Recent developments in managing employees in Australia 

We are pleased to continue our Employment Law Update series, reporting on recent legislative and case developments that have provided employers with guidance in navigating complex workplace challenges.

In this edition, we discuss developments that employers should keep in mind to ensure legal compliance and best practice. These developments include managing employee online influencers, the erosion of harmonised WHS laws, navigating flexible work arrangements, developments in multi-employer bargaining and an update about workplace investigations.

Below are summaries of the key developments followed by the full publication to download.

Download full publication here [PDF 1.56MB]

The rise of employee online influencers – time to call 'tick tock' on TikTok?

In brief:

• Online influencers are permeating all areas of our lives, and now, it seems, they are increasingly crossing the “workplace” line. The rise of employee influencers presents a new set of challenges for employers, particularly given the potentially wide reach of social media posts.
• Enforcing confidentiality in relation to workplace conduct issues is becoming an increasingly complex issue. Many employers are also observing the long-term effects of a time when virtual connections were paramount for a significant portion of the workforce. A new generation, whose primary source of contact and information sharing for a significant time was online media, is now entering the workforce. This has contributed to a distorted understanding, amongst some people, of what is “confidential”, and what information they can or should share online.
• Employers need to consistently enforce confidentiality and social media policies for them to have any impact, meaning such policies need to be regularly reviewed in light of changing societal and employer standards.
• Some legal risks associated with employee online influencers, which may not have arisen in the context of regulating employee social media usage to date, include contempt of court, exposure to aggravated damages, breaching prohibitions on recording from court premises, psychosocial harm to other employees and breach of the new statutory tort for serious invasions of privacy.

The erosion of harmonised WHS laws

In brief:

• Fourteen years ago, SafeWork Australia introduced model Work Health and Safety laws with the goal of creating a balanced and nationally consistent framework to protect the health and safety of workers and workplaces across Australia. This initiative was widely welcomed, especially by businesses operating in multiple states, as it promised greater clarity and consistency in WHS obligations.
• The model WHS laws were designed to simplify compliance for employers and reduce confusion, and ensure that all workers, regardless of their location, enjoyed the same level of protection. For organisations with a national footprint, this harmonisation meant they could implement uniform policies and procedures, consistent staff training, and more effective risk management.
• However, states and territories have gradually introduced their own amendments, often influenced by changes in government or local priorities. This has led to a patchwork of WHS laws that differ from one jurisdiction to another. SafeWork Australia is currently conducting a best practice review of the model WHS laws which includes consideration of whether there are any opportunities to strengthen and maintain harmonisation. Further information about this best practice review is available on SafeWork Australia’s website.

Effective workplace investigations – an update

In brief:

• Workplace investigations are increasing in frequency and complexity as employers respond to expanding legal obligations, including in respect of bullying, psychosocial risk and the positive duty to prevent sexual harassment.
• Amidst this complexity, recent decisions of the Fair Work Commission have highlighted the importance of quality and robust investigation processes and outcomes.

Navigating flexible work arrangements

In brief:

• Employers will now be familiar with the various “Secure Jobs, Better Pay” changes made to the Fair Work Act 2009 (Cth) throughout 2022 in relation to requests for flexible working arrangements.
• There is now a noticeable trend of Australian employers rolling back work-from-home arrangements originating from the COVID-19 pandemic, with many directing employees to return to the office on at least a part-time basis. This shift has coincided with rising tensions between employees and employers, resulting in an increase in disputes about flexible work arrangements. To date, the Fair Work Commission has published 39 decisions and orders on applications made under the new section 65B of the Fair Work Act, addressing disputes about flexible work arrangements.
• These decisions reflect a clear movement towards stronger employee protections and increased scrutiny of employers’ compliance with statutory requirements – not just the validity of business grounds for refusal, but also whether all procedural and consultative obligations have been properly met.
• This movement towards stronger employee protections is also playing out beyond the court room, with the Victorian government recently announcing its proposal to introduce legislation to mandate the right to work from home for at least two days a week if an employee can reasonably perform their job remotely.

Multi-employer bargaining developments

In brief:

• While multi-employer bargaining has always been a feature of the Fair Work Act, the Secure Jobs, Better Pay reforms significantly broadened access to multi-employer bargaining, with increased scope for employers being forced to bargain for a multi-employer agreement.
• There has been a recent uptick in unions leveraging the multi-employer bargaining streams, with McDonald's franchisees in South Australia most recently being subject to a supported bargaining authorisation (previously, the low-paid authorisation multi-employer stream) (McDonald's Decision) and three coal mining operators, Peabody, Whitehaven and Ulan Coal, being ordered to collectively bargain as single interest employers (Peabody Decision). These decisions are significant because:
  • The McDonald's Decision arguably lowers the threshold for finding that employers and employees may have difficulty bargaining at the single-enterprise level and, in doing so, expands the class of employers who could be required to bargain with other employers through the supported bargaining stream. McDonald's is challenging the FWC's decision via appeal to the Federal Court.
  • The Peabody Decision found that mining the same commodity in the same state was sufficient to establish a ‘common interest’. This is despite the mining operators not operating in the same region and using substantially different mining methods at their respective mines. The Peabody Decision has also been appealed with judgement reserved.
• We expect to see increasing activity in the multi-employer bargaining space into 2026 and beyond.

Other authors: Julie Mills, Counsel; Peta Banbas, Lawyer; Nikita Summers, Lawyer; Poppy Gammon, Graduate and Helena Kastrissios, Graduate.