Workplace Watch – 30 September 2026: ruling on transfer of business & labour hire orders, VCAT lesson on genuine requirements of a role

Welcome to the latest edition of the KHQ Workplace Watch where we give you insights on key developments in workplace relations and safety law and what that means for you as an employer, HR practitioner, in house legal counsel or fellow IR enthusiast.

In this edition, we cover the Full Bench’s first ruling on how the transfer of business provisions interact with regulated labour hire arrangement orders, a costly lesson from VCAT on properly assessing the genuine and reasonable requirements of a role, a Full Federal Court decision handing employers three wins on  discharging the reverse onus, show cause letters and workers’ compensation confidentiality, the delay to Victoria’s proposed work from home laws and Full Bench decision regarding non-parties appealing an arbitrated outcome.

First ruling by the Full Bench regarding the interaction between transfer of business provisions and labour hire orders

A Full Bench of the Fair Work Commission has considered how the transfer of business provisions in the Fair Work Act 2009 (Cth) (FW Act) interact with regulated labour hire arrangement orders.

Bartter Enterprises appealed a regulated labour hire arrangement order covering manual chicken deboning workers supplied by contractor J&T Trade Pty Ltd at its Beresfield facility, where a previous Steggles enterprise agreement covered Bartter following an earlier transfer of business.

Bartter argued the deboning work was not ‘transferring work’ under s311(1)(c) of the FW Act because Steggles employees had not previously performed it.

The Full Bench disagreed, holding that ‘transferring work’ must be characterised broadly by reference to the nature of the work (poultry processing generally) rather than the precise task, noting Bartter’s own employees already performed similar deboning and cutting duties.

It also clarified that determining whether work is ‘for the provision of a service’ rather than a supply of labour under s306E(1A) of the FW Act, requires the Commission to undertake a discretionary evaluative judgment, reviewable on appeal only for error of the type discussed in House v The King (1936) 55 CLR 499. That is where the decision maker at first instance acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision, mistook the facts, failed to take into account some material consideration or made a decision that was unreasonable or plainly unjust. It is not enough to persuade the Full Bench to reach a different conclusion as to whether the work of the employees was for the provision of a service rather than the supply of labour. In this case permission to appeal was granted, but the appeal was dismissed and the labour hire arrangement order upheld.

A copy of the decision can be found here.

Costly error in the assessment of the ‘genuine and reasonable requirements’ of a role

The Victorian Civil and Administrative Tribunal has found that the Boroondara City Council unlawfully discriminated against an employee by narrowing the ‘genuine and reasonable requirements’ of his role down to the ability to drive a specific vehicle.

The applicant had suffered from a shoulder injury and/or complex regional pain syndrome, which gave rise to a disability in the form of a propensity for migraines or neck and back pain associated with driving postures in standard vehicles. When the council updated its fleet to a particular Hyundai vehicle, the applicant could not safely drive the new vehicle and multiple ergonomic assessments failed to resolve the dispute.

The medical evidence was conflicting. The applicant’s practitioners provided evidence that the standard vehicle was unsuitable, while the council’s independent medical examiner found that the applicant was ‘fit unconditionally to work’. VCAT found that this conflict did not excuse the council’s failure to properly consult and criticised its narrow focus on its existing fleet when a wider range of vehicles, including vehicles the applicant already drove without difficulty, was never explored.

VCAT applied the statutory test for genuine and reasonable requirements in section 23 of the Equal Opportunity Act 2010 (Vic), finding that the true requirement was that the applicant be able to drive a vehicle and hold a licence, not that he be able to drive a particular model or a vehicle confined to the employer’s existing fleet. The applicant had driven a range of other standard vehicles without incident, including his own car.

VCAT found the council had not discharged its onus to establish the adjustments were not reasonable adjustments, given a suitable vehicle could have been leased at negligible additional cost. VCAT found direct discrimination and ordered compensation of $901,163.03. VCAT also made an alternative order prefaced on both parties agreeing to attend a compulsory conference regarding the council reinstating the applicant. If this was agreed the council was to pay $200,020.05 immediately, with the balance of the ordered compensation to be paid if an agreement regarding reinstatement could not be reached.

A copy of the decision can be found here.

Full Federal Court hands employer three wins in general protections case

The Full Court of the Federal Court has dismissed an appeal against the rejection of general protections and workplace injury claims, confirming three things for employers: that an adviser’s involvement in a dismissal does not make the adviser’s state of mind relevant unless the adviser made a significant contribution to taking the adverse action; a show cause letter proposing dismissal for stated reasons is not necessarily a threat to take adverse action; and that s588 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRC Act), which deals with the unauthorised use of information, does not create a private right of action in damages.

This case involved a senior manager who was dismissed for medical incapacity, after a show cause process in which a senior workplace relations adviser provided advice to the two decision makers. The Full Court held the employer had discharged the reverse onus despite not calling that adviser as a witness, because the decision makers gave evidence of independently formed reasons, and the adviser’s contribution was limited to advice regarding the availability of a course of action rather than the actual decision.

The Full Court confirmed that whether a person made a ‘significant contribution’ to an adverse action is not limited to the person’s own evidence and that it is possible to determine that a person did not make a significant contribution without hearing from that person. However, the court is required to look at all the evidence, and in this case, it was found that a person who merely advises on the availability of a course of action, without playing a substantial role in the decision itself, will not be found to have made a significant contribution.

In relation to the show cause letter, the Full Court confirmed that ‘threatening’ to take adverse action in breach of the general protections provisions requires an intimidatory purpose and that a letter which stated the employer ‘was proposing to terminate [the employee’s] employment’ for identified reasons, and inviting a response before a final decision, did not constitute threatened adverse action.

The Full Court also held that s588 of the WIRC Act, which prohibits unauthorised use of information obtained under the WIRC Act and is enforced by a criminal penalty, does not give a right to a private cause of action by way of damages. The provision’s criminal enforcement procedure indicates that a criminal sanction, not civil damages, is the intended remedy for its breach.

A copy of the decision is available here.

Committee referral puts Victoria’s work from home bill on ice before the election

Victoria’s right to work from home is on ice after the opposition and crossbench blocked its passage through the upper house and instead referred it to a parliamentary committee.

The Equal Opportunity Amendment (Work from Home) Bill 2026 (Vic) proposes to give eligible employees a statutory right to work from home two days a week under the Equal Opportunity Act 2010 (Vic). Its start date had already been delayed once, from September 2026 to at least July 2027, following business concerns over cost and implementation.

Concessions announced by Premier Ben Carroll on 10 September 2026, limiting the right to Victorian based employees, ruling out any change to contracted hours and excluding home internet and basic utilities from employer-funded costs, were not enough for the Bill to gain the support of the upper house. Parliament instead voted the same day to send the bill to committee, with a report due 20 October 2026, after its last sitting days before the election. This means that the Bill cannot pass this term without a recall of Parliament.

A copy of the media release from Premier Ben Carroll, dated 10 September 2026, is available here. A link to a Financial Review article about the passage of the Bill is available here.

Non-party wins right to appeal arbitration

The Full Bench has for the first time considered whether a non-party can appeal a decision made by the Commission in arbitration of a dispute under s739 of the FW Act.

In this case, the Australian Childcare Alliance appealed a Commissioner’s decision on a childcare teacher’s award classification issue, even though the employer that was a party to the arbitration, did not make the appeal.

The Full Bench held that an agreement to arbitrate under s739(4) of the FW Act is an agreement to arbitration by the Commission with all its ordinary powers, including the appeal right under s604 of the FW Act, unless this is expressly limited by the dispute resolution term in question.

The Full Bench further found the Australian Childcare Alliance was ‘a person who is aggrieved by a decision’ under s604(1) of the FW Act, given its representative role in the sector and the likelihood the decision would generate further disputes, notwithstanding that the decision was not legally binding on the Alliance or its members.

A copy of the decision can be found here.

Want the KHQ Workplace Watch delivered straight to your inbox? Click here to subscribe.