What you need to know, what you need to act on, and when.

The following are a quick user friendly update for employers on Government legislative changes and Fair Work Commission test cases.

One Minute Summary

• The Fair Work Commission test case on Working from Home will commence formal hearings in February 2026.
• The Senate has commenced an inquiry into potential Working from Home legislative changes.
• A Parliamentary Committee is reviewing the National Employment Standards.
• The Fair Work Commission has seen a significant increase in Unfair Dismissal and General Protections applications against employers.
• Parental Leave provisions in the NES have been updated for leave taken in relation to when a child dies or is stillborn.  (Baby Priya’s Law)
• The NSW Government has implemented significant changes to give unions greater rights in relation to workplace health and safety.  

Working from Home – Clerks Private Sector Award 2020 

This matter concerns the insertion of working from home provisions in the Clerks Private Sector Award to support employers and employees making a workable arrangement.

Following research and multiple conferences the matter has been listed for formal hearings in early February 2026. The key arguments centre around the union’s position that there should be a right to work from home (with a default bias towards allowing this to occur) versus the employer’s position that there should be enabling provisions and guidelines allowing agreement to be reached by employers and employees.

There is no indication at this stage of when the changes will take effect in this Award. Any changes to the Clerical Award are likely to flow on to other select Awards.

Senate Inquiry into Working From Home

In response to a Green’s Bill to legislate the right to work from home, the Australian Senate will hold a formal inquiry into working from home for up to two days per week.

The Greens have stated "Flexible working arrangements are an essential feature of our modern workplaces”. Under the Greens Bill employers must consider ‘reasonable adjustments’ to accommodate the request before rejecting it.  The Fair Work Commission will have the ability to review rejected requests. The inquiry will report its findings by the end of March 2026.

The Government has not indicated the use of legislation to enshrine the right to work from home but to allow the Fair Work Commission to finalise its test case as noted in the article above. However, this is not to say the Green’s legislative proposal will not become law at a future date under some deal to get other legislation through a Senate that the Government does not control.

National Employment Standards Review

The House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training has initiated an inquiry into the operation of the National Employment Standards in the Fair Work Act. The Chair of the Committee has stated the review is crucial to determine whether the NES are still ‘fit for purpose’.  Written submissions are due by 27 February 2026.

The review will not focus on matters which have been the subject of recent reviews such as flexible working arrangements, casual employment, parental leave or family and domestic violence leave.

Fair Work Commission Overwhelmed with Unfair Dismissal & General Protections Cases

The Fair Work Commission has experienced a 25% increase in unfair dismissal and general protections claims to approximately 44,000 claims per annum. Claims from 1 July 2025 to 30 September 2025 have significantly increased again. On that rate of increase claims for a full year (2025-2026) could increase to between 50,000 to 60,000 per annum.  

This continuing increase has made the Commission’s workload unsustainable. The President of the Commission has released a statement indicating a range of reforms to streamline the management and hearing of these claims.

Parental Leave Changes

Changes to the Fair Work Act 2009 have resulted in parental leave being available where a child dies or is stillborn. From 7 November 2025 an employer cannot refuse, nor can they cancel upcoming planned periods of parental leave in such circumstances. This change also applies to the Government funded paid parental leave.  

There are two exceptions to this. If there is a right to cancel such leave under an employer funded arrangement where this right is written into the employment contract or an enterprise agreement. Secondly if the terms and conditions of employment provide for alternative leave arrangements for the still birth or death of a child.

Employees can also access paid compassionate leave. If they wish to return to work they need to provide four weeks’ notice.

Where a premature birth occurs or where complications require a baby to be hospitalised immediately following birth the parental leave can be put on hold until such time as the baby leaves hospital and commence thereafter. This would allow an interim return to work while the baby is in hospital.  

Increased Union Powers Under NSW WHS Legislation Changes

Changes have been made to the NSW Industrial Relations Act and WHS Act 2011 to give unions more power in relation to safety at work.  Most changes came into effect on 13 October except as noted below. The changes include:

Expanded union rights of entry. On entry union officials (permit holders) have the right to take measurements, conduct tests, take photos and video in relation to suspected contraventions and ‘reasonably suspected’ contraventions. The union written notice of entry must state that the union is entitled to represent the industrial interests of a worker and the that the suspected contravention affects that worker.

Union Prosecution Powers. Union prosecution powers have been streamlined, and Courts may award a part of any fine or penalty paid by an employer to the union that initiated the prosecution. The period of time to lodge a prosecution following an incident, has been extended.  (Effective 1 March 2026)

Mandatory Compliance With Codes of Practice.  PCBUs (employers) must comply with the relevant Codes of Practice unless they can demonstrate an alternative risk control level that is equal to or higher than the Code’s standard. We would expect unions to become very knowledgeable about Code of Practice in their industry. Codes become legally enforceable from 1 July 2026.

Dispute Resolution. The NSW Industrial Relations Commission may deal with WHS disputes. This may include issues in relation to Health and Safety Committees or Representatives and cessation of unsafe work. It is likely that unions would initiate such disputes.

Information Sharing and Confidentiality. An expansion of what information must be shared with unions and site WHS representatives especially in relation to investigations or inspections.

Provisional Improvement Notices. When an employer is issued with a PIN notice they must now notify SafeWork NSW.

Employment Contracts Restraint Clauses – Government Changes

Following a proliferation of restraint clauses in employment contracts at all levels of employment the Federal Government is looking to introduce limitations on their use from 2027.

The Courts will not enforce highly restrictive restraint clauses which prevent a former employee from earning a living. Some clauses technically require employees to seek work in another city for several years. These clauses often have no validity at law and are not worth using in contracts.

Carefully worded restraint clauses, which restrict former employees from approaching their former employer’s clients, for a limited period of time, are likely to be enforceable.

Gender Undervaluation Award Variations

In April the Expert Fair Work Commission Panel has handed down an extensive decision in relation to the Gender Undervaluation Test Case finding that the classifications in the test case Awards have been the subject of gender-based undervaluation.

Hearings continue in relation to the six Modern Awards in relation to new classification structures and payrates.

Once finalised it is likely other Awards will undergo the same detailed examination and applications for new classification structures and wages increases.

Fair Work Commission - Part-time Award Clause Review

The Expert Panel, led by the Fair Commission President, continues to examine part-time employment conditions in 11 Modern Awards including the SCHADS Award, Clerks Private Sector Award and the Manufacturing and Associated Industries and Occupations Award. Any outcome is likely to flow into other Awards as a standard clause.

Superannuation Law Changes

From 1 July 2026 employers will be required to pay their employee’s superannuation contributions within 7 calendar days of paying their wages.

The changes also introduce tougher provisions for employers who fail to pay their employee’s superannuation or regularly pay it late.

Please contact Michael if you are seeking further information in relation to above or assistance with workplace specific issues.

Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

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AI was not used in writing this newsletter. All typos are unfortunately mine. Michael Schmidt ©