Employment Law Update for Employers
Labor IR promises pending: Penalty rates, parental leave, and non-compete clauses
The Albanese government has signaled plans to deliver on election commitments, including to:
– extend parents dealing with stillbirth and early infant death to employer-paid parental leave; and
– ban non-compete clauses for employees earning below the high-income threshold
However, support of the Greens will be needed, assuming the Coalition opposes the proposed changes.
The Fair Work Commission (FWC) also sought submissions from employers on whether to shelve a major employer bid to insert a conditions buy-out clause in the retail award which would introduce salary absorptions for managerial and higher-level staff currently on as little as $53,680 per year, introduce split shifts, and enable workers to waive meal and “smoko” breaks. Employer submissions were due by Monday, 16 June 2025.
Minister Rishworth’s correspondence
General Retail Industry Award variations (AM2024/9 and others) case page
ARA outline of submissions and witness statements
Bad manners: FWC upholds sacking for elevator aggression
The FWC has upheld the dismissal of an employee who pushed a woman as they rode an elevator towards his employer’s office, telling her to “f*ck off” whilst wearing an employer branded lanyard.
The employee argued he was recovering from knee surgery, that the woman pushed him first and the act was done in self-defence to protect himself. Also, that because the altercation happened ‘outside of work hours and outside the workplace’ that his employer’s code of conduct did not apply.
However, the FWC found his actions were ‘a disproportionate and aggressive reaction’ and were sufficiently linked to his employer’s premises given the altercation happened 15 minutes before his start time and while wearing his employer branded lanyard. Further, that was common sense not to shove and swear at people in places or circumstances connected to their work.
Peng Zheng v Citic Pacific Mining Management Pty Ltd [2025] FWC 1471 (28 May 2025)
Secret recordings in disciplinary meeting lawful, says FWC
The FWC held that a casual employee’s secret recording of a disciplinary meeting was lawful, but only in circumstances where the recordings were used to “aid recall”.
The employee with Autism Spectrum Disorder (ASD) alleged that his dismissal process was flawed and discriminatory, and tried submitting the recordings and transcripts into evidence before the FWC. However, the FWC refused to admit the evidence, noting that the recordings were not “reasonably necessary” to protect the employee’s lawful interests, even given the employee’s ASD, and instead said that he could have taken notes during the meetings, asked a support person to do so, or made contemporaneous notes after the meetings.
Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531 (5 June 2025)
Mrs DoubtHire: Are nannies employees?
The FWC has found that a cash-in-hand nanny was in fact an employee able to pursue an adverse action claim after finding that the question that must be asked is whether they work as a servant of the household or carry out a business of their own.
Ultimately, its decision turned on the fact that the nanny was not running her own business and did not issue invoices, provide an ABN, or file quarterly tax reports. The parents of the children she cared for also exerted a high degree of control over her work, as the nanny had an obligation to fit in her hours around the mother’s working hours.
However, the FWC did not rule out the possibility of a nanny in fact being a genuine independent contractor even in circumstances where there is a high degree of control by the household i.e., a person genuinely running a business caring for different families, or a person engaged through an agency as an employee or a sub-contractor of that agency.
Ms Jessica Dickson v Ms Susan Kovacs, Mr Felipe Cespedes [2025] FWC 1218 (2 May 2025)
