Workplace Watch – 11 March 2026: ‘world-first’ WFH laws proposed in Vic, NSW IR launches updated guidance regarding LSL Act, FC decision re use of “don’t know” responses from CFMEU
Welcome to the latest edition of the KHQ Workplace Watch.
In this edition we cover off the ‘world-first’ WFH laws proposed to commence in Victoria on 1 September this year, updated interpretation guidance released from the NSW regulator in relation to LSL, the FWC’s proposal to require disclosure of generative AI when used to prepare applications or evidence, key takeaways from the latest WGEA gender pay gap report, and some recent decisions from the Federal Court. These include decisions on the use of “don’t know” responses to pleadings in a CFMEU right of entry dispute, and ‘general deterrence’ penalties for Award and record keeping breaches by employers.
Victoria set to legislate two days’ working from home
The Allan Labor Government will introduce legislation conferring a statutory entitlement for eligible employees in Victoria to perform work from home for two days per week.
The new laws would take effect from 1 September 2026, with a deferred commencement for small business employers from 1 July 2027.
Premier Jacinta Allan has confirmed that the Bill will be introduced into Parliament in July.
The proposed reforms would amend the Equal Opportunity Act 2010 (Vic) to enshrine the right within Victoria’s anti-discrimination framework.
The proposed legislation would establish a dispute resolution mechanism in circumstances where an employer refuses a work-from-home request. In the first instance, disputes would be referred to the Victorian Equal Opportunity and Human Rights Commission for conciliation. Should conciliation fail to resolve a working from home dispute, proceedings could then be brought before the Victorian Civil and Administrative Tribunal for determination.
According to the Government, the proposal followed extensive consultation, including a statewide survey which attracted 37,485 responses. Premier Allan previously articulated the Government’s intention to legislate work from home rights at the ALP State Conference last year.
If enacted, the controversial amendments will establish a presumptive right to remote work in Victoria where the inherent requirements of the position reasonably permit such an arrangement, subject to the statutory dispute resolution framework.
You can read Premier Jacinta Allan’s latest press release here.
Federal Court strikes out CFMEU “don’t know” responses in Centenary Bridge dispute
The Federal Court has rejected the CFMEU’s claim that it could not respond to allegations of right of entry breaches at the Centenary Bridge upgrade project because it “did not know.” Justice Meagher struck out 18 of the union’s “don’t know” responses, describing its review of body-worn camera footage from its own officials as superficial and insufficient.
BMD alleged that union officials, including former Queensland/NT branch assistant secretary Jade Ingham, blocked workers and trucks from entering the site, interfered with bridge construction, and verbally confronted a site manager. BMD claims these actions caused a two-week delay and up to $300,000 in additional costs.
While individual officials alleged to have contravened the Fair Work Act 2009 (Cth) are entitled to penalty privilege – meaning they do not have to answer questions that could expose them to a civil penalty – Justice Meagher found the CFMEU itself had access to other evidence, including video footage, entry notices, and testimony from other union employees. This meant the union could have provided more detailed responses. Justice Meagher said the union had “fallen far short of what could reasonably be expected of a respondent who must plead in a proceeding.”
The decision follows temporary restraining orders issued last year by Justice Logan, who barred the CFMEU from obstructing project access. Justice Logan found that the union’s actions went beyond peaceful protest and interfered with the rights of workers and contractors.
The case has also affected the Fair Work Commission’s handling of entry permits for other officials named in the dispute. While the FWC granted permits, it noted that conditions could be imposed if Federal Court findings result in penalties.
BMD’s claims for penalties, compensation, and damages continue to be assessed in the Court.
You can read Justice Meagher’s decision here.
NSW IR launches updated guidance regarding LSL Act in NSW
From 1 March 2026, NSW Industrial Relations has released updated guidance on its preferred interpretation and calculation of long service leave in NSW.
While the LSL Act 1955 (NSW) itself remains unchanged, the new guidance materials provide some useful clarity for employers in NSW around how the regulator will now interpret and apply provisions of the Act, particularly provisions which have yet to be considered by the Courts or have otherwise not been subject to detailed judicial interpretation.
Importantly, previous cases are not be affected by the updated interpretation and the updated guidance will not be applied retrospectively so it does not affect the validity of previous complaint handling or prosecutions.
However, NSW Industrial Relations has said that current cases and audits may be impacted by the updated interpretation and the regulator has stated that inspectors assigned to open cases will contact employers to explain any impacts.
Given many software platforms do not automatically handle NSW specific LSL interpretation rules, manual adjustments and updated calculation rules may be required for many NSW employers in light of the updated interpretation – particularly in relation to casuals, employees with fluctuating hours, averaging of earnings or one day leave scenarios.
The full NSW Industrial Relations LSL Guide can be found here.
FWC to require disclosure of generative AI use in applications
The Fair Work Commission is preparing to introduce new rules requiring parties to disclose whether they used generative artificial intelligence when preparing applications or evidence. The change follows growing concerns within the Commission that the widespread use of AI tools is contributing to a significant increase in the number of matters being filed.
Justice Hatcher recently announced that, in the near future, the Commission will modify its application forms to include a mandatory AI disclosure requirement. Applicants will now need to indicate whether generative AI was used in preparing their materials and certify that they have checked the information to ensure it is accurate and relevant. Parties will also be required to include hyperlinks to any case law they cite. Failure to comply with these requirements may result in the application being dismissed or an order for costs.
Witnesses will also be required to disclose whether AI was used in preparing their statements. In addition, the Commission plans to release a guidance note on the use of generative AI in Commission proceedings, with public consultation expected to begin shortly.
These changes follow a sharp increase in the Commission’s workload in recent years. Historically, the FWC dealt with just over 30,000 matters each year. However, filings increased to around 40,000 in 2023–24 and 44,000 in 2024–25. For the current financial year, the Commission expects between 50,000 and 55,000 matters, representing a significant increase over a short period.
Justice Hatcher said there is no sign that the growth is slowing and suggested the rise in applications is likely linked to the increasing availability of AI tools and that many applications now contain language that appears to be AI-generated, which has made it easier for individuals to prepare and lodge claims.
In a personal example, Justice Hatcher said he tested ChatGPT by providing basic details about a hypothetical dismissal. Within minutes, the program produced a ready-to-file application and a witness statement containing invented details, along with an estimate of potential compensation. The exercise highlighted how easily applications could be generated even where the claim had limited prospects of success.
To better understand how applicants are using AI, the Commission has begun a research project that will survey parties who lodge unfair dismissal and general protections claims. The aim is to gather information about how applications are prepared and whether AI tools are being used in the process.
Federal Court orders penalties against employer for underpayments of annual leave loading and record keeping failures
Justice Dowling has awarded penalties against a franchisor of a travel agency for its failure to pay a former employee her annual leave loading entitlements, and for failing to keep records and pay slips in accordance with the requirements of the Fair Work Act.
While the matter also involved an interesting background of criminal proceedings relating to the circumstances of the Applicant’s dismissal (including an overturned conviction), as well breach of contract and adverse action claims, the separate penalty proceedings related only to the employer’s record keeping and Award contraventions.
Notwithstanding that the employer admitted those contraventions, the Court imposed penalties totaling $55,000 for the breaches of sections 45, 535(1) and 536(1) of the Fair Work Act, made payable to the Applicant.
In considering the quantum of those penalties Justice Dowling undertook an assessment of relevant factors in accordance with those applied by Justice Tracey in the matter of Kelly v Fitzpatrick [2007] FCA 1080 including: the nature, extent and circumstances of the conduct, the nature and extent of any loss, the employer’s previous conduct, whether the conduct was in a singular course of conduct, the size of the employer’s enterprise , the involvement of senior management, the degree of contrition, cooperation and corrective action and the needs for compliance and deterrence.
While the claims against the individual respondents were dismissed (via a consent order), Justice Dowling found that in taking into account the above factors, the issue of ‘general deterrence’ had a ‘significant role to play’, and was given more weight than those other factors – yet another reminder to employers that their ignorance of their obligations, their good record and their contrition over any contraventions can still be insufficient to safeguard against the award of penalties.
Read the full penalty decision here.
Key Takeaways from the 2024–25 WGEA Gender Pay Gap Report
The Workplace Gender Equality Agency’s (WGEA) Employer gender pay gaps report 2024-25 highlights some of the ongoing challenges — and modest progress — in Australian workplaces.
The report covered more than 10,500 organisations with over 100 employees, representing nearly 6 million workers.
The report found the mid-point total remuneration gender pay gap is 11.2% (down 0.9% from last year), with a median gap of 8%. However, around 71% of employers continue to show gaps favouring men, 22.5% fall within the target range of +/- 5%, and just 6.7% have gaps favouring women.
WGEA stated that these gaps largely reflect how men and women are distributed across organisations: men are overrepresented in higher-paid and leadership roles, while women are concentrated in lower-pay quartiles. Discretionary payments — such as bonuses, overtime, and allowances — also widen the gap according to WGEA.
The latest report shows modest progress from the 2023-24, with slightly narrower gaps and more employers falling within the target range. Public reporting of employer-level data appears to be driving greater attention to pay equity.
However, the clear message for employers is that mere reporting alone is no longer enough. Boards and senior leaders should understand the drivers of gaps and implement targeted strategies and action plans to address them. Pay equity is increasingly a matter of governance, workforce sustainability, and reputation, not just compliance.
The full WGEA’s Employer gender pay gaps report 2024-25 can be found here.
This article was written by Sandy Suliman (Associate), Tim Agius (Associate), Marcus Di Blasio (Senior Associate), Ned Fitzgerald (Senior Associate) and Michael Cochrane (Principal).
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