs arrangements at the commencement of conciliation processes and the payment of settlement sums to the employee only. In his statement, President Hatcher accepted all recommendations of the working group and the Commission will engage with stakeholders regarding the changes and their impact, with the changes likely being implemented through amendments to the Fair Work Commission Rules.

A copy of the Report and Recommendations may be found here and the President’s statement may be found here.

Model terms for enterprise agreements

Following the Closing Loopholes Amendments, the President of the Fair Work Commission issued a statement announcing a new major case to make model terms for enterprise agreements and copied state instruments. These model terms include the model consultation, dispute resolution and flexibility terms.

The proposed timetable for determining the model terms is set out in the President’s statement. Under this proposal, parties are to file their submissions on the proposed model terms by 1 November 2024 and draft model terms will be published on 20 December 2024. The new model terms are set to take effect from 26 February 2025.

The statement may be found here and the background paper here.

Net Zero Economy Authority Act 2024

The Net Zero Economy Authority Act 2024 (Cth) received Royal Assent on 17 September 2024.

The legislation confers new functions on the Fair Work Commission in relation to workforce transition in connection with the closure of coal or gas-fired power stations.

The Net Zero Economy Authority will administer the Energy industry jobs plan, which is intended to support employees and employers throughout the transition. The CEO of the Authority can apply to the Commission for a ‘community of interest determination’. Employers subject to the determination will then have general obligations to support employees to find other employment. The Commission will also have the power to determine specific actions that are to be taken by certain employers.

The President of the Fair Work Commission, Justice Hatcher, has issued a statement about the Commission’s new functions. A copy of the statement can be viewed here.

The Net Zero Economy Authority Act 2024 (Cth) can be accessed here.

Transport Workers’ Union enters into an enforceable undertaking

The Fair Work Commission has accepted an enforceable undertaking given by the Transport Workers’ Union (TWU). The undertaking was entered into in accordance with the Fair Work (Registered Organisations) Act 2009 as a result of the TWU’s Victorian-Tasmanian Branch failing to maintain its register of members.

The TWU’s enforceable undertaking can be viewed here, and the Commission’s related media statement can be viewed here.

Update on enterprise agreement approval applications in the building and construction industry

The Fair Work Commission has published a further statement regarding its approach to approval applications in the building and construction industry.

The statement reveals that there are over 100 approval applications in the building and construction industry currently on foot. The Commission is going to approach these applications by seeking documentary evidence of various things, including a full disclosure of any fee paid by the employer or a third party to the CFMEU in connection with the making of the agreement.

Having now consulted with the administrator of the Construction and General Division of the CFMEU in relation to these processes, the Commission’s President, Justice Hatcher, is now satisfied that the appropriate steps have been taken to process these applications.

See the statement of President Hatcher here.

Case updates

Dismissals during ‘minimum employment period’

It is well known that employees whose employment is terminated during ‘minimum employment period’ are not able to make an unfair dismissal claim.

However, dismissals during ‘minimum employment period’ are not free from legal risk.

Last week, the Federal Court granted interim relief to a Chief Executive. His employment was reinstated because the Court considered there to be a reasonable case that “the timing of his dismissal was influenced by a desire to ensure that he could not make a claim for unfair dismissal and that this was also a substantial and operative reason for his dismissal” (see paragraph [29]).

The Chief Executive had been summarily dismissed on 3 September 2024. Had his employment been terminated the very next day, he would have been eligible to make an unfair dismissal claim.

Nicholas J said at paragraph [27] of the decision:

“The evidence before me strongly suggests that the Executive Committee meeting was arranged with great haste at a time when Ms Croker’s report had not even been finalised, and after Mr Dabboussy had already been stood down. There is no explanation on the evidence before me as to why it was necessary for the Executive Committee to meet for the purpose of considering what were at that stage said to be “draft findings” or how it was that Dr Jneid (but not Mr Dabboussy) came into possession of Ms Croker’s “draft findings”. In my view, there is a strong inference available that the Executive Committee was convened by Dr Jneid for the purpose of facilitating termination of Mr Dabboussy’s employment before 4 September 2024, so as to deny him the opportunity to make a claim for unfair dismissal under Part 3-2 of the FW Act.”

This outcome was the foreseeable outcome of the High Court’s decision last year in Qantas Airways Limited v TWU (2023) 412 ALR 134. But this will be a controversial decision for employers, as it will further encourage employees to pursue general protections claims in circumstances where their employment has been terminated during their probationary (or the statutory ‘minimum employment’) period, where they are ineligible to make an unfair dismissal claim.

See Dabboussy v Australian Federation of Islamic Councils [2024] FCA 1074.

$600,000 in court ordered penalties for threatening union conduct

The Federal Court ordered penalties against the Mining and Energy Union and five officials in excess of $600,000 for their conduct during an industrial dispute at the Oaky Creek North coal mine in 2017 and 2018.

Some of the impugned conduct included:

• verbal abuse (inciting verbal abuse), and filming workers going to and from work at the coal mine;
• publishing derogatory material on social media about some of the workers;
• encouraging (or inciting) the publication of a list of “Oaky North scabs” on social media; and
• putting up “scab signs” naming specific workers on the roadside near the mine.

The highest penalty received by an official was $85,680 for contravening the coercion provisions of the Fair Work Act 2009 on a total of 148 occasions.

See Fair Work Ombudsman v Mining and Energy Union (The Oaky North Coal Mine Case) [2024] FCA 1093.

The Fair Work Ombudsman’s media release regarding the decision can be found here.