Workplace Watch – 3 March 2025: Family and Domestic Violence Leave, FWC suspends action in the Sydney Trains Dispute

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

• the Federal Government responds to the independent review into Family and Domestic Violence Leave and reforms proposed to the Fair Entitlements Guarantee;
• the Victorian Government announces the anticipated commencement date of the long awaited psychological safety amendments to the OHS Regulations;
• updates from the Fair Work Commission including recent appointments, the new model terms for enterprise agreements and updates to the Commission’s information pages;
• transport industry updates with the TWU making an application for a contractual chain order in the cash in transit industry;
• recent decisions of the Full Federal Court of Australia concerning the prohibition on payments during industrial action and intractable bargaining; and
• the Full Bench of the Fair Work Commission suspends industrial action in the ongoing Sydney Trains dispute

LAW REFORM

Federal Government publishes response to Family and Domestic Violence Leave Review

The Australian Government published its response to the final report of the Independent review of the paid family and domestic violence leave entitlement in the Fair Work Act 2009. The review was conducted by Flinders University and tabled in both Houses of Parliament on 9 October 2024. The final report made 12 findings and 5 recommendations.

A joint media release from Senator the Hon. Katy Gallagher (Minister for Finance, Women and Public Service) the Hon. Amanda Rishworth MP (Minister for Social Services) and Senator the Hon. Murray Watt (Minister for Employment and Workplace Relations) confirmed that the recommendations will be addressed by:

• Continued focus on raising awareness to integrate the leave as an ordinary workplace practice across Australian workplaces;
• Tailored guidance for priority cohorts, such as First Nations, culturally and linguistically diverse and casual employees;
• Training programs for first responders, health, allied health and community frontline workers who commonly interact with victim-survivors on the entitlement;
• Additional strategies to improve awareness and access to the entitlement, opportunities to better understand usage of the leave, and further evaluation of the leave through the upcoming statutory review of Closing Loopholes reforms.

The Government’s response may be found here and the review’s home page with the Report and background materials found here and the Joint Media Release may be found here.

Invitation to Respond – Fair Entitlements Guarantee

The Department of Employment and Workplace Relations has invited interested stakeholders to respond to questions regarding potential reforms to address corporate misuse of the Fair Entitlements Guarantee (FEG). FEG is a government safety net to ensure employees receive their entitlements in the event of a business failure.

The Department has released the Addressing corporate misuse of the Fair Entitlements Guarantee discussion paper which outlines the proposed reforms.

The potential reforms aim address misuse of the FEG by:

• deterring improper reliance on FEG, and
• increasing the recovery of amounts advanced under FEG.

The Department is interested in hearing from stakeholders including those from the insolvency industry and peak bodies and organisations.

Responses should be submitted via the Consultation Hub by 31 March 2025.

The discussion paper and submission portal may be found here and the Joint Media Release may be found here.

Support for employers – Coal Long Service Leave Scheme

In December last year, a Full Court of the Federal Court determined that certain employees were eligible for the black coal mining industry’s portable long service leave scheme.

The Minister for Employment and Workplace Relations has announced that the Australian Government is working closely with the Coal LSL Corporation and industry representatives to consider options for providing support to employers impacted by this decision.

A copy of the Media Release may be found here and a copy of the Full Court’s decision in Hitachi Construction Machinery (Australia) Pty Ltd v Coal Mining Industry (Long Service Leave Funding) Corporation [2024] FCAFC 166 may be found here.

Family and Injured Workers Advisory Committee

The Minister for Employment and Workplace Relations confirmed that six members have been appointed on three-year terms to the inaugural Family and Injured Workers Advisory Committee. The Committee is to advise the Minister, Comcare, the Australian Maritime Safety Authority, and the National Offshore Petroleum Safety and Environmental Management Authority on matters related to the needs of those affected by a serious workplace injury or fatality. The Committee will also help inform on relevant Comcare policies, practices and strategies.

The Committee was established following recommendations from the 2018 Senate Inquiry report They never came home – the framework surrounding the prevention, investigation and prosecution of industrial deaths in Australia.

A copy of the media release may be found here.

WHS Updates

New Regulations Addressing Psychological Safety in Victoria

The new Occupational Health and Safety (Psychological Health) Regulations which were first announced in 2021 are now anticipated to be made in October and take effect on 1 December 2025. The draft regulations released in 2022 impose obligations to identify and control psychosocial hazards in Victorian workplaces.

The new regulations are being made in response to recommendations made by the Boland Review (2018), the Royal Commission into Victoria’s mental health system (2019) and the Productivity Commission inquiry into mental health (2020).

A copy of the Victorian Government’s media release may be found here and WorkSafe Victoria’s update may be found here.

Regulator updates

Fair Work Ombudsman announces legal action against John Setka and the CFMEU

The FWO has commenced legal action against the CFMEU and its former Victorian Secretary John Setka for allegedly attempting to coerce the AFL into dismissing former Australian Building and Construction Commissioner, Stephen McBurney.

Additionally, the FWO alleges that Mr Setka took adverse action against Mr McBurney because he had exercised workplace rights, including initiating and/or participating in more than 50 court actions against the CFMEU in his previous role as the ABCC Commissioner.

“Goodluck to the AFL with any plans to build any projects, as our members will not be building or supporting any projects that the AFL are involved in” is one of statements the FWO has referred to in support of its allegations.

The CFMEU and Mr Setka are facing penalties of up to $93,900 and $18,780, respectively per alleged contravention of sections 340 and 355 of the Fair Work Act.

A copy of the Fair Work Ombudsman’s media release may be found here.

Fair Work Commission UPDATES

Five Appointments to the Fair Work Commission

The Federal Government has recommended that five new members be appointed to the Fair Work Commission by the Governor General. The appointments coincide with the one-year anniversary of the second tranche of the Closing Loopholes reforms. The Minister for Employment and Workplace Relations, the Hon Senator Murry Watt said that the appointees will assist with the performance of new functions arising from the reforms such as regulated labour hire orders, ‘employee-like’ workers performing digital platform work, ‘unfair contracts’, and the right to disconnect. The appointees are:

• Mr Kamal Farouque has been appointed as Deputy President, commencing on 7 April 2025.
• Mr Trevor Clarke has been appointed as a Commissioner, commencing on 24 March 2025.
• Mr Adam Walkaden has been appointed as a Commissioner, commencing on 24 March 2025.
• Ms Jessica Rogers has been appointed as a Commissioner, commencing on 1 April 2025.
• Ms Adele Labine-Romain has been reappointed as an Expert Panel Member, commencing on 12 March 2025.

A copy of the Minister’s Media Release may be found here.

Unfair deactivation and new casual employee choice of employment

The Fair Work Commission has updated its website with new information regarding its new powers introduced through the Closing Loopholes No.2 reforms. Information has been published in regarding the Fair Work Commission’s powers to deal with disputes about unfair deactivation and terminations for gig workers and the new casual ‘conversion’ regime.

The Fair Work Commission’s announcement may be found here. The announcement also addresses the new model terms for enterprise agreements.

Unfair deactivation and unfair termination of regulated workers

The Fair Work Commission can receive applications from regulated workers, often called ‘gig workers’. There are two types of regulated workers. Employee-like workers, who do paid work through a digital labour platform  and regulated road transport contractors, who work in the road transport industry.

Regulated workers may make applications to the Commission if they (employee-like workers) believe they have been unfairly deactivated from a digital labour platform or they (eligible road transport contractors) believe their services contract in the road transport industry has been unfairly terminated.

The deactivation or termination must have occurred on or after 26 February 2025 and the regulated worker must earn less than the contractor high income threshold of $175,000. An application must be made within 21 calendar days after the deactivation or termination. Extensions of time may be granted in exceptional circumstances.

The Fair Work Commission’s information page for unfair deactivations or terminations may be found here.

New employee choice pathway

The new ‘employee choice’ pathway allowing eligible casual employees to choose to become a full-time or part-time employee commenced on 26 February 2025.

The employee choice pathway replaces the previous casual conversion regime, although that process still applies until 26 August 2025 for small business employers if the casual employees started working before 26 August 2024.

Eligible casual employees ‘choose’ to become a full-time or part-time employee by giving notice that the employee no longer believes that they are a casual employee. Employers may dispute this notice and if the dispute cannot be resolved, the Fair Work Commission can deal with the dispute by mediation or conciliation, making a recommendation or expressing an opinion, or if the dispute remains unresolved, a Commission Member can arbitrate the matter.

The Fair Work Commission’s information page for the casual ‘employee choice’ process, including a link to the application forms may be found here.

New Model Terms for enterprise agreements

Following a consultation and engagement process, the Full Bench of the Fair Work Commission has issued its decision and determination of the new model consultation, disputes and flexibility terms for enterprise agreements, and the model disputes term for copied State instruments.

The new model terms commenced on 26 February 2025.

The Fair Work Act provides that if an enterprise agreement does not have compliant flexibility and consultation terms, the model terms will be included in the enterprise agreement. This is not the case for the dispute resolution term as noted by the Full Bench:

“[34] Unlike the provisions dealing with the model flexibility term and model consultation term, the model disputes term is not taken to be included in an enterprise agreement that fails to include a term which the Commission is satisfied meets the requirements set out in s 186(6) of the Act.9 If the Commission is not satisfied that an enterprise agreement includes a term about settling disputes that complies with the requirements of s 186(6), the agreement may nonetheless be approved if the Commission accepts an undertaking that meets the concern under s 190. Otherwise, the agreement could not be approved. The model term is not automatically included. The role of the model term for dealing with disputes for enterprise agreements is to provide a model that those drafting an enterprise agreement may elect to include or not.”

Model Flexibility Term

The determination of the new model flexibility clause may be found here. The key differences are:

• a new clause 2: individual flexibility arrangements may only be made after an employee has commenced employment with the employer;
• a new clause 3: a requirement that the employer give the employee a written proposal of an individual flexibility arrangement proposed by the employer and that steps be taken to ensure that the employee understands the proposal if the employee has limited English language skills;
• a new clause 4: an obligation on an employer to meet with the employee to discuss an individual flexibility arrangement proposed by an employer if requested by the employee;
• a new obligation to require the written individual flexibility arrangement to describe how the arrangement may be terminated; and
• a new clause 10 which provides that the dispute settlement procedure in the enterprise agreement to deal with dispute that arises concerning the flexibility arrangement.

Model Consultation Term

One of the issues in consultation regarding the new model consultation term was whether the trigger for consultation should change from once a “definite decision” has been made to when the employer is “proposing” the change. Following consultation, the Full Bench determined to retain the trigger to a workplace change arising from a “definite decision”.

The determination of the new model consultation term may be found here. The key differences are:

• the obligation on employers to “discuss” the workplace change has been changed to “consult” to make clear that the obligation “is intended to include discussion, receipt of feedback and consideration of contributions made by employees and their representatives.”;
• employers are now required to provide the “reasons or justification” for the proposed change to permit employees and their representatives to understand what is being sought by the workplace change and potentially explore alternative methods of achieving the same outcomes; and
• a new clause 8 which requires employers to communicate the outcome of the consultation and take reasonable steps to ensure that it is understood by employees.

Model Dispute Term

The determination of the new model dispute term may be found here. The key differences are:

• a new clause 2 which sets out the potential parties to a dispute which are an employee, an employer and an employee organisation; and
• a new clause 6 which provides that the Fair Work Commission may deal with a dispute even if the requirement for discussions to resolve the dispute at the workplace level have not been complied with.

The Fair Work Commission’s announcement may be found here, and the major case page containing previous submissions, the decision ([2025] FWCFB 39) and model terms determinations may be found here.

Transport industry Updates

TWU lodges application for a contractual chain order for cash in transit industry

The TWU has made an application for a road transport contractual chain order to cover parties who have a contract or arrangement with a bank and all subsequent contracts or arrangements. The work to be covered by the order is the transport of cash and other valuables and the performance of ATM work in the cash in transit industry.

The TWU has requested that the matter be dealt with on an urgent basis and a conference will be conducted on 11 March 2025 to consider the matters raised by the application.

A copy of the Fair Work Commission Statement ([2025] FWC 521) may be found here and the new major case page may be found here.

Case updates

Suspended industrial action to achieve a ‘cooling off’ period

Sydney Trains and NSW Trains filed a joint application with the Fair Work Commission to suspend industrial action under s. 425 of the Fair Work Act 2009. The application was made following intensive negotiations between the employers and the ‘Combined Rail Unions’ comprised of the RTBU and other unions, and continuing industrial action.

Most recently the RTBU commenced a ‘go slow’ work ban on 14 February 2025 in response to the rejection of the CRU’s claim for a $4,500 sign-on bonus.

The Full Bench granted the application, noting that it was in the public interested to pause any disruption to train services in Sydney and regional NSW. The suspension was granted until 1 July 2025, short of the requested period of 6 September 2025. The Full Bench said (in its expedited reasons):

“[13] We reject the submission of Sydney Trains and NSW Trains that the suspension should apply until 6 September 2025, being the earliest time they can apply for an intractable bargaining declaration to terminate all protected industrial action and proceed to arbitration. The purpose of a suspension under s 425 is to achieve a cooling off period in order to enhance the prospects of an enterprise agreement being reached, and not to operate as a de facto termination of bargaining. However, we consider that a relatively lengthy period of suspension is warranted. The evidence demonstrates that there have been previous instances of the voluntary suspension of protected industrial action for short periods, but this has not led to an agreement being reached, and protected industrial action has simply resumed at the end of each period. A longer period of suspension is, we consider, required to permit the parties to ‘cool off’, lock in the matters that have been agreed in principle, resolve the disputed issue, draft a final agreement and have it put to a vote free from the pressures imposed upon them as a consequence of taking protected industrial action.”

The ETU has filed an application in the Federal Court of Australia seeking relief in respect of this decision (NSD269/2025).

Full Bench decision with expedited reasons: Application by Sydney Trains and NSW Trains [2025] FWCFB 38.

Full Bench decision with detailed reasons: Application by Sydney Trains and NSW Trains [2025] FWCFB 46.

Full Court considers strike pay obligations on waterfront

The Full Court of the Federal Court of Australia has dismissed an appeal from the CFMEU in a decision which considered the issue of payment obligations during protected industrial action.

The enterprise agreement which covered the employees in question provided an entitlement for employees to receive payment at a higher ‘secondary time rate’ for all hours worked above the annual ordinary hours threshold of 1560 hours.

The enterprise agreement provided that once the 1560 hours had been reached, the employee was entitled to be paid 30 hours at the ordinary rate plus the applicable overtime rate for each shift worked.

Employees who had exceeded the threshold took protected industrial action by refusing to work shifts on which they were rostered. They were not paid for the shifts they refused to work.

The CFMEU contended that the enterprise agreement imposed an obligation on the employer to pay employees for the 30 hours regardless of whether the employee was rostered to work, actually worked or was ready and willing to do so. Further, the union contended that the entitlement to the 30 hours at the ordinary rate related to past performance and was therefore not impacted by the prohibition on paying employees engaged in protected industrial action under s. 470(1) of the Fair Work Act 2009.

The Court (Justices Katzmann, Raper and Kennett) rejected the CFMEU’s contentions and dismissed the appeal with separate reasons.

Justice Katzmann said:

“80    I do not accept the Union’s submission that the payments which were withheld were not payments in relation to the duration of the industrial action because they were payments in relation to work already performed. Absent the industrial action, the employees would have been paid at the Level 1 ordinary rate regardless of whether they were rostered to work. The effect of s 470, however, is that, once they were rostered for work and refused to work a rostered shift, their employers were prohibited from making those payments for the total duration of the industrial action.

81    As the respondents required the relevant employees to work the shifts to which they were allocated, the effect of s 470(4) is that the payments were prohibited by s 470 unless their refusal to work those shifts was not a contravention of their obligations under the Agreement. Clause 16.2 imposed an obligation on employees to work in accordance with the arrangements in the following subclauses and the roster and related rules in Sch 4. Roster rule 1 imposed an obligation on the employees to make themselves available for allocation to shifts in accordance with the roster. Clause 17.2 expressly contemplated that employees might be required to work a reasonable amount of overtime to meet operational requirements. The Union never suggested that the allocation of the shifts the employees refused to work was not reasonable. In these circumstances, the employees’ refusal to work the shifts allocated to them in the relevant period was a contravention of their obligations under the Agreement. It follows that s 470 applied (see s 470(3)(a) and s 470(4)(c)). It also follows that “the total duration of the industrial action is, or includes, the period of overtime to which the ban applies” (see s 470(5)).”

CFMEU v Sydney International Container Terminals Pty Ltd [2025] FCAFC 19 .

Full Court decision on “agreed terms” for an intractable bargaining workplace determination

The United Firefighters Union made a judicial review application in respect of the Full Bench decision in United Firefighters’ Union of Australia v Fire Rescue Victoria [2024] FWCFB 43, which had found that there were no “agreed terms” of the proposed enterprise agreement that was the subject of an intractable bargaining workplace determination. The Union sought writs of certiorari to quash the decision of the Full Bench and a writ of mandamus to require the Fair Work Commission to determine the agreed terms. The Full Court dismissed the application finding that the Union was not entitled to the relief it sought.

The Court said:

“28    Once made, the intractable bargaining workplace determination will have an effect on legal rights. But in itself, the impugned decision of the Commission has no operative legal effect. It rises no higher than the expression of the Commission’s opinion, under a previous state of the law, as to what terms appeared, on the evidence then before the Commission, to be agreed. Nor is this expression of opinion an essential preliminary to making the workplace determination. As explained above, the Commission may or may not inform itself by reference to the opinions expressed in the decision. But the FW Act does not provide for any staged process within which the Commission’s decision has any place. And the task the Commission must perform when making the workplace determination will be to apply the amended provisions of the FW Act, which will require a different inquiry from that undertaken previously.”

United Firefighters’ Union of Australia v Fire Rescue Victoria [2025] FCAFC 16

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