Workplace Watch – 20 August 2025: Qantas penalised, jurisdictional objections in unfair dismissals, new obligations re digital work systems
Welcome to the latest edition of the KHQ Workplace Watch, our fortnightly summary of key developments in the ER/IR space.
In this edition we cover the Federal Court’s significant penalty against Qantas for breach of the general protections provisions, a decision of the Fair Work Commission Full Bench regarding the approach to determining multiple jurisdictional issues in unfair dismissal claims, a successful prosecution by the National Heavy Vehicle Regulator, and key regulatory and legislative updates including changes to Victoria’s workers’ compensation legislation, the New South Wales government’s proposed legislation to deal with allocation of work by or using a digital work system and further developments in relation to amendments to awards and legislation dealing with employees working from home.
CASE UPDATES
Federal Court awards $90 million penalty against Qantas
In the latest instalment in the long running litigation between the Transport Workers’ Union (TWU) and Qantas, the Federal Court has ordered that Qantas pay a pecuniary penalty of $90 million. $50 million will be paid to the TWU and a further hearing has been set down to determine how the remaining $40 million should be distributed.
The background to this case will be well known to Workplace Watchers. In July 2021, Justice Lee found that Qantas engaged in unlawful adverse action by terminating the employment of ground handlers as part of a decision to outsource ground handling operations. Despite the Court noting that Qantas had sound commercial reasons to make the outsourcing decision, Qantas was found to have taken unlawful adverse action against the ground handlers to prevent them from exercising a workplace right, which was the ability for the employees to, in the future, organise and engage in protected industrial action and participate in bargaining.
Read the full decision here and the Federal Court’s summary here.
Fair Work Commission Full Bench sets out appropriate approach when considering multiple jurisdictional issues
The Full Bench of the Fair Work Commission has found that there is an appropriate sequence to follow in unfair dismissal matters involving multiple jurisdictional objections. In this matter, the employer raised jurisdictional objections that: (1) the employee was not dismissed; and (2) the application was filed out of time.
The Full Bench found it was necessary for the Commission Member who originally heard the matter “to have determined as a matter fact, rather than to have assumed, whether there was a dismissal, determined whether the application was filed out of time measured from the 21 day time limit (which runs from the date the dismissal took effect), and considered any application for extension of time” (see [69] of the decision).
Read the decision here.
Fair Work Commission considers whether an aged care worker, engaged through a digital platform, is an ‘employee’
The Fair Work Commission applied the new test of employment in s15AA of the Fair Work Act 2009 (Cth) by considering the ‘the real substance, practical reality and true nature of the relationship’ between an aged care worker, engaged through the digital platform Mable to provide care to two aged care residents, and the retirement living company which operated the aged care home where the worker performed her duties.
Whilst the Commission found that “there is no question that [the retirement living company] exercised a degree of oversight, even control, over the relationship“, this “does not necessarily suggest the existence of an employment relationship” (see [21] of the decision). This is because apart from ‘control’, there were no other factors which suggested that the retirement living company employed the worker. Ultimately, the worker presented Mable with invoices under an ABN and Mable paid the invoices which, the Commission found, strongly weighed against the existence of an employment relationship.
Read the decision here.
The National Heavy Vehicle Regulator successfully prosecutes NSW based earthmoving company receiving $1.2 million fine
A heavy vehicle driver employed by an earthmoving company was involved in a fatal collision in 2021, when the heavy vehicle collided with a light vehicle.
An investigation into the incident revealed that the driver of the heavy vehicle had suffered significant health issues for years. The company admitted to backdating the commencement date of its safety manual and it had insufficient policies and procedures to determine whether its drivers were fit to perform their duties.
The company was found guilty of a Category 2 offence under the Heavy Vehicle National Law and was fined $1.2 million and ordered to pay $75,000 in prosecution costs.
Read the media release from the NHVR here.
REGULATORY UPDATES
Changes to Victoria’s worker’s compensation legislation pass parliament
Changes to Victoria’s Workplace Injury Rehabilitation and Compensation Act 2013 have passed Parliament.
Some changes commenced on 6 August 2025, which include changes to the extension and duration of provisional payments, new lump sum payments for economic and non-economic loss and a broader range of therapy and support services.
A number of other changes will commence on a day to be proclaimed or by 1 July 2027. These changes include an increase to weekly pensions for dependent children and additional obligations on employers to provide training, assistance and facilities for return to work coordinators.
Access the Bill here and the Explanatory Memorandum and Second Reading Speech here.
NSW Government introduces Bill addressing the use of artificial intelligence
The Workers Compensation Legislation Amendment (Reform and Modernisation) Bill 2025 has been introduced into NSW Parliament, which creates new obligations for employers that allocate work by digital work systems including algorithms, artificial intelligence, automation, online platforms or software.
If passed by NSW Parliament the legislation would create a new duty in the Work Health and Safety Act 2011 (NSW) for persons conducting a business or undertaking using digital work systems to allocate work to ensure, so far as reasonably practicable, that the system does not create health and safety risks. This includes considering any risks regarding excessive or unreasonable workloads, performance measures, monitoring or surveillance or discriminatory practices.
Access the Bill here and the Explanatory Notes and Second Reading Speech here.
Fair Work Commission and Victorian Government seek feedback regarding work from home rights
The Fair Work Commission is inviting submissions and supporting evidence in relation to its ongoing matter to develop a working from home term to be inserted in the Clerks-Private Sector Award 2020. Interested parties have until 19 August 2025 to lodge submissions and supporting evidence, with replies due by 2 September 2025.
Access the most recent statement from the Commission regarding the development of a working from home term here and additional information on the matter here.
The Victorian Government is also inviting submissions in relation to its proposed working from home legislation (addressed in a previous edition of the Workplace Watch here). Interested employees or business can make submissions until 28 September 2025. The Victorian Government website to make submissions is here.
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