Katrina Murphy Industrial Relations, PO Box 786, Nundah (2026)

15/03/2026

There are many serious flaws in the Fair Work Commission general protections (dispute or dismissal) jurisdiction. One of them is that the applicants (the employees) can be as rude, unhelpful and generally vexatious as they like, while the process drags on miserably through the Fair Work Commission processes. This is because there is no consequence for such conduct, until and if the applicant lose their case via Fair Work Commission consent arbitration or in Federal Court. If they lose, the ex employer can seek a costs order against them if their case is vexatious. Loopholes for vexatious litigants erode the labour law system and jam up the opportunities for employees who have been genuinely harmed by unlawful discrimination. The rapid rise of vexatious/trivial litigation reduces the inclination of employers to employ in general.
~ I did a 3D printing workshop today in the valley. No, I did not 3D print the groovy black cat, but I reckon I now know how to. Sincere thanks to Brisbane Makerspace in the Valley.

14/03/2026

Employment contracts usually have a jurisdiction clause. For national employers, the State law referenced in this clause should be the State location of the Company’s head office. Primarily this means that if the contract is disputed, the relevant laws in the State where the head office is located, shall apply. For State legislated employment conditions such as worker’s compensation, long service leave and occupational health and safety, your contract should contain a general reference to the State or Territory law applicable where the employee’s work is primarily located.

14/03/2026

There is currently no general legal right to work from home in Australia. The right is only to request flexible work arrangements, of which work from home is one, and then only if specific eligibility criteria to make such a request exists. For example, being a parent of school age or younger children, carers, over 55, people with disabilities. The employer can deny the flexible working request on reasonable business grounds via a consultation process. Now a sweeping world first statutory change is coming in soon to Victoria. The change applies to private and public sector employees in Victoria. It will mean that work from home for at least two days per week is a statutory right, rather than merely a right to request. The right applies only to work that can be “reasonably” done remotely from home. We all love the word “reasonably” right? So very helpful. It is likely to apply to clerical/admin, IT, call centre, accounting/book keeping and some management roles. Employees and unions are highly likely to push hard for it to be much wider. The right will commence on 1 September 2026 for all Victorian employees except for those employed in small business, for which the start date is 2 July 2027. For those Victorian KMIR clients who have been working on their inherent requirements of the role work for each job for some time, this work will pay off yet again. This is because employers may refuse a work from home request only if the job cannot be reasonably performed from home, or doing so would make the inherent requirements of the employee’s role impractical. For those who have not done the inherent requirements of the role exercise yet, please contact KMIR for advice and assistance. The reforms will be implemented by amending the Equal Opportunity Act 2010 (Vic.) The change will require amendments to Victorian employers’ work from home policies and also to Equal Employment Opportunity policies for this employers who have Victorian employees.
~ Working remotely in the Phillipines

14/03/2026

It is not easy to terminate an enterprise agreement that has passed its expiry date and has not been replaced by a new one. An employer or union can apply to Fair Work Commission to terminate an expired enterprise agreement, to which they are a party. The party that wishes to terminate the agreement files a Form F24 with Fair Work Commission. The form will ask why they seek to terminate the agreement. If it is an employer, they will be asked for evidence to address the statutory test (see below.) The employer must give a copy of their FWC application to each union covered by the agreement and to every employee covered by the agreement. The matter is then listed for a conference at FWC, or it might go straight to a hearing. FWC will give directions for submissions and evidence. Employees and the union are allowed to oppose the termination. Fair Work Commission must be satisfied that terminating the enterprise agreement is –
a) not contrary to the public interest and
b) termination is appropriate taking into account the views of the employees, employer and union and
c) take into account the circumstances of the agreement and the likely effect on employees if the agreement is terminated.
Fair Work Commission is likely to consider whether termination would promote bargaining (which Fair Work Act and therefore Fair Work Commission see as a positive thing.) Successful termination cases have had evidence in the form of an affidavit sworn by the HR director or a CFO which convincingly addresses these issues: Financial evidence showing that the EBA threatens business viability and Detailed comparison tables of EA versus award conditions showing that application of all provisions of the relevant award leaves all employees better off than the EBA and Modelling of costs under the agreement versus the award and Evidence about how the agreement restricts operations and Evidence about outdated classification structure or restrictive outdated rostering provisions and Provisions in the EBA inconsistent with modern awards or current operations and If they are satisfied, FWC issues a certificate terminating the agreement.
The most common reasons why EBA termination applications fail is a consequential significant reduction in employee pay or conditions. If the Company merely intends to replace the EA with the Award and this results in any employees being worse off, the application is highly likely to fail. FWC will also reject a termination application if it is being done by the employer merely to increase bargaining pressure during an EBA round.
~ Manila. These hand made statues were waist high. Nice.

14/03/2026

Employers can agree to cash out some of an employee’s annual leave, subject to strict rules in Fair Work Act and in each modern award. Annual leave cash out rules for award and Federal enterprise agreement covered employees are:
1. The employer can offer cash out of annual leave, the employer cannot make employees do it even if the employer writes that they can force cash out into a contract.
2. There has to be a separate written agreement for each cash out. The agreement must be signed by the employer and the employee. The agreement must be in exactly the format which is set out in the schedule to all modern Awards. The format cannot be altered.
3. The employee must receive a copy of the cash out agreement and the employer must retain a copy. The agreement has to be actually signed. Docu sign might be sufficient.
4. The employee must retain a leave accrual of at least 4 weeks of annual leave.
5. The employee cannot cash out more than 2 weeks in every 12 months.
For genuinely award free staff, the only difference is that there is no limit on the amount of leave that can be cashed out in any one year provided a 4-week annual leave accrual is retained.

02/03/2026

Sweeping changes are underway for the Health Professionals and Support Services Award. As well as significant phased-in gender based undervaluation pay rises, in its decision of 24 December 2025, the FWC Full Bench determined the classification criteria and wage rates for health professionals and the operative date and approach to phasing-in that would be adopted. The current Schedule B of the HPSS Award will be replaced with a table which specifies, for each profession, what can be identified as the standard minimum qualification. Where no standard minimum qualification can be identified, the table will list the identifiable alternative minimum qualifications. Further, the Full Bench has determined at [18] of [2026] FWCFB 47 that where an employer requires an employee to hold a qualification which is higher than the level identified for the health professional in the new Schedule B, then the employee should be paid at the rate specified in the award for the AQF level qualification required by the employer.

02/03/2026

Working out correct modern Award coverage for employees is not a choice. It cannot be selected on the basis of wage cost or convenience of terms. Nor should award coverage selection be a guess. Correct Award coverage is based on i) industry/nature of company’s operations and/or occupational coverage of the Award and ii) whether the Award covers the type of work/occupation/profession that the employee is doing. Assessing this correctly is not always as easy as it might sound. Full Bench decisions of Fair Work Commission in particular 2009/2010 award modernisation decisions and the Four Yearly Review of modern award Full Bench decisions are usually the most reliable source of securing definitive detailed information about the meaning of industry or occupational coverage clauses in Awards.

20/01/2026

It is getting much harder for an employer to be able to rely on a resignation sticking. In a recent successful FWC appeal case, which quashed an earlier decision that the employer could rely on the resignation, the Full Bench opined, “While there is no requirement in the Australian authorities that an employer allow a reasonable time to relapse before acting on a resignation, there is nothing in “Tavassoli” which suggests that an employer is immune from a finding that a resignation is properly characterised as a termination of employment on the initiative of the employer, simply because the employer does not become aware of circumstances that would have put a reasonable employer on notice that further inquiry as to whether the resignation was intended is desirable, until AFTER the resignation is purportedly accepted, particularly when the employer is made aware of such circumstances shortly after the resignation.” (At 63 of David Gourlay v Sydney International Container Terminals Pty Ltd Trading As Hutchison Ports Sydney [2025] FWCFB 202 Brisbane 18 December 2025.) In this case, even though the FWC Full Bench accepted that the employer had no idea that the employee was experiencing paranoid delusions, the fact that he was, was sufficient to render the the employer’s refusal to accept the employee‘s attempt to rescind the resignation, as a dismissal at the initiative of the employer. The message is - employers must slow down and be careful about not accepting an attempt to rescind a resignation.

17/01/2026

Summary or “instant” dismissal means that an employee can be lawfully immediately dismissed because the gravity of their offence - such as theft, fraud, violence amounts to very serious misconduct. Even if there is overwhelming evidence that the employee has done the dreadful deed of which they are accused, the employee must still have an opportunity to respond to the allegations against them and to show cause as to why they should not be dismissed. The “instant” part of summary dismissal refers to the fact they are not entitled to notice of termination or payment in lieu. In addition, in all States and Territories of Australia except Victoria, accrued long service leave or entitlement to any pro rata long service leave will be lost if the employee is summarily dismissed for misconduct.

15/01/2026

Fair Work Act does not state that employers must consult with unions about major workplace change (section 205). The model consultation term in Fair Work Regulation Schedule 2.3 also does not say that. Major workplace change comprises big changes like a new classification structure or significant job/workplace changes or a major overhaul of a roster system. Fair Work Act and Regulation says that an employee may appoint a representative to assist them with the consultation process. This includes a union representative. Some enterprise agreements go further and expressly require consultation with a union (or with employee representatives including unions). If there is such an EBA term, the consultation becomes mandatory whether the employee/s specifically request it or not. Consultation on redundancy operates in the same way.

15/01/2026

Disciplinary matters tend to escalate very rapidly. An employer will have sent out a letter of serious performance or conduct allegations to an employee. But prior to the deadline for a response, a new allegation comes to light. The golden rule is that a new allegation cannot be used to corroborate or enhance the old allegations unless and until the employee has had a reasonable opportunity to respond. For example, Tom Cruise Ships Pty Ltd send a letter of allegations to Joe Jeffery re an incident of speaking rudely and curtly specifically stating “Get Lost, Idiot!” to one of the passengers on the ship. After the letter has gone out, but before the response has come in, the Company finds out that on the very same day, Joe Jeffery said to another passenger, “Move aside or jump overboard, you Slug Fest!” It might seem like commonsense that Joe Jeffery may now be readily and immediately sacked because two people have complained. However it is crucial that Joe Jeffery gets a reasonable opportunity to respond to both allegations before the company can make a decision about whether or not to terminate his employment.

13/01/2026

The 17.5% Annual Leave loading is not part of the National Employment Standards of Fair Work Act. Annual leave loading appears only in modern Awards and most enterprise agreements. Therefore, genuinely award free employees are not entitled to annual leave loading. If staff are entitled to it, the loading must be paid out in full on unused accrued annual leave on termination. For shift workers, there is usually a provision in awards which state that they should be paid either the base rate of pay with annual leave loading OR their usual rate of pay with shift loading including relevant weekend penalty rate applied during annual leave, whichever is more beneficial to the employee, but not both. See for example clause 25.6 (b) of the Food, Beverage and To***co Manufacturing Award 2020.

Katrina Murphy Industrial Relations

15/03/2026

14/03/2026

14/03/2026

14/03/2026

14/03/2026

02/03/2026

02/03/2026

20/01/2026

17/01/2026

15/01/2026

15/01/2026

13/01/2026

Address

Website

Alerts

Contact The Business

Shortcuts

Share

Category