Workplace Watch – 19 September 2025: Woolworths and Coles underpayment decision, BHP’s difficulties in the new SJSP regime, Full Court Upholds Multi-Employer Bargaining Approach

Welcome to the latest edition of the KHQ Workplace Watch, our fortnightly summary of key developments in the ER/IR space.

This week’s edition covers the much anticipated decision in the Coles and Woolworths salaried underpayment cases, BHP’s ongoing difficulties in the face of the new SJSP regime, the Full Court’s endorsement of the Fair Work Act’s new multi-employer bargaining provisions and other key regulatory, industrial and case updates.

Case Updates

Federal Court hands down decision in joint Woolworths and Coles underpayment decision

Justice Perram has handed down a lengthy decision in the Federal Court, involving four separate proceedings heard in parallel, relating to the much-publicised underpayment claims against Woolworths and Coles.

The claims, which consisted of two actions brought by the Fair Work Ombudsman and two class actions, were brought on behalf managerial employees at the supermarkets, who contended that the provisions in their contracts which operated to “set-off” entitlements due under the General Retail Industry Award were not sufficient to discharge the applicable Award obligations, and that as a result, the managers had been underpaid.

While Justice Perram was critical of the manner in which the claims and common issues were framed for the hearing, His Honour sought to address the cases’ commonalities at a general level, before applying his reasoning to the facts of each individual proceeding.

Although there was some divergence in His Honour’s findings as related to the operation of specific award provisions and their bearing on the efficacy of the employees’ annualised arrangements, (for example, agreements between employers and employees, overtime entitlements and provisions relating to part-time employees), the most critical  aspect of Justice Perram’s findings was his conclusion  that the relevant contractual offset clauses were “only effective to discharge obligations under the Award within a single pay period”. This finding however is likely to be controversial in light of previous Federal and High Court cases. If not appealed, this decision would have broad consequences for Australian employers, many of whom undertake similar approaches to “setting off” entitlements under contracts of employment.

Likewise, the decision contains important commentary on the nature and extent of employers’ record-keeping obligations – in respect of which it was found that both Supermarkets had engaged in substantial non-compliance.

Read the decision here

BHP’s SJSP stay application rejected

The Federal Court has rejected an application from BHP in relation to Same Job Same Pay Orders made by the Fair Work Commission, requiring the company to pay employees of its outworker entities at the same rates as its EA-covered employees at three coalmines in Queensland’s Bowen Basin.

While the Fair Work Commission made the orders and accepted an undertaking from the outworker entities to backpay employees from July 2025, that undertaking was subject to the resolution of interlocutory proceeding before Justice Wheelahan.

The interlocutory application sought to stay the Commission’s orders, pending the resolution of BHP’s substantive application for judicial review before the Full Federal Court, which seeks orders for the Commission’s decision to be quashed.

While BHP advocated for the stay of the orders on the basis that the recoupment of the back-paid monies would be  logistically difficult in the event that it was successful in the Full Court hearing, Justice Wheelahan rejected that argument, finding that “the subject matter of [the] proceeding [was] the legality of the Commission’s orders, and not the consequences of complying with the…orders”.

Accordingly, His Honour found that the exceptional circumstances necessary for the granting of the stay had not been established, notwithstanding the “considerable inconvenience and difficulty” that His Honour acknowledged would arise in relation to the recovery of the money if BHP succeeds before the Full Court.

Read the full decision here

$150,000 damages awarded to sexually assaulted hospitality worker

The Queensland Industrial Relations Commission has awarded a significant damages payment to a former hospitality worker after finding that the Second Respondent in the proceedings contravened s118 of the Anti-Discrimination Act 1991 (Qld) by propositioning the employee for sex, engaging in further inappropriate verbal conduct, and perpetrating a sexual assault against her.

As the first Respondent in the proceeding (the employing entity) had been deregistered by the time the matter went to hearing, the Applicant pressed her claim only against Second Respondent – one of the business’ owners and an employee within the business.

Despite the fact that the Second Respondent failed to participate in the QIRC proceedings, the Applicant was able to rely on the s 79 of the Evidence Act to establish the circumstances of the sexual assault in the civil claim, as the Second Respondent had previously been convicted of an offence in relation to those circumstances, in separate criminal proceedings.

In awarding the Applicant $140,000 in damages, $10,000 in aggravated damages and ordering the Second Respondent to pay approximately two-thirds of the Applicant’s legal costs, Deputy President Hartigan acknowledged that the Applicant  (a migrant worker and single mother) was “legally unsophisticated and a vulnerable litigant due to the nature of the sexual harassment and the impact of it on her.” Contrastingly, the Deputy President found that the Second Respondent’s conduct involved “reckless disregard” for the Applicant which was “predatory and engaged in for his own wanton gratification”.

Read the full decision here

Full Court upholds multi-employer bargaining approach

The Full Court has upheld a Full Bench of the Fair Work Commission decision authorising multi-employer enterprise between Peabody Energy Australia, Ulan Coal Mines and Whitehaven Coal mining (the employers) and the Association of Professional Engineers, Scientists and Managers Australia (APSEMA).

The case arose because APSEMA had been successful in the FWC in applying for a single interest employer authorisation under s249 of the Fair Work Act. The employers sought to have the Commission’s decision quashed on the basis that the Commission had failed to form the state of satisfaction in relation to the matters which must be considered pursuant to s 249 –  which include the “clearly identifiable common interests” of the employers and the nature of the enterprises” to which any proposed multi-employer agreement would apply.

In rejecting the employers’ claims that the approach undertaken by the Full Bench in relation to those considerations was at “too high a level of generality”, the Full Court found that the Full Bench’s decision had to be properly set against the Fair Work Act’s provisions that there is a “presumption” of common interest for employers with 50 or more employees, unless the employers could rebut it. In this way the Full Court found that it was open on a wide evaluative discretion for the Full Bench to find that it had not been.

Interestingly, our experience is that unions are using the threat of multi-enterprise bargaining as leverage to extract single enterprise outcomes. It would seem that this happened here because the APESMA has since been successful in securing single enterprise agreements with these employers.

Read the full decision here

Other Updates

Automation and AI spark wave of redundancies in Australia’s big banks

Major banks are implementing widespread redundancies, with ANZ, NAB, Westpac and Bendigo Bank announcing thousands of job cuts across technology and support roles. The Finance Sector Union has raised concerns over insufficient consultation and the impact on workers’ rights.

The Finance Sector Union’s national president, Wendy Streets, condemned the redundancies at NAB and ANZ as “shameful”, arguing they reflect a sector-wide agenda of cost-cutting at the expense of workers and communities.

Watch this space on the impact of AI as it would now seem that there is now political agitation in Canberra by the union movement for a regulatory response.

Safe Work Australia hosts national research summit on WHS workers’ compensation

Earlier this month, Safe Work Australia brought together key stakeholders from government, unions, industry bodies and employer groups to tackle some of the most pressing challenges in work health and safety and workers’ compensation.

It was reported that discussions focused on the WHS impacts of climate change, the risks and opportunities of emerging workplace technologies, translating research into better outcomes for injured workers, and strengthening knowledge of the health effects of chemical exposure.

The Minister has indicated that harmonisation is a priority but it would seem that each jurisdiction is drifting further and further apart as opposed to common ground when one for example looks at the various workers compensation reforms enacted and/or proposed across Victoria, Queensland and New South Wales.

Again one to watch!

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