Workplace Watch – 2 December 2024: Australia’s privacy law, QLD HSR rights removed, Senate Select Committee tables AI report 

We are approaching the end of the year, but there is still no shortage of news! In this fortnight’s edition of the KHQ Workplace Watch: 

• Federal Parliament has passed amendments to the Privacy Act, and a Senate Select Committee issued a report on Artificial Intelligence which has implications for workplaces, amongst other things.  

• Safe Work Australia has developed materials to assist employers with migrant and multicultural workers.  

• The Fair Work Commission has concluded its review of the C14 & C13 rates which impacts 47 modern awards and has issued further statements in the gender-based undervaluation awards review.  

We also cover a number of cases from the Fair Work Commission including an application for a single interest employer authorisation, a successful application to suspend protected industrial action, and recent Full Bench decisions on preventing multiple actions and the ‘fairly chosen’ requirement in enterprise agreements. 

LAW REFORM 

Amendments to Australia’s privacy laws 

The Australian Parliament passed the Privacy and Other Legislation Amendment Bill 2024 on 29 November 2024, which amends the Privacy Act 1988 (Cth) in what the Office of the Australian Information Commissioner (OAIC) described as a significant step forward in advancing privacy protections.  

These major amendments provide expanded enforcement and investigation powers to the OAIC and impose greater obligations on organisations regulated by the Privacy Act. Some of the key reforms include: 

• A statutory tort for serious invasions of privacy, which creates a cause of action for individuals whose privacy has been invaded (until now an aggrieved individual could only make a complaint to the OAIC). Individuals, including employees, will have the power to seek injunctive relief to prevent their privacy from being invaded and damages (including exemplary or punitive damages to a cap of $478,550 or the maximum that may be awarded at law). 

• The OAIC’s enforcement and investigation powers have been increased. The OAIC may now investigate breaches of the Privacy Act, with the amendments including new tiers of civil penalties and the ability to issue infringement notices of 200 penalty units ($66,000) for each contravention.  

• Courts may now award a new penalty for the interference with privacy of individuals. The penalty of up to 2,000 penalty units ($660,000) will supplement the existing penalty for serious interference with the privacy of an individual. 

Information on the Bill including the explanatory memorandum can be found here and the OAIC media release can be found here. 

Queensland HSR rights removed before commencement  

Health and Safety Representatives and Work Health and Safety entry permit holders were due to receive new powers on 1 January 2025 to permit the taking of videos, photos, measurements and tests of risks, hazards and suspected contraventions at workplaces.  

Those rights, implemented through the Work Health and Safety and Other Legislation Amendment Act 2024 (WHS Act) and the Electrical Safety and Other Legislation Amendment Act 2024 (ES Act) have now been repealed and amended by the new Queensland government after the Brisbane Olympic and Paralympic Games Arrangements and Other Legislation Amendment Act 2024 was passed on 28 November 2024 and accented to on 29 November 2024. 

The explanatory document explains that the revised powers will minimise the regulatory burden for employers and minimise complexity for industry and workers, stating that the amendments: 

• omit recently introduced provisions to allow WHS entry permit holders and health and safety representatives to take photos, videos, measurements and conduct tests before these provisions come into effect on 1 January 2025;  

• reintroduce the requirement for WHS entry permit holders to provide at least 24 hours’ notice before entering a workplace to investigate a suspected contravention of the WHS Act or ES Act, except in circumstances where there is an immediate or imminent risk to a worker’s health and safety; and 

• clarify that health and safety representatives can issue cease work notices to workers and not to employers.  

A copy of the act and explanatory note are available here. 

Dr Rod Harrison appointed to National Construction and Industry Forum 

The Minister for Employment and Workplace Relations, Senator Murray Watt, announced that Dr Rod Harrison has been engaged to work with National Construction and Industry Forum members (representing employers and unions) to develop a blueprint for the building and construction industry. 

The Minister’s announcement can be read here. 

Senate Select Committee tables AI report 

The Senate Select Committee on Adopting Artificial Intelligence (AI) tabled its final report on 26 November 2024. The Committee inquired into the opportunities and impacts arising out of the update of AI technologies in Australia.  

Of the 13 recommendations, those most applicable to workplace relations and safety are: 

• Recommendation 5: That the Australian Government ensure that the final definition of high-risk AI clearly includes the use of AI that impacts on the rights of people at work, regardless of whether a principles-based or list-based approach to the definition is adopted.  

• Recommendation 6: That the Australian Government extend and apply the existing work health and safety legislative framework to the workplace risks posed by the adoption of AI.  

• Recommendation 7: That the Australian Government ensure that workers, worker organisations, employers and employer organisations are thoroughly consulted on the need for, and best approach to, further regulatory responses to address the impact of AI on work and workplaces. 

Recommendation 6 anticipates a regulatory response to address a range of issues (including excessive surveillance) but noted the appropriate regulatory response as outside the scope of the inquiry. The Committee’s view on the workplace impacts of AI after considering submissions included concerns about “(…) evidence regarding the impacts of AI on workers’ rights and working conditions, particularly where AI systems are used for workforce planning, management and surveillance in the workplace.” (see [4.158]). 

The dissenting report, prepared by Coalition members of the Committee only supported Recommendation 6 on the basis that ‘workplace risks’ be limited to legitimate risks, taking issue with the “overly liberal” description of workplace risks by several submitters to the inquiry. 

The Committee also noted that the House Standing Committee on Employment, Education and Training’s Inquiry into the Digital Transformation of Workplaces was considering similar issues. The combination of the Senate Committee’s final report and the outcome of the House Standing Committee’s report as well as the amendments to the Privacy Act 1988 (Cth) (see above) and the potential for further privacy reforms will likely result in significant legislative upheaval on workplace surveillance in the coming year(s). 

The final report, a dissenting report, additional comments and documents are available here.  

Increased powers proposed for Commonwealth workplaces 

The Federal Government introduced the Commonwealth Workplace Protection Orders Bill 2024 on 27 November 2024. The explanatory memorandum states that the Bill will provide legal protections for Commonwealth workplaces and workers and deter acts of violence and other harmful behaviours by members of the public. The definitions of  “Commonwealth worker” will include contractors and subcontractors, and “Commonwealth workplace” includes any place where work is carried out by a Commonwealth worker.  

The Bill enables an authorised person of a Commonwealth entity to apply to a state or territory Magistrates or Local court (as applicable), Federal Court or the Federal Circuit and Family Court of Australia for a workplace protection order (WPO) on behalf of a Commonwealth worker or workplace against a person who has engaged in personal violence against a Commonwealth worker or workplace.  

The WPO may contain any conditions or prohibitions that the Court thinks necessary to protect the safety of the Commonwealth worker or individuals in the workplace including restrictions on an individual’s access to the workplace or their contact with an individual worker or class of Commonwealth workers. 

The draft Bill and Explanatory Memorandum may be viewed here. 

Regulatory Updates 

Safe Work Australia publications for migrant and multicultural workers 

Safe Work Australia has developed a worker information sheet, Work health and safety in Australia, which is available in 11 languages and provides an overview of work health and safety laws, including employer duties, worker rights, information on hazards and what to do if a worker is injured at work.  

A fact sheet for employers has also been developed to assist employers on communicating with migrant and multicultural workers about work health and safety. 

The information sheet, fact sheet and a case study are available here. 

FAIR WORK COMMISSION UPDATES 

Full Bench concludes review of C14 & C13 rates 

The Full Bench of the Fair Work Commission has concluded the review of C14 and C13 rates in 47 awards and has published the final determination for those awards.  

C14 and C13 are the lowest and second-lowest classification and pay levels in the Manufacturing and Associated Industries and Occupations Award 2020, and most federal awards have aligned their equivalent classifications to that award since the National Wage Case August 1989. The purpose of the review was to amend the awards where necessary to ensure that the C14 classification was an introductory/transitory classification and that the C13 was the lowest ongoing classification. 

See Review of C14 and C13 rates in modern awards [2024] FWCFB 438, and the major case page (which also has all 47 determinations) which is available here. 

 Statements issued in gender-based undervaluation awards review 

The Full Bench of the Fair Work Commission has issued a statement in the Gender undervaluation – priority awards review major case publishing the second tranche of data from the ABS employee earnings and hours survey requested by the Australian Council of Trade Unions (ACTU) on 4 October 2024.  

The statement also refers to and attaches a report prepared by the Jumbunna Institute for Indigenous Education and Research at University of Technology Sydney Business School which was engaged by the Commission to conduct additional research in respect of the Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020. 

A copy of the statement is available here. 

The President of the Fair Work Commission, Justice Hatcher, also issued two further statements: 

• The first was in response to a joint note from the ANMF, HSU and UWU in respect of the methodology used to calculate the wage rates in the determination for the Aged Care Award 2010. A copy of that statement is available here. 

• The second was in respect of the timetable for the hearing of the matters in December 2024. A copy of that statement is available here. 

The major case page is here. 

Statement issued re Amusement, Events and Recreation Award 2020 

The Full Bench of the Fair Work Commission has issued a Statement regarding the variation of the Amusement, Events and Recreation Award 2020 at the Commission’s own initiative.  

The Statement confirms that the scope of the matters to be considered are: 

• changes to the classification structure at Schedule A of the Amusement Award to more clearly identify the roles of ‘arts workers’;