Workplace Watch – 31 March 2025: updates from Budget, draft Blueprint for the Future, FWO probe into sexual harassment in building and construction industry

Welcome to the latest edition of the Workplace Watch. In this edition, we cover:

• updates from the Budget and Budget reply speeches including the proposed ban on non-compete clauses in employment contracts;
• the latest law reform updates, including the passing of a Bill concerning gig workers in the NSW transport sector and further Bill requiring high risk employers to be named in NSW. The National Construction Industry Forum has also published its draft Blueprint for the Future;
• recent updates from the Fair Work Commission, including the Clerks Award working-from-home variation, the review of fixed term contract provisions in the Higher Education Awards, the General Manager’s reports and model rules for registered organisations;
• further updates in the road transport industry major cases and the Fair Work Ombudsman launches a probe into sexual harassment in the building and construction industry; and
• a decision from the Federal Court concerning an employee dismissed during probation and a Deputy President declines an employer’s recusal application in the Fair Work Commission.

ELECTION 2025

Ban on post-employment restraints

The Federal Government announced a new tranche of workplace reforms when it presented the 2025-26 Budget, including banning non-compete clauses for low and middle income workers.

The proposed new restriction on non-compete clauses has been foreshadowed for some time and follows the review into the effect of non-competes by the Treasury Department’s Competition Taskforce.

The Budget Paper states:

“The Government will ban non-compete clauses that apply to workers earning less than the high-income threshold in the Fair Work Act (currently $175,000). The Government will also close loopholes in competition law that currently allow businesses to:

• Fix wages by making anti-competitive arrangements that cap workers’ pay and conditions, without the knowledge and agreement of affected workers
• Use ‘no-poach’ agreements to block staff from being hired by competitors.

The Government will consult on policy details, including exemptions, penalties, and transition arrangements and will also consider and consult further on non-solicitation clauses for clients and co-workers and non-compete clauses for high-income workers.”

(Budget Paper No. 1, pp. 24 and 25)

Budget Paper No 1 can be found here and the joint Ministerial media release can be found here.

Opposition calls for the deregistration of the CFMEU, organised crime laws in building sector and the repeal of the new definition of casuals

Mr Dutton MP outlined the Opposition’s proposed industrial relations reforms in the Budget Reply speech. These included:

• revert to a simple definition of ‘casual worker’;
• introduce anti-racketeering laws and a dedicated Australian Federal Police led taskforce to tackle the criminal elements of the building sector; and
• deregistering the “corrupt and disgraced” CFMEU.

The proposal to deregister the CFMEU and introduce anti-racketeering laws to target groups and leaders that engage in a pattern of criminal behaviour on building sites follows allegations of sexual harassment and corruption within the building and construction industry following a 60 Minutes report on 16 March 2025.

The Hon Peter Dutton MP’s budget reply speech can be found here and the Opposition’s media release regarding the reforms can be found here.

LAW REFORM

NSW passes Bill to legislate gig worker entitlements in transport sector

The NSW Government introduced the Industrial Relations Amendment (Transport Sector Gig Workers) Bill 2025 to the NSW Parliament on 20 March 2025 and it was passed by both Houses on 27 March 2025.

The Bill expands the operation of the Industrial Relations Act 1996 (NSW) (the Act) to include provisions for gig workers.

The explanatory note to the Bill states that its objects include:

• to provide that certain transport gig worker contracts are deemed to be contracts of carriage and covered by Chapter 6 of the Act;
• allow the Industrial Relations Commission of New South Wales (the Commission) to assist in the bargaining of pay and other conditions for certain transport sector gig worker contracts;
• set out the relevant considerations that the Commission must have regard to when making a contract determination under the Act;
• authorise the Commission to require the attendance of a person involved in the contractual chain that relates to the industrial dispute that is the subject of a compulsory conference;
• extend accessorial liability to persons involved in the contractual chain who are involved in a contravention of the Act; and
• provide that contract determinations and contract agreements for contracts of carriage must include provisions:
  • specifying how tolls incurred in the course of work performed under a contract of carriage are to be reimbursed; and
  • setting out a carrier’s reasonable obligations regarding routes that must be taken to effect a delivery.

Minister for Industrial Relations, Sophie Cotsis, stated that “the legislation is complementary to the Federal Government’s gig workers reform…” A copy of the Minister’s media release can be accessed here.

A copy of the Bill and Explanatory Note can be accessed here.

High-risk employers to be named in NSW WHS reports

The Work Health and Safety Amendment (Standalone Regulator) Bill 2025 passed the NSW Upper House on 21 March 2025. The two-page Bill was initially intended to only provide for the establishment of the SafeWork Advisory Council. However, the Bill was amended to include a requirement that SafeWork NSW list high-risk employers in their bi-annual reports.

The Bill also establishes the SafeWork Commissioner as the regulator under the Work Health and Safety Act 2011 (NSW).

The SafeWork Commissioner will be required to report to SafeWork NSW every 6 months (which will also be published on the SafeWork NSW website) that sets out:

• the High-Risk Workplaces and Repeat Offenders program list;
• a summary of action under the High-Risk Workplaces and Repeat Offenders program;
• a summary of completed investigations and their outcomes;
• in circumstances where the regulator considers it appropriate, a list of current investigations;
• a summary of the number and type of complaints by industry received by SafeWork NSW; and
• a summary of any action taken following advice received from the Safework Advisory Council.

The Bill will take effect as law on 1 July 2025 and can be found here on the Bill homepage. The agreed amendments proposed by Mark Latham MLC  can be viewed here

Significant overhaul flagged to incident notification regime in model WHS Laws

The Minister for Employment and Workplace Relations, Murray Watt has confirmed the model WHS laws are soon to be amended to increase the scope incidents requiring notification by employers.

Speaking at the OHS Leaders Summit in Queensland, Mr Watt confirmed that persons conducting a business or undertaking (PCBUs) would be required to comply with the incident notification provisions already existing in the model WHS laws for a “broader range of injuries, illnesses, hazards and harms”. Mr Watt said:

The proposed changes will address key gaps in the current notification requirements and expand the framework to capture a broader range of injuries, illnesses, hazards and harms.

“This includes sexual assault, suicide, attempted suicide, psychosocial hazards including bullying and harassment, and hazardous exposures to airborne chemicals that can cause long latency diseases.

Safe Work Australia is finalising amendments to the model workplace health and safety laws to enable jurisdictions to implement these new arrangements under their own workplace health and safety laws. So we’ll have more to say about that soon as that work rolls forward.”

The drafting process of the changes is currently ongoing and expected to be finalised by mid-year.

Mr Watt’s Statement at the OHS Summit can be found here.

Blood lead levels reduced in Commonwealth WHS Regulations

The Commonwealth Government has amended the WHS regulations to significantly lower the accepted amount of blood lead exposure (Pb). The amendments impact PCBU’s that conduct a lead process and workers undertaking lead risk work in the Commonwealth WHS jurisdiction.

These changes have already been implemented amongst the states/territories that adopt the harmonised model WHS Laws. The Work Health and Safety Amendment (Blood Lead Level Exposure Values) Regulations 2025 can be found here.

National Construction Industry Forum publishes draft blueprint

The National Construction Industry Forum (NCIF) agreed in October 2024 to develop a Building and Construction Industry Blueprint. The NCIF is comprised of unions, industry and government. The purpose of the blueprint is to:

• “Inform and guide: Provide an overview of the industry’s challenges and opportunities, as well as the factors underpinning a thriving building and construction industry, guiding the NCIF in its critical role of advising the Australian Government.
• Identify opportunities: Identify opportunities for the NCIF to work together and improve the industry, complementing and leveraging existing initiatives.
• Promote good practice and collaboration: Demonstrate good practice, defined by tripartite collaboration between the industry’s stakeholders to promote leadership, innovation, professionalism, and respect.”

A copy of the Blueprint for the Future can be found here and the joint Ministerial media release may be found here.

REGULATORY UPDATES

Major probe launched by the Fair Work Ombudsman into workplace harassment in the building and construction industry

The Fair Work Ombudsman has released a statement announcing that it is investigating allegations of sexual harassment within the building and construction industry as a matter of priority. The announcement comes after 60 Minutes aired claims by various individuals of experiences of sexual harassment and physical abuse within the industry.

The construction division of the CFMEU was placed into administration in August 2024.

Fair Work Ombudsman, Anna Booth, said the following in respect of the investigation:

“We are concerned about women facing sexual harassment in the building and construction sector, and have commenced an investigation into allegations in media reports including in Sunday’s 60 Minutes program, that are within our civil jurisdiction.

“These allegations of sexual harassment are very serious and are being investigated by my agency as a matter of priority.

The full statement released by the Fair Work Ombudsman can be found here.

FAIR WORK COMMISSION UPDATES

Update in Clerks Award WFH variation

The Fair Work Commission provided a set of draft survey questions for feedback and comment in the major case to vary the Clerks—Private Sector Award 2020 to include working from home arrangements.

The Commission received five submissions including from Business New South Wales and Australian Business Industrial, the Australian Services Union, the Australian Chamber of Commerce and Industry and the Australian Industry Group. The Commission determined to hold an additional conference to settle the final form of survey questions on 21 March 2025.

A copy of the statement ([2025] FWCFB 55) can be found here.

A subsequent statement was issued noting that the parties also requested a further conference to discuss the substantive issues that will arise in the matter which was agreed to. A copy of the statement ([2025] FWCFB 63 ) may be found here.

Fair Work Commission concludes review of Fixed Term Contract provisions in Higher Education Awards

The Full Bench of the Fair Work Commission has finalised its review of fixed-term contracting provisions in the Higher Education Industry—Academic Staff—Award 2020 and the Higher Education Industry—General Staff—Award 2020.

The variation made by the FWC is the inclusion of a note under the respective “Fixed Term Employment” clauses in the Higher Education Awards which reads as following:

“NOTE: For the purpose of section 333F(1)(h) of the Act:

(1) the exception will operate in respect of a contract of employment only where that particular contract falls under the terms in clause 11.3 of this Award;

(2) where clause 11.3 of this Award does not apply in relation to a particular contract of employment section 333F(1)(h) does not operate to provide an exception to the limitations in section 333E(1).”

The decision of the Fair Work Commission can be found here.

The determinations making the amendments to the Higher Education Industry – General Staff – Award 2020 can be found here and the amendments to the Higher Education Industry—Academic Staff—Award 2020 can be found here. The Fair Work Commission major case page with the previous submissions can be found here.

Fair Work Commission General Manager’s report published

The General Manager is required by s. 653 of the Fair Work Act 2009 to:

• review the developments in making enterprise agreements in Australia;
• conduct research into the extent to which individual flexibility arrangements (IFAs) under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and
• conduct research into the operation of the provisions of the National Employment Standards (NES) relating to employee requests for flexible working arrangements and extensions to unpaid parental leave.

The General Manager’s reports regarding these matters have now been tabled in the Senate.

The General Manager’s report into developments in making enterprise agreements under the Fair Work Act 2009 (Cth): 2021–24 may be found here.

The General Manager’s report into individual flexibility arrangements under s.653 of the Fair Work Act 2009 (Cth): 2021–24 may be found here.

The General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave under s.653 of the Fair Work Act 2009 (Cth): 2021–24 may be found here.

Model rules for registered obligations published

The Fair Work Commission has published two sets of model rules for registered organisations.

The Fair Work Commission’s update says that:

“We have now published two sets of Model Rules for registered organisations, following intensive consultation and collaboration with a range of stakeholders. Our model rules are designed to reduce the regulatory burden, making it faster, more efficient and cheaper to develop new rule books or make amendments to existing rule books. We want to acknowledge and thank our stakeholders for helping us achieve these significant outcomes.

There are separate model rule books for:

• organisations with branches, and
• organisations without branches.

There is also a guidance note to explain how to use the Model Rules to:

• understand better practice examples of individual rules
• explain the importance of particular rules and the law around them
• help organisations better understand their existing rules and how they meet the legal requirements, and
• give organisations a place to start their research when they want to introduce a new rule.”

The Fair Work Commission’s news update which contains links to the model rules and guidance material can be found here.

TRANSPORT INDUSTRY UPDATES

Statement in road transport major case

The Expert Panel has issued a Statement in the major case dealing with the three applications for minimum standards orders lodged by the Transport Workers’ Union (TWU), a fourth application for a contractual chain order and Menulog’s application to make a modern award to cover the on-demand delivery services industry.

The Expert Panel identified four potential research projects. Submissions were provided from the Transport Workers’ Union, DoorDash and Dr Lutfun Nahar Lata in respect of these research projects.

In response to the submissions, the Expert Panel has decided to proceed with proposals 1, 3 and 4, and ask the Commission staff to prepare a research reference list to assist the parties with their submissions. The Expert Panel will engage suppliers to undertake the research and interested parties are invited to propose material for inclusion in the research reference list by 1 April 2025.

A copy of the Statement ([2025] FWCFB 58) can be found here, a copy of the previous Statement ([2025] FWCFB 30) which contains the research proposals can be found here.

Further update regarding cash in transit contractual chain order application

The Fair Work Commission has issued a Statement in the Transport Workers’ Union’s contractual chain order application in the cash in transit industry.

The statement confirms that the TWU has provided its views on the progress of the application and the other parties are due to respond by 31 March 2025. A confidentiality direction has also been made in respect of the matters discussed at the Conference on 19 March 2025.

A copy of the Statement ([2025] FWC 781) can be found here.

CASE UPDATES

Federal Court reinstates employee who was dismissed during probation

The Federal Court has reinstated a Health and Safety Representative who had been dismissed during his probationary period.

The employee applied for interlocutory orders to be reinstated into his employment pending the determination of his general protections claim approximately 30 days after the dismissal, yet this delay did not prevent the Court from issuing the orders:

“94       The respondent submitted that there was an “unexplained delay” of approximately 30 days between Mr Mooney’s dismissal and the applicants bringing their application. Without a “reasonable explanation”, the respondent submitted that delay can be “sufficient” to warrant dismissal of an interlocutory application, relying upon Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd and Others (1987) 76 ALR 633 at 638 – 639.

95         The applicants submitted in reply that the explanation for the timing of the application to this Court was informed by the filing of the application in the Fair Work Commission, and whether any other member of the CFMEU employed by PIM would nominate as a HSR. The applicants submitted that these proceedings were commenced soon after those events crystallised. Taking the intervening steps into account and considering that the delay was not great, I am not persuaded by the respondent’s submissions as to delay.”

The decision of Meagher J in Construction, Forestry and Maritime Employees Union v Programmed Industrial Maintenance Pty Ltd [2025] FCA 257 can be found here.

Commission rejects apprehended bias application

Deputy President Butler declined an employer’s recusal application. Relying in part on excerpts from the Hansard of the House of Representatives, the employer argued that a fair-minded bystander might reasonably apprehend that the Deputy President might not bring an impartial mind to the application.

The Deputy President refused to admit the evidence on the grounds of parliamentary privilege.

“[43] In this case the applicants seek to have excerpts from the Hansard admitted into the evidence not only for the purpose of establishing, as a matter of historical fact, that something was said in parliament, but also to establish what a fair-minded lay observer would take to have been the motive for what was said (namely, to prosecute the shadow cabinet policy known as the “Secure Australian Jobs Plan,”) and to suggest that the fair-minded lay observer would have taken what I had said during the parliamentary proceedings as indicating that I personally regarded the situation, where people doing were doing the same job but being paid significantly less, as fraudulent or dishonest.

[44] The consequence of this is that the applicants seek to argue that because, on their case, I was speaking for the purposes of prosecuting the Secure Australian Jobs Plan in the parliament in 2021, in a way that indicated to a fair minded observer that I held the view that the situation as described above is fraudulent or dishonest at that time, and that provides part of a basis on which a lay observer might reasonably apprehend that I might not, today, bring an impartial mind to the resolution of the question that I am required to decide, specifically in relation to the provisions of subsections (2) and (8) of section 306E which go to the fairness and reasonableness of making a particular order in particular circumstances.”

The recusal application was dismissed.

See the decision in Application by Mining and Energy Union re Mangoola Open Cut Coal Mining Operation [2025] FWC 779 here.

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