Employment Law Update for employers

Workplace Law is ever-changing whether through decisions of the courts and commissions or changes to the many pieces of State and Federal legislation that regulates the relationship between Employee and Employer. We’ve put together this fortnightly Employment Law update to assist by giving you easy to understand snapshots of some of the recent changes that affect Employers. Contact us today. 

Sole trader charged with the Hillcrest Primary School Tragedy acquitted by Tasmanian court

 

The Magistrates Court of Tasmania has acquitted a sole trader charged under the Work Health and Safety Act 2012 (Tas) (WHS Act) who supplied and operated inflatable amusement devices involved in the 2021 Hillcrest Primary School tragedy in which a sudden and intense wind event lifted a jumping castle into the air, killing six children and seriously injuring several others.

The sole trader was charged with an offence under the WHS Act for failing, so far as reasonably practicable, to ensure that the health and safety of other persons was not put at risk from work carried out as part of her business or undertaking, and by exposing persons to risk of death or serious injury. Specifically, in relation to her alleged breach of duty in ensuring the anchorage system of the jumping castle was sufficient to prevent lift of the inflatable device.

However, expert evidence provided by a meteorological expert revealed that the tragedy was caused by ‘a significant upward force of the dust devil’, an unpredictable and localised weather event. Accordingly, the Court found that, although the sole trader could have done more, in light of the unforeseeable dust devil, even if she had done so, ‘that would have sadly made no difference to the ultimate outcome’. On this basis, the charge could not be proven beyond reasonable doubt and was dismissed by the Court.

Director of Public Prosecutions v Rosemary Gamble t/as Taz-Zorb [2025] TASMC 3

First Cab off the Rank… and Into the Gutter: First unfair termination case dismissed

 

The ‘Closing Loopholes 2 reforms’ last year brought a tranche of changes employment law, including new laws protecting regulated workers (i.e., those who are paid through a digital labour platform or regulated road transport contractors) from being ‘unfairly deactivated’ or ‘unfairly terminated’.

The Fair Work Commission (FWC) recently made its first ruling on the new laws enabling road transport contractors to contest termination, dismissing the application of a director of a delivery services company after a contract with a wholesaler to deliver goods to its customers was terminated. Under the laws, the regulated road transport contractor must be the person who performs all (or a significant majority) of the work to be performed under a services contract to make the application. Because the director employed approximately seven to 10 workers who undertook most of the deliveries, the FWC found that the director was not performing a significant majority of the work under the contract.

The Deputy President commented that the new laws were are not intended to ‘provide protection against the unfair termination of commercial contracts between businesses’ where it is employees who are in fact performing the work. Accordingly, the application was dismissed.

Ho Wong v Sal National Pty Ltd [2025] FWC 1701 (18 June 2025)

Swear and Beware: FWC accepts secret recording by employee of boss swearing

The FWC has accepted a secret recording by an employee of a conversation with his employer in which the employer could be heard telling the employee ‘there’s two things I can’t f*cking tolerate its people who steal and people who lie…’ and ‘I don’t want any negative nancies running around my company f*cking becoming toxic to other blokes…’

The FWC held that whilst there is no guarantee the FWC will admit secret recordings into evidence, in this case it allowed the recording because the parties were in dispute about whether the employer had engaged in conduct that had forced the employee to resign. Importantly, the employer also did not object to the recording being included in the evidence and in fact relied on it in submissions. In this instance, the FWC said that the recording had ‘significant probative value, and it went to a central matter in context between the parties’.

Whilst the Commissioner did consider that the employer carried on a business in a blue-collar industry where swearing is likely part of their ‘everyday work culture’, ultimately, she found that the conduct during the recorded conversation was unacceptable in any workplace. Accordingly, the FWC found the employer left the employee with ‘no effective or real choice but to resign’, allowing the employee to bring an adverse action claim.

Ali v DMG Building & Electrical Services Pty Ltd [2025] FWC 1244 (2 May 2025)

 

High Court backs CFMEU Administration

The High Court of Australia has unanimously upheld the validity of the Federal Government’s legislation which has placed the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) (General Division) into administration. It comes after the unprecedented and highly controversial Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Administration Legislation) was implemented by the Federal Government in August 2024 in response to the Australian Financial Review’s Building Bad expose, which alleged the CFMEU was committing systematic breaches of employment, industrial relations, and criminal law. The Administration Legislation appointed Mark Irving KC as Administrator over the National CFMEU body, tasked with transforming the CFMEU into ‘strong, democratic, member controlled, industrially proactive and effective Union, enduringly free from corruption and criminal influence’ and immediately removing over 280 CFMEU officials from office.

Ravbar v Commonwealth of Australia [2025] HCA 25

Building Bad – Australian Financial Review

 

‘Prison saved him’: Entry permit granted to CFMEU organiser imprisoned for robbery spree

Whilst we’re on the topic of the CFMEU… The FWC has issued an entry permit to a CFMEU organiser previously imprisoned for a two-day robbery spree in which he brandished an unused syringe and pretended he had a gun under his clothes to hold up bottle shops and service stations. ‘Prison saved him’, said the Deputy President.

An entry permit allows a union official to enter a workers’ workplace or business to investigate suspected contraventions of the Fair Work Act 2009 (Cth) (FW Act) or related instruments, or to hold discussions with employees – with just 24 hours’ notice before their visit.

The FWC took into consideration that it had not been ‘all plain sailing’ since the organiser’s release from prison with him having accrued convictions for obstructing police, assault, speeding, trespass and obstruction before 2014, and breaching police orders in 2020 and 2021. Despite this, the Deputy President found that the organiser had turned his life around and was now a ‘fit and proper person to hold a federal permit’.

Construction, Forestry and Maritime Employees Union [2025] FWC 1486 (30 May 2025)

 

We hope you have enjoyed this fortnight’s employment law update. See you next fortnight!

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