Workplace Watch – 12 May 2025: Workers’ Compensation Scheme Developments, FWC updates, recent court decisions

Welcome to the latest edition of our fortnightly Workplace Watch.

In this edition we cover:

• the publication by SafeWork Australia of a summary of Workers’ Compensation Scheme Developments;
• updates from the Fair Work Commission, including the variations to the Early Childhood Education multi-enterprise agreement, the Annual Wage Review major case and the highly publicised Grill’d enterprise agreement; and
• recent Court decisions on topics including single interest bargaining authorisation, reasonable additional hours and the meaning of a “workplace law” in adverse action claims.

REGULATORY UPDATES

Workers’ Compensation report published

Safe Work Australia has published its Summary of Workers’ Compensation Scheme Developments in Australia and New Zealand (2024) (Report). The Report summarises the significant developments that took place in the 11 different workers’ compensation schemes throughout Australia in 2024.

The Report can be accessed here.

Queensland Government appoints Mining & Resources Coroner

The Queensland Government has appointed a Mining & Resources Coroner to investigate fatalities and make safety recommendations on Queensland’s mine, quarry, petroleum and gas sites. Legislation will be introduced to establish the role.

A copy of the Joint Ministerial Statement can be found here.

FAIR WORK COMMISSION UPDATES

Early Childhood Education bargaining agreement coverage expanded

Deputy President Hampton has published a National Practice Leader’s Statement setting out the Fair Work Commission’s approach to applications to vary the Early Childhood Education and Care Multi-employer Agreement 2024- 2026 (ECEC Agreement).

The ECEC Agreement now covers 289 employers and approximately 40,000 employees, a significant increase from the 64 employers and 12,000 employees that were covered when the agreement was first approved by the FWC in December 2024.

The statement notes that the Commission has developed a monthly “batching” schedule to process section 216AA variations to the agreement so that it will hear applications together and publish a single monthly decision. The statement specifies the application cut-off dates and likely decision dates through to June this year.

The Statement ([2025] FWC 1179) is available here.

Updates in Annual Wage Review major case

There have been updates in the Annual Wage Review 2024–25 major case.

Submissions and submissions in reply were filed by:

• Australian Services Union;
• The Pharmacy Guild of Australia;
• Australian Industry Group;
• Australian Chamber of Commerce and Industry; and
• Government of Western Australia.

The Fair Work Commission published questions on notice in respect of economic and labour market considerations on 8 May 2025 inviting interested parties to comment.

A copy of the questions may be found here and the submission and other filed documents may be found on the major case page here.

Grill’d Enterprise Agreement rejected

As reported in the last edition of the KHQ Workplace Watch, Deputy President O’Neill found that Grill’d did not take all reasonable steps to explain the effect of the terms of its new enterprise agreement.

Following that decision, Grill’d proffered undertakings in an attempt to address the Deputy President’s concerns. The Deputy President did not accept the undertakings and dismissed the application for approval, concluding:

“[10] The question to be determined is whether the further and amended undertakings address the concerns I expressed in the Decision about the adequacy of the explanation provided to employees covered by the Agreement. This is an evaluative exercise and not the application of a precise mathematical formula. The exercise becomes easier and clearer in circumstances such as these, as the scale of the positive margin under the Agreement vis-à-vis the Award increases. Here, the positive margin against the Award has been increased. However, not to such a degree that it resolves the concerns expressed in the Decision. It remains the case that employees can be engaged under the Agreement for only $3.10 and a median of $10.89 per week above the Award. The Agreement passes the Better Off Overall Test only slightly more convincingly than I found to be the case in the Decision. In my view, the increased offering does not sufficiently address the findings in my Decision, as set out in paragraph [4] above. The median positive margin continues to be at a level that is likely to be eroded by increases in the Award rates over the 4-yearnominal life of the Agreement. In those circumstances, and in light of the profile of the employees who would be covered by the Agreement, and the very high levels of staff turnover, I am not satisfied that Grill’d has complied with s180(5) and (6) of the Act. My overall assessment is that Grill’d did not take all reasonable steps to explain the terms of the Agreement, and their effect, to its employees.”

The decision in Grill’d Pty Ltd [2025] FWC 1275 can be found here.

CASE UPDATES

Full Federal Court upholds single interest bargaining authorisation

The Full Court of the Federal Court has dismissed an application for judicial review of a single interest employer authorisation. The authorisation in question binds two local government entities to bargaining for a multi-enterprise agreement.

The appellant, Central Goldfields Shire Council (CGSC), argued that the Fair Work Commission:

• had misunderstood, and failed to properly weigh, public interest considerations; and
• erred in its consideration of the fundamental “workplace relations principles” in the Victorian Referral Act.

In dismissing the application, the Full Court said:

“27. We do not accept that the Commission’s reasoning can fairly be impugned in the way that CGSC seeks to impugn it. It is plain that the Commission appreciated that its assessment of whether the making of the SIEA might be contrary to the public interest required the weighing of factors that tended each way. It said so twice: initially at [69] and again in the concluding words of [72] of its decision. There is nothing about its recognition of a need to identify “some consequence” capable of supporting a conclusion that the making of the SIEA was contrary to the public interest that is inconsistent with that.

28. Particularly is that so given the import of s 249(3AB) of the FW Act. As the Commission observed, that section served here to establish a rebuttable presumption that it would not be contrary to the public interest to make the SIEA. Necessarily, then, contrariety to the public interest required that there be something capable of rebutting that presumption; in other words, something “…that could lead to the conclusion that it [would be] contrary to the public interest” to make the authorisation. Absent the identification of some consequence arising from the making of an authorisation that was inimical to the public interest, the presumption established by s 249(3AB) of the FW Act could not have been rebutted.

(…)

45. The issue of the SIEA’s consistency (or otherwise) with the “fundamental workplace relations principles” was a matter that CGSC raised solely in the context of the Commission’s assessment of the public interest (specifically, as to whether or not its making would be contrary thereto). That the Commission might incorrectly have construed those principles is irrelevant for present purposes. What was put was that it would be contrary to the public interest to make the SIEA because doing so would be obnoxious to them. The Commission considered that submission and rejected it. If it was wrong to do so, its error was classically one within jurisdiction. No occasion arises now to correct it via a grant of prerogative relief.”

The decision in Central Goldfields Shire Council v Australian Municipal, Administrative, Clerical and Services Union [2025] FCAFC 59 can be found here.

Law firm fined $48,840 for forcing junior lawyer to work excessive hours

The Magistrate’s Court of Victoria ordered a law firm to pay a penalty of $48,840 plus interest and an additional $8,200 in compensation for lost wages after forcing a junior lawyer to work unreasonable hours.

The junior lawyer was employed for 25 days and over the course of her employment, was forced to work up to 24-hour days and was underpaid for more than 225 hours of work.

Magistrate Fawcett said:

“39. The nature and extent of the Unreasonable Hours Contravention, the circumstances in which it took place and its impact on Ms Readdie led me to conclude in the Liability Decision that the contraventions were particularly egregious. The nature and extent of the conduct is summarised in the Liability Decision as follows:

[136] The sheer number of hours [Ms Readdie] was required to work are, in my view, self-evidently excessive. The times of the day, night and weekends she was required to work were arbitrary and unusual. … The requirement that she work excessive hours whilst staying in a hotel room with Mr Kuksal and Ms Xu deprived her of any form of personal autonomy or agency without any rational justification apparent. Whilst performing the additional hours, Ms Readdie’s time was monopolised by People Shop. …. Mr Kuksal’s requirement that Ms Readdie watch the Ice Hockey movie, unrelated to her work, at around 1am on a Sunday morning after having already worked approximately 14 hours on a Saturday, and maintain communication with him whilst doing so, was on any view unreasonable.

40. The circumstances in which the conduct took place included that Ms Readdie’s employment with People Shop was her first job as a lawyer, meaning she had no experience of how law firms ordinarily operate by which to judge the requirements on her. Further, they included that Ms Readdie was rarely provided with notice of the hours she would be required to work, and was often not aware what time she would start or how long she would be required to work on any given day.”

(footnotes omitted)

A copy of the penalty decision Readdie v People Shop Pty Ltd (Penalty) [2025] VMC 3 (9 April 2025) can be found here and a copy of the liability decision Readdie v People Shop Pty Ltd [2024] VMC 16 can be found here.

Federal Court orders substantial penalties against restaurant owners found to have underpaid migrant workers

The Federal Court has ordered $802,000 in penalties and compensation against restaurant owners.

The Federal Court ordered restaurant owner, Mr Mai, to back-pay $407,546 (plus interest and superannuation) for underpaying 36 employees of ‘Mr Viet’ in Adelaide’s Chinatown precinct between 2018 and 2021. The Court also ordered a $265,000 penalty against Mr Mai and a further penalty $130,000 against his wife, Ms Le, who was a manager at the restaurant and was involved in the serious contraventions.

Justice McDonald said:

“181. It is necessary to recall that the respondents’ admissions and co-operation occurred only after legal proceedings were commenced. Before that, Mr Mai had initially responded to the FWO’s investigation not only unco-operatively but obstructively, including by making, keeping and providing a Fair Work Inspector with false or misleading records, by instructing employees to lie to Fair Work Inspectors about their rates of pay and the method of payment, and even by prevailing upon one employee to repay, in cash, amounts that had ostensibly been paid to him to rectify underpayments. Those steps, which have been described in greater detail above, were designed to obscure the true position and mislead the investigation. Some of that unco-operative conduct itself involved contraventions of the FW Act and so is reflected in the penalties imposed for those contraventions.

(…)

188. Standing back and considering the matter, I am satisfied that civil penalties fixed in these amounts will operate to provide a very significant personal deterrent to Mr Mai and Ms Le against engagement in conduct of a similar kind in the future. I am also satisfied that these amounts are sufficient to provide an appropriate level of general deterrence. The “headline” figures are not as high as those sought by the FWO, but it should be understood that they are significant penalties having regard to the size of the business and the financial position of the respondents. It is also relevant to note that the total of the penalties to be imposed on the respondents exceeds the value of the assets apparently presently available to them to meet those penalties.”

A copy of the decision in Fair Work Ombudsman v Mai [2025] FCA 421 can be found here. The Fair Work Ombudsman Media Release regarding the decision can be found here.

Strike out application considers meaning of “workplace law” in adverse action claims

Chief Justice Mortimer has dismissed an interlocutory application by Melbourne Symphony Orchestra (MSO) to summarily dismiss pianist, Jayson Gillham’s, adverse action claim.

MSO argued that Gillham was not entitled to the benefit of a “workplace law”, being the Equal Opportunity Act 2010 (Vic), because Mr Gillham was an independent contractor and not an employee.

Chief Justice Mortimer said:

“87. For the reasons I have explained, I consider the applicant’s construction is arguable. Ultimately it may or may not succeed. The respondents have support in the reasons of Jessup J, and the general agreement of the other two members of the Court. However, it is clear that the construction of “workplace law” was a very minor, and somewhat fleeting, aspect of the reasons in Tattsbett, and as I have emphasised, no arguments of the kind made in this proceeding were made to the Full Court, nor to the primary judge.

88. I have not accepted these passages are unarguably ratio decidendi or “seriously considered dicta”. The correct characterisation of those passages in Tattsbet should be determined at trial. Further, even taking Tattsbett at its highest in the way the respondents seek to do, as French CJ and Gummow J said in Spencer at [25]:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.

89.In the overall circumstances of this proceeding, including the legal and factual issues raised, if a single judge is found ultimately to be bound by the passages as ratio, and they have the effect for which MSO and Mr Ross contend, I consider the applicant should have his full right of appeal.

90. Although finely balanced, I consider it would not be just or appropriate to deprive Mr Gillham of his entitlement to a full trial on the law and the facts because of a single paragraph of reasoning in a Full Court decision where the Full Court’s orders did not obviously depend upon this reasoning, and where the argument now raised was not in any sense before that Court. In circumstances such as the current proceeding it would be a very weighty matter indeed for a court summarily to dismiss a claim such as Mr Gillham’s.”

The decision of Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458 can be found here.

This article was originally written by George Smart, Liana Massouras, James Allen and Adam Lambert.

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