Workplace Watch – 17 March 2025: Commonwealth Code of Practice on Sexual and Gender-based Harassment, WGEA gender pay gap report, FWC decision

In this fortnight’s edition of the KHQ Workplace Watch, we cover:

• the latest law reform updates, including the new code of practice for sexual and gender-based harassment in the Comcare jurisdiction, the WGEA gender pay gap report, Queensland announcing that it will delay the Respect at Work amendments due to commence on 1 July and the Victoria’s proposed amendments to workers compensation in Victoria;
• recent updates from the Fair Work Commission, including the working from home award variation matter and the TWU’s cash in transit contractual chain order application;
• decisions from the Federal Court on the enforcement of restraints, the obligation to pay employees in full, and right of entry to hold discussions with employees; and
• a decision from the Fair Work Commission regarding intervention in enterprise agreement approval applications.

LAW REFORM

Commonwealth Code of Practice on Sexual and Gender-based Harassment

The Federal Government has approved a new code of practice, the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025, which applies to the Comcare jurisdiction.

The new code of practice sits alongside the existing code of practice for Managing Psychosocial Hazards at Work and provides Comcare covered Persons Conducting a Business or Undertaking with practical guidance about how to meet their obligations to protect workers against workplace sexual harassment.

The implementation of a code of practice on sexual harassment was recommendation 35 in the Australian Human Rights Commission’s Respect@Work: Sexual Harassment National Inquiry Report (2020). The code of practice complements the positive duty under the Sex Discrimination Act 1984 which requires employers and persons conducting business or undertaking to take reasonable and proportionate measures to eliminate certain forms of unlawful sex discrimination, including sexual harassment, as far as possible.

Codes of practice are admissible in court proceedings and provide guidance as to what is reasonably practicable in the circumstances.

A copy of the Minister for Employment and Workplace Relations Media Release may be found here,  Comcare’s announcement may be found here, and the Work Health and Safety (Sexual and Gender-based Harassment) Code of Practice 2025 may be found here.

Gender Pay Gap report published

The Workplace Gender Equality Agency (WGEA) issued its 2023-2024 report of employer gender pay gaps. Notably, larger employers are more likely to have smaller gender pay gaps. The report states that, at a national level, 56% of employers reduced their average total remuneration gender pay gap, and 44% increased their gender pay gap.

A copy of the WGEA report may be found here.

Amendments proposed to workers compensation in Victoria

The Victorian Government introduced the Workplace Injury Rehabilitation and Compensation Amendment Bill 2025 which proposes amendments to the Workplace Injury Rehabilitation and Compensation Act 2013 and other legislation. The amendments:

• provide for a code of rights for claimants;
• impose obligations on employers in relation to training persons appointed as return to work co-ordinators; and
• make further provision for support and compensation for family members of workers who suffer a workplace injury or death.

The Minister for Education, Minister for WorkSafe and the TAC, Ben Carroll said in the second reading speech:

“…These changes deliver on the Victorian Government’s commitment to implement recommendations of the Independent Review of WorkSafe Victoria’s management of complex workers’ compensation claims led by Peter Rozen KC (now Judge Rozen) and a review of the adequacy of compensation and supports for family members of workers whose death is work-related. The Bill will ensure that the Scheme, WorkSafe, its Agents and self-insurers are taking a person-centred approach to the delivery of services. The Bill also includes administrative changes that will improve the operation of the Scheme, WorkSafe and the Workplace Injury Commission (WIC).”

A copy of the Bill can be found here, the explanatory memorandum here and the second reading speech here (Page 27).

Queensland Government delays commencement of Respect at Work amendments

The Queensland Government announced that it will introduce legislation to delay the commencement of the second tranche of Respect at Work amendments scheduled to commence on 1 July 2025. Those amendments, including laws prohibiting work environments that are hostile on the basis of sex, were introduced in the Respect at Work and Other Matters Amendment Act 2024 (Qld).

The amendments also provided for new protected attributes for discrimination including an “irrelevant criminal record”. The Attorney-General said in the announcement that more time was required for consultation.

A copy of the Attorney-General’s media statement can be found here.

Commissioner appointed to FCFCOA

Commissioner Leigh Johns (OAM) has been appointed to the Federal Circuit and Family Court of Australia (Division 2) after almost 12 years of service at the Fair Work Commission and will commence on 1 April 2025.  Commissioner Johns was one of 4 appointments to the FCFCOA (Division 2) to address the migration caseload.

A copy of the FCFCOA’s media release is available here.

REGULATORY UPDATES

Enforceable Undertaking for LTU’s underpayment of 6,774 employees

La Trobe University has entered into an Enforceable Undertaking with the Fair Work Ombudsman for the payment of more than $10.77 million, inclusive of superannuation and interest, in relation to the underpayment of more than 6,700 staff, and an additional payment of $220,000 to the Commonwealth’s Consolidated Revenue Fund.

In a media release the Fair Work Ombudsman said that the underpayments were caused by “systemic failures in compliance, central oversight and governance processes, with schools adopting differing payroll practices” and mostly related to marking work.

The Enforceable Undertaking also includes commitment from the university to implement a range of measures, including updating its payroll and record-keeping infrastructure, maintaining an employee payments complaint and review mechanism, and developing written guidelines relating to casual entitlements under its 2023 Enterprise Agreement and on-going compliance monitoring services, to ensure future compliance.

A copy of the Fair Work Ombudsman media release may be found here and the undertaking can be found here.

FAIR WORK COMMISSION UPDATES

Draft survey questions published in Clerks Award WFH variation

The Full Bench of the Fair Work Commission has issued a Statement in the major case to vary the Clerks—Private Sector Award 2020 to include working from home arrangements.

Commission staff engaged Swinburne University to conduct employer and employee surveys, and Swinburne University prepared draft survey questions which were attached to the Statement.

Interested parties were invited to comment on draft employer and employee surveys commissioned by 10 March 2025. Five submissions have been made including from Ai Group and ACCI.

The Statement ([2025] FWCFB 47) can be found here and the Fair Work Commission’s major case page which contains the submissions can be found here.

Further update in TWU’s contractual chain order application for the cash in transit industry

In February this year the TWU applied for a contractual chain order in the cash in transit industry, requesting that the application be dealt with urgently.

The urgency was said to arise from the cessation of funding arrangements which currently provide financial assistance to the industry which are due to expire on 30 June this year. The Statement says that at the initial conference conducted in private on 11 March 2025, the parties discussed the uncertainty associated with the expiration of the funding arrangements and that the TWU agreed to provide a proposal as to the way in which the Commission should progress the application.

A further conference is listed for 19 March 2025. A copy of the Statement ([2025] FWC 721) can be found here, and the major case page can be found here.

CASE UPDATES

Professional services firm unsuccessful in injunction application to restrain former employee

The Federal Court has dismissed an interlocutory application by professional services firm BlueRock to restrain one of its former senior accountants from breaching her contractual post-employment restraints.

BlueRock made the application in light of its former employee’s resignation and subsequent commencement as a partner with a direct competitor, Nexia Australia; citing concerns that in her new role, she would misuse confidential information and seek to solicit and provide services to her former clients at BlueRock in contravention of her employment contract. These concerns were exacerbated by the employee’s seniority at BlueRock, including her exposure to highly valuable confidential information, her client connections and other sensitive information she could take advantage of at her new firm.

In dismissing the application, Snaden J of the Federal Court held that the applicant’s evidence “did not rise beyond speculation” and that the court is unlikely to intervene to provide an injunction restraining conduct that might occur, rather than conduct that has happened (or has been threatened or attempted by the former employee). A prima facie case therefore could not be established by direct evidence or inference in this case.

Relevantly, Snaden J said:

“[32] There is no evidence presently that Ms Kaushik has approached any of her former clients, nor any direct evidence that she intends to do so. Ms Kaushik herself deposes that no such approaches have been attempted. In order that it might establish a basis for the relief for which it moves, the applicant must show, at a prima facie case level, that conduct of that kind is threatened, impending or probable (as opposed merely to being possible). In the absence of direct evidence, it can only do that by inference.

[33] The evidence as it presently stands falls short of affording a proper basis upon which to infer that Ms Kaushik intends or is about to do any of the things that are enumerated in cl 32 of her former employment contract. None of the six circumstances upon which the applicant relied to that end gives rise to the inference that it invites the court to draw.

…

[37] With respect, the concerns that Mr Gordijn outlines in his affidavit do not rise beyond speculation. Perhaps it might transpire that history vindicates his suspicions; but the court in the meantime should be slow to entertain injunctive relief on the basis of things that might occur, as opposed to things that are happening, or have been attempted or threatened.

…

[44] The applicant’s case, of course, focuses upon what it perceives to be the threat that Ms Kaushik is soliciting or threatens to solicit work from clients with whom she had substantive personal dealings in the last 12 months of her employment. As might by now be clear, I would more readily accept that there is a stronger prima facie case for holding that any work undertaken by Ms Kaushik for those clients would be undertaken in breach of an enforceable covenant provided for by cl 32; at least insofar as it was undertaken during the shorter three-month “Relevant Time” there referred to.”

A copy of the decision in Blue Rock Australia Pty Ltd v Kaushik [2025] FCA 176 may be found here.

NSW Industrial Court rules on the obligation to pay in “full”

The Australian Rail, Tram and Bus Industry Union challenged Pacific National’s lockout of railway workers in the NSW Industrial Court.

In relation to s. 323 of the Fair Work Act 2009 and the obligation to pay “in full”, Taylor J said:

“[61] While the context set out above confirms that s 323 is at least intended to make an unauthorised deduction from pay a civil penalty offence, a natural and ordinary reading of the section gives it a wider effect. As Buchanan J concluded in Wollongong Coal and Halley J concluded in Euro Car Parts, s 323 does not only prohibit deductions other than those permitted in s 324. The plain meaning of the words “in full” is that s 323 creates a statutory obligation to pay the amount payable to an employee in relation to the performance of work each month. While the context, identified above, is consistent with a narrower view of the effect of the section, it is not inconsistent with the section also having the wider effect identified. In other words, the context does not require a departure from the natural and ordinary meaning of the words. The section not only addresses the mischief of unauthorised deductions for ‘in kind’ benefits but extends to preventing any short payment of moneys payable to an employee for the performance of work...”

“[63] … I prefer the conclusions… that s 323 identifies and provides for the enforcement of an obligation to pay wages “in full” and “monthly”, and by so doing creates a civil penalty for a failure to pay a contractually obligated payment for work done.”

The union also alleged that the lockout was not protected employer response action under the Fair Work Act 2009 because it was scheduled to commence at the same time as the employee claim action. In respect of this issue, Taylor J said:

“[84] I concur with the view in McCain that to be employer response action a lockout has to be in response to industrial action actually taken by its employees, and as such the employer action cannot begin before or at the same time as the employee action which it is responding to begins.

[85] On the material before me Pacific National’s action did not commence before or at the same time as the employee action commenced but commenced after and in response to that action. I reach that conclusion for the following reasons.

[86] First, as noted, in my view Pacific National’s notice conveyed that its intended action would only commence if an employee first engaged in employee action.

[87] Second, I find as a matter of fact that the lockout did commence at or about 12.01am but after employee action had commenced…”

See the decision of Taylor J in Australian Rail, Tram and Bus Industry Union v Pacific National Executive Services Pty Ltd [2025] NSWIC 3 here.

Construction contractor found to have contravened right of entry laws

A construction contractor refused a union right of entry to hold discussions with employees. The contractor claimed that the union was not eligible to represent the industrial interests of the relevant employees, and that the union was not entitled to enter the premises because they were used mainly for residential purposes and no work was performed there.

In relation to the union eligibility point, Wigney J said that the focus should be on the permit holder’s purpose for seeking entry and whether the permit holder believed they were entitled to represent the industrial interests of the relevant employees:

“[106] In my view, the text of s 484 of the Fair Work Act is clear and unequivocal in respect of the circumstance which must exist for a permit holder to have a right to enter premises pursuant to s 484. That circumstance is that the permit holder has the specified or prescribed purpose, that purpose being to hold discussions with one or more employees (or TCF award workers) who have the characteristics identified in paragraphs (a) to (c). It is not necessary for a permit holder to demonstrate to the occupier of the premises, or anyone else, before entering the premises, that there are in fact employees on the premises who have those characteristics. Nor is it necessary for the permit holder, or his or her organisation, to prove that fact in order to prove that an occupier of premises breached s 501 of the Fair Work Act because they refused to allow the permit holder to enter the premises pursuant to s 484. All that need be proved is that the permit holder in fact had the prescribed purpose when he or she sought to enter the premises…

[108] Construing s 484 in a way which required a permit holder, before entering premises, to demonstrate to the occupier of the premises that there are, in fact, employees on the premises who have the characteristics in paragraphs (a) to (c) of s 484, would also be impractical and would deprive the provision of much of its beneficial effect. For example, how would a permit holder be able to demonstrate to the occupier of the premises, before entering the premises, that there are in fact employees on the premises who wish to participate in discussions. That could realistically only be demonstrated once the permit holder is on the premises and invites employees to participate in discussions. As the Full Court observed in Australian Building and Construction Commissioner v Powell (2017) 251 FCR 470; [2017] FCAFC 89 at [15]:

… notwithstanding the closely regulated environment of industrial and employment legislation, provisions as to entry on to work sites and the regulation thereof should be construed conformably with the language used by Parliament practically and with an eye to commonsense so that they can be implemented in a clear way on a day-to-day basis at work sites. The legislation needs to work in a practical way at the work site, and if at all possible not be productive of fine distinctions concerning the characterisation of entry on to a site.

[109] It may perhaps be accepted that, before exercising a right of entry under s 484, a permit holder must have a genuine belief that there might be employees on the premises that have the characteristics in paragraphs (a) to (c). That is because the permit holder could scarcely be said to have the specified purpose if they did not believe that employees who have those characteristics might be on the premises. A more difficult question is whether the permit holder must have reasonable grounds for having such a belief. My inclination would be that it is not necessary for the permit holder to prove that they had reasonable grounds. It is, however, unnecessary and perhaps undesirable to express any concluded view in respect of that issue. It was not put to Mr Murphy, or submitted by Elecnor, that he did not have the specified purpose, or that he did not have reasonable grounds for believing that there were employees on the relevant premises who had the characteristics in paragraphs (a) to (c) of s 484. I would also, in any event, have readily concluded from the evidence that Mr Murphy not only believed, but had reasonable grounds to believe, that there were employees on the premises who had the characteristics in paragraphs (a) to (c) of s 484 of the Fair Work Act.”

In relation to the issue regarding the location of the discussions, Justice Wigney said:

“[121] In my view, where it is not safe or practical for a permit holder to enter the premises on which workers perform their active work, or to hold discussions with the workers on those premises, it is open to a permit holder, pursuant to s 484 of the Fair Work Act, to enter other premises that the relevant workers attend for the purposes of their work, such as crib rooms, or lunch rooms, or break rooms. That is so even though, strictly speaking, the workers may not perform any active work in those premises and even when, strictly speaking, those premises may be separate to, or not part of, the premises where the workers perform their active work. Were it otherwise, s 484 would essentially be unworkable or impractical in cases where workers perform work in remote or dangerous premises. This is a case in point. It was neither safe, nor practical, for Mr Murphy and Mr McCann to simply drive out to and enter the easement and sites where the towers and poles were being erected for the purpose of holding discussions with the workers. It was entirely sensible and practical in the circumstances for them to exercise their right of entry at the Buronga Camp and to seek Elecnor’s assistance and cooperation in arranging a location at which the discussions can safely be held.”

See the decision of Wigney J in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Elecnor Australia Pty Ltd [2025] FCA 156 here.

Permission granted for CFMEU to intervene in enterprise agreement approval application

Despite CFMEU members electing alternative bargaining representatives to represent them in bargaining for the Boom Logistics Projects Pty Ltd Enterprise Agreement 2025-2029, the Commission has granted the CFMEU permission to intervene in its approval.

Deputy President O’Keeffe said:

“[20] I should hasten to add that I am not suggesting that there has been anything improper done by the Applicant in this matter.  However, I am inclined to err on the side of caution.  In approving an agreement, I must be satisfied that all of the preconditions for approval have been properly observed.  Having a contradictor – in this case being a union with a sizeable membership in the Applicant’s employ – will in my view assist me in reaching that state of satisfaction.

[21] On that basis, I have decided to exercise my discretion to allow the CFMEU to be heard.  I should make another observation.  It is clear from the decision of the Full Bench in Collinsville that a union may be covered by an agreement if it was a bargaining agent, even if it was not a bargaining agent at the time the agreement was made.1 The notification time for the Agreement was 30 August 2024.  Based on the material provided to the FWC as outlined in [4] above, it is clear that the CFMEU’s members appointed their own bargaining agents on a number of different dates subsequent to 30 August 2024.”

A copy of the decision on the Application by Boom Logistics Projects Pty Ltd [2025] FWC 684 may be found here.

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