This is an Australian industry group podcast. Hello. In this podcast, we will be discussing significant workplace relations issues for the period September to December of this year, 2025. As an end of year bonus, we will also look more broadly at 2025 and what we see as being a head-for-our members in 2026.
We will be referring to our member-only report, the significant workplace relations issues report, which is available on our website at astrayandindustegroup.com.au in the news section under reports. Once you get to that page, you need to select workplace relations. Now, with me today is Brent Ferguson, Australian industry groups head of National Workplace Relations Policy High Brent. Hi, this.
I'm Jones Blackmore, a principal advisor in Brent's team. As you may know, the significant workplace relations issues report covers a large raft of changes relevant for our members. Today, in this podcast, we focus on three key areas. First, we'll talk about recent legislative changes, what has happened in the last few months, and what is still on the government's agenda.
Secondly, we'll consider the upcoming series of legislative reviews. Recently announced by government and what this could mean for industry. Most notably, a review of the national employment standards and the closing lukebox changes. Finally, we cover off more broadly on issues that we see as potentially having a significant impact across all industries, including some key fair work commission proceedings.
And without further ado, Brent, could you share your thoughts on legislative change, where we are at and where we are going? Yeah, happy to, yes. I think everyone would appreciate the last term of government saw an avalanche of legislative changes in the workplace relations space. Now, this term of government, you know, labor has come with a narrow but still substantial legislative agenda.
And I think it's fair to say that they are very focused on trying to push that agenda through and on betting down some of the changes from last term of government, rather than adopting a more expansive range of amendments. In terms of the progress they've made so far, they've been pretty quick to push through changes in relation to protecting penalty rates. So that was the legislation that effectively prevents the fair work commission from reducing penalty rates in awards. They've also pushed through their changes in relation to payday super, which in essence, and I'm simplifying it somewhat, are changes that are intended to encourage or require employers to align the day they pay superannuation contributions with the day wages paid more broadly.
And I know we've got a detailed member advice on a webinar up on our website for members that goes through all of that. And the other significant legislative changes called out is they push through baby prayers law, which is a legislative amendment designed to, well, but we'll protect paid parental leave entitlements of employees. It is entitlements. Essentially, what that legislation requires is that if you as an employer have granted a work of entitlement to pay parental leave, in the tragic event of early infant death or stillbirth, the employee will be entitled to have law now to continue to access that paid parental leave that your employee have agreed to provide.
So they're the big successes they've had in terms of pushing legislation through, but I think there is still a few areas unfinished business. In that respect, I call that particular proposed ban on non-compete provisions in contracts or employment agreements. Again, in essence, this is a proposed prohibition on restraint of trade clauses, if you will, at least for employees earning below the high income and threshold. So that's below approximately 183,000, although there's still some debate going on about whether that ban should apply more broadly to high paid employees and also whether it should extend other sorts of restrictions, such as non-slucitation clauses.
So look, there's some work to do with the government on trying to make those changes as palatable as possible. And from our perspective, we in particular will be pushing for some sort of reasonable ability to still protect confidential information, even if the government ends up restricting those competition provisions in agreement more broadly. And then on compets, there are contract clauses, right, that you say, well, you ex-employee can't work somewhere else for a period. So in essence, it's a very least provisioning contract of employment that prevent a worker from moving to another employer.
The supposed justification for all of this is that those sort of provisions restrict labor mobility within the economy. And so they have an adverse impact on productivity because they prevent people from moving to different jobs. And also more squarely that they prevent people from moving to high paid jobs, all that in a lot of cases, the argument goes that the provisions are actually invalid anyway and are overused. But our concern is that overly heavy-handed approach will be taken to this.
And that will have all sorts of unintended and really unjustifiable adverse consequences for employees. So we're trying to work through how that can be, how many reforms can be made as I said as palatable as possible. And then this can read out submissions about that if they want to. Yeah.
And we're pressing the government for further engagement before they finalize any proposed bill. Look, I think the other thing I would just call out is I suppose a matter's been left hanging over from the Jobs and Skills Summit, which is proposed regulation of the secure jobs code. Now, I think this is a policy area that really is in its infancy of development, if you will, from the government's perspective. There's not been broad consultation yet with industry about this.
But essentially, this is a proposal for the federal government to use its purchasing power, or its decisions around government grants to sort of influence employment practices. Essentially, what is likely is that the government will implement a code that says that you're only going to be able to contract with government or receive grants if you've complied with certain requirements around to take compliance with WebPace Relations laws or other initiatives, such as the WebPace Gender Equality Agencies requirements, or if you've complied with other rules around say promoting secure jobs or secure employment. But we yet to see the detail of this. I think this is going to be an area of focus as we move into the new year.
And then of course, there's been a lot of change at a state and territory level, and more to come there, no doubt that that's covered off in the report, isn't it? Look, there has been activity at the state level, and the report goes into that in some detail. But in particular, I just call that changes in relation to regulation of Labor higher, also changes in relation to workplace health and safety laws as well, as areas that we particularly touch upon, and of course, working from home, particularly in Victoria, that is emerging as an area of particularly controversial change with a proposal to mandate, if you will, two days ability to work from home for at least two days a week, and we're pretty comfortable. Oh, great.
Thank you, Brent. And I understand the government's also intending to conduct a series of legislative reviews. Can you tell us a bit about that? Yes.
Look, part of the cost that the government paid for pushing some of its controversial legislation through during the last term of government was that it committed to undertaking reviews of the legislation within or upon two years of their operation. We're moving now to the stage where we're going to have a review of the controversial closing loopholes and crunches of changes, that the controversial third trudge of changes introduced last term. And that's the legislative amendments that introduced changes like regulated labor higher-arrangement orders, new definitions of casual employment, new definitions of who is an employee with the wage theft provisions, and radical new powers for the Fair Work Commission to regulate rates of pay in conditions for contract drivers, for gig workers, and to regulate the road transport industry supply chain more broadly. So we're going to have a review committing early in the new year, really, into those sorts of provisions.
Of course, the big challenge we're going to face is that those provisions have only been in effect for a limited period of time. But from our perspective, there are a number of deficiencies in those provisions that weren't properly addressed when the government sort of brutally, and to some extent, by surprise, got the numbers to push some of those changes through. And we were actively working on how to refine those provisions at the time. And so we also have to view this as an opportunity to call for some sensible amendments to fix what were for seeable problems, as well as other problems that have clearly started to emerge in the operation of those provisions.
But we're certainly very keen to hear from members about any of their experiences with the operation of the new provisions. The other review, of course, in S is this sort of came somewhat out of the blue, was an announcement by the government that they're going to implement a review of the National Employment Standards Parliamentary Review. Now, that's a wide-ranging review of the terms of references looking at the adequacy of the national employment standards. But it's also an opportunity to raise various technical concerns or deficiencies in the provisions.
And we will certainly use it as an opportunity to identify ways that we think the system could be simplified, and address some of the complexity, but also address some of the provisions that are clearly archaic now, and some of the technical problems that have emerged. It's unclear exactly how much the appetite the government has this term to implement sort of sweeping changes, though you could expect that the union movement will, of course, use this as an opportunity in a ventilator, all sorts of calls for enhanced conditions. Obviously, proposals for reproductive life is living large, as one area that you could expect them to advocate for change. We'll look at something we're going to put a lot of resources to, and again, we'd appreciate it from members who share any feedback around elements of the national employment standards that are causing concern and that we can raise with government.
And I think also, next year, we've got a review of the respective work amendments, positive duties, sexual harassment, probably in the later half of 2026. It is shaping up as a likely timeframe, but yet that's going to be another area that we're going to have to focus on in the year ahead. We'll pretty much cover it off most things then, in terms of the year. We can spend this whole podcast, and we'll talk about reviews, but look at it, it is going to be another big year.
Okay, so more to come in the pipeline, so watch this space, there will be more podcasts next year, clearly. And now at a broader level then, what are some other key significant issues that come to mind, Brent? Look, there are a raft of major industry cases on foot at the moment, or scheduled to run next year. Look, I think, if I could call out a few, in particular, there's a major working from home case, looking at the Clark's award in particular.
And this was a case commenced at the Commissions Aid Initiative with the intention of trying to look at removing award-derived impediments to employers and employees implementing working from home arrangements. We've identified lots of archaic provisions in the Clark's award, but in many awards, then we don't make any sense in the context of a working from home environment. Like span of hours, for example. Yeah, rules that, for example, say that once you start your working day, you have to work all your hours continuously with only your lunch break.
All that, say, for employee, he works at night, they take time off during the day to pick up the kids or attend to any other sort of personal matter and choose to make those hours up at night, and the employers pay them over time. And those rules just don't make sense anymore. And we're arguing that these things need to be updated, I could go on and I'll go on about that as well. Of course, the union movement, predictably, calling for greater rights to work from home, which we will of course push back on, given that there's already a capacity under the National Employment Standards people, and cohorts of people, at least, to see that sort of reflectability where it's justified anyway.
So that's going to be a big matter next year. And also, I guess the point to make on that is why this is directed at the Clark's Award. They may come up with a term that they apply across all modern awards. That's why I should have clarified it.
The Commission's looking at this in the context of the Clark's Award, but it has itself identified that any provision that determined may serve as a template for inclusion in other awards. So we're putting a lot of effort into get something sensible here. And of course, catalyst for all of this was really issues that we raised back in a review a couple of years ago now, I think. And we're trying to get some sensible change across the system to reflect this.
But we'll see how we go. Because it could be very helpful in compliance, because as you said, if someone's doing their day as they see fit, and then all of a sudden they are not recording their hours or triggers some overtime, that's a problem. Well, I think many employees would appreciate that the challenges around record keeping in the workplace relation system are notorious issue. But that's put into particular focus in the context of working from home.
The reality is we saw that decision of course involving Coles-Wolwers and the Fair Work Ombudsman that put into focus questions around, for example, the viability of annualized salary arrangements, but also put into pretty sharp focus the really strict requirements in our system around record keeping and recording hours of work, recording when you become entitled to certain award-derived entitlements. And how you come to that amount in the first place by recording hours to demonstrate it? That's right. But I think when you then think about whether how you're keeping these records, when people are working remotely, working at home, unsupervised, there's a sort of air of unreality about the prospect of people complying with all of that.
Now, we've viewed these proceedings as one way of fixing that. It's not the only avenue we're trying to look at. We're also running what's called an exemption rate case in the Clark's Award, a case that is on foot at the moment, which is seeking to argue that if people are paid above a certain rate and significantly above the award, some of the detail of the award, including some of the record-keeping requirements, shouldn't apply. And that was another way of addressing that controversy that flowed from the Fair Work Ombudsman and what was the Coles case?
And an exemption rate. What does that mean if there's something like that in an award? Yeah. It's an old concept that is a long-been-apart of the award system, but particularly of clerical awards.
It's essentially a clause that says, if the employee is entitled to be paid above a certain wage or salary, that some of the provisions of the award do not apply. And the record-keeping requirements are a bit less. Well, so for example, instead of the really burdensome annualized wage arrangements in the Clark's Award that we know many employers are finding it hard to navigate. And if you were paying someone, you committed to paying someone above a certain rate, some of those rules wouldn't apply under our proposal, nor would some of the really prescriptive rules around how hours of work construction would let people work in a more flexible way.
Of course, I've got to say that the legislation that I referred to earlier that is preventing the commission from reducing penalty rates in essence has been identified by the union movement as now a barrier to us implementing or successfully obtaining from the commission our changes in relation to exemption rates. They've also argued that that legislation will prevent the commission from making variations to awards to make working from home arrangements more flexible or workable. So that legislation is going to have a bearing on both of those two cases. We're going to have to fight that out next year just to see exactly the way back that will have.
Interesting. And I think there's also some part-time proceedings as well. Well, yes. The other thing that the commission has shadowed happening next year is a major review of part-time employment provisions in modern awards.
And again, this was in part a set of proceedings that rose which is we raised in a previous award review where we've said that employees have made it very clear to us that there's a common view that part-time employment provisions in awards are very restrictive. Now, for example, a lot of them make you agree on very specific hours of work. And if you work outside of those hours, then the employee has to be paid penalty rates. And a lot of people said, well, that sort of restriction is driving people's use of casual employment rather than part-time employment.
So we're arguing that we need to have a fresh assessment of these sort of provisions and look at how they can be made more flexible to encourage employers to make it easier for them to utilize permanent part-time employment arrangements rather than casual employment. Of course, again, the unions will be arguing the counterpoint. And they've argued that part-time employment should be structured more strictly, if you will. So we're going to have to work through that next year.
Look, I'm just trying to think of other major cases. One, I suppose, would be a would flag is a proposed regulation of the road transport contractor area. So this is again coming back to those radical changes that were pushed through last term of government where the fair work commission was empowered to set minimum rates of pay in conditions for road transport contractors and for gig workers effectively, what's called employee like workers, and also to set terms and conditions for commercial arrangements rather for the entire road transport industry supply chain. So that's effectively empowering the commission to regulate commercial arrangements between businesses that engage business and road transport businesses.
Right down the supply chain. That's right. So, you know, retail, you know, commercial arrangements between retailers, manufacturers, you know, agricultural product producers and road transport companies as well. And what people haven't had visibility of is much of this year.
We've been caught up in confidential negotiations before a fair work commission process, effectively negotiating these terms and conditions that have arisen out of TW applications to regulate all these areas. Now, you will have seen in the media that has culminated just recently in a deal being struck between that DoorDash and Uber, the big food delivery platforms and the TW around proposed minimum rates for gig workers. And we're going to have to see that deal work through and potentially implement it early next year. But also, there's been negotiations around minimum rates of pay for contract drivers, owner drivers, effectively, and minimum rates for anyone using a vehicle after three-time carrying capacity.
And that's a big issue because there are lots of businesses that utilize owner drivers as part of their transport function. But that's right. Now, really is what I would particularly call that is the team that has also said that needs to be a set regulation of commercial arrangements between supply chain participants. And that's an area watch for next year.
I think we're very lucky to have you involved in this space, which is a happy space for you, Brent, having many, many years experience. It's a long time doing it. But I was going to say that it's an area that really has huge potential implications for members. And so, we're, of course, spending a lot of time focusing on this.
And while we've been caught up in these negotiations, unsurprisingly, that hasn't culminated in any agreement. So really, we're doing the hard work in the year ahead, trying to make sure members are protected throughout all of this. Yeah, because it spreads across everywhere, isn't it? We're not just talking about transport industry because everyone uses the travel.
That's right. We need to take a careful approach to this regulation because it has such wide-ranging ramifications, potentially, for all the economy and of course, for our members. And I think there was some talk about an industrial campaign by the TWU. Well, I suppose if you move aside from the cases, that is one of the other big issues that's on the radar for next year.
The TW have made it very clear that they have carefully orchestrated or coordinated expiry, the large number of enterprise agreements in the road transport and aviation sectors, and that they're intending to run a major campaign next year around that enterprise bargaining. And we've basically said that their intention is to potentially ground the aviation sector in the road transport sector in order to advance a coordinated campaign. And what they've suggested is really the target of that sort of campaign will be businesses throughout the supply chain. So they'll be looking at the terms and conditions that road transport businesses are able to secure from their customers and the associated implications for workers.
So again, we've got to see the detail of how that actually plays out, but we're already taking steps to try and engage with industry to prepare for that coordinated campaign. Great. Those are always a lot going on, isn't it? Never changes.
Now, as a Christmas bonus, you can tell I'm getting ready for Christmas. What other trends do you think you're seeing, Brent? Oh, look, I think there are other areas that are clearly likely to see some sort of attention. I think artificial intelligence is the big emerging issue that we're all grappling with.
It's certainly an area where you're seeing the union movement increasingly pushing for regulation to cover, or you're seeing the major take forward in the context of targeting as well. I think, you know, to date, the government has taken a fairly cautious approach to this, but I think, you know, as we look at it, we're very alive to the prospect that this is somewhere that an area that may face further regulation. And we're certainly working actively with the government to try and ensure that our careful approach is taken to that. What we don't want to see is any heavy-handed approach to regulation relating to AI that stifles some of its potential to actually address our persistent productivity problems, of course, can do a lot of good.
But again, that's looming as one area to watch next year on various fronts. I think there's also been a lot of noise about the rapid expansion in litigation around termination, particularly general protection, termination claims, and with the President and the Fair Work Commission making very public announcements around the significant workload that's creating. Again, I think you could look at that as an area that the government might potentially be minded to look at some sort of sensible reform if people can make a case to that. But I think that's an area that we've all got to sort of look at clearly something that's to be done on that.
And a lot of cases, I guess we'll see over the next year or the next year is really right, interpreting what all this change means. That's really the case. So we've gone through this phase of seeing all this legislative change implemented. Now we're increasingly moving into a phase of seeing the commissions and courts grapple with what exactly that means.
So we've seen a series of test cases already run, but I think as the union movement and others in the system, start to sort of self digest what these changes mean and how they can be utilized. We're going to see increasing disputation around these sorts of provisions. So people have already seen increasing cases around request for flexible work arrangements, start to play out. I expect that friend will continue.
We've already seen some utilisation in the new bargaining laws, particularly multi-employer bargaining bills, so the intractable bargaining disputes. Again, I think that's going to continue to be a trend. And certainly that's something we're focusing on in a year ahead, how we can make sure that those new laws are interpreted as we say they should be. And I think I recall there being a model clause that was going to be re-looked in this context by the Fair Work Commission, who's already said that they're very busy.
You're just reminding me of how big next year's going to be. Sorry, I'm sorry. Look, there was a review, of course, that happened into the model clauses that apply relation to enterprise bargaining. There is a month-to-ish business there.
In particular, there is, of course, a model consultation clause, the regulations to sit out. The union movement argued for that clause to effectively be varied, so that instead of consultation being required, once a definite decision about major changes have been made, to require that there would be consultation effectively when a change was being proposed, which would be a radical change. Now, we advocated very strongly for that to be declined by the commission. Now, it didn't grant that change, but it did say it was going to come back and have another look at that change.
This year, and that didn't happen, so I expect that that will be another matter that is on the to-do list next year. Yeah, and that's a big one, isn't it? A lot of ramifications. AI changes, for example, the unions are going to want to be a lot more involved in decision-making.
Yeah, it's a fundamental issue from our perspective that that standard around when a consultation for a player should occur once a definite decision has been made. And then you consult about measures to mitigate the adverse effect and so forth. But ultimately, businesses need to be able to make decisions to how they run their business. But of course, the union movement through bargaining in various different contexts of, you know, consistently trying to argue that should be changed so that consultation occurs whenever that changes effectively, seriously being considered or proposed.
That would be a significant change. We will be resisting that again very strongly if that's pushed because, as you say, there's lots of technological change in the wins. Restructuring. Restructuring.
Our view is that the system already provides the architecture for navigating those sorts of change. But again, I think you will see a coordinated union campaign around these sorts of things through whatever form, but those proceedings through bargaining also pushes for legislative change. Oh, thanks Brent. As always, very interesting.
So today we've covered off on a number of key areas of interest for our members. But I think Brent, there's a lot more to read in the report, isn't there? There is. It's a detailed link to the report, as always.
Again, I suppose the office version I would make, there is a very useful executive summary at the top, which gives you a snapshot, if you will. And a table of content. And hyperlinks. There is.
It's a much improved individual report. But it's useful to go through that. It gives you a clear picture of everything that's on the current agenda and an ability to dig dive down into some of the issues. And of course, it does, as you say, links to detailed member advisors and so forth that we've prepared on many of the major issues.
Great. Thanks Brent. Thanks. So we'll wrap it up here.
So thank you very much Brent Ferguson, our head of National Workplace Relations Policy. This podcast is referring to, as I said before, our member only report, the significant workplace relations issues report, which is available on our website at Australianindustrygroup.com.au in the news section under reports and policy. Once you get to that page, you need to select workplace relations. And so that's all now for me and Mary Christmas.
And see you next time. Thanks everybody. See you at the happy New Year as well.