Hunter Employee Relations Review – September 2025

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

The One Minute Summary

There are no substantive changes this month which have an immediate effect on employers.
Small Business employers are now subject to the Right to Disconnect and Casual Employment changes which commenced for large employers in August 2024.
The Fair Work Act has been amended to prevent changes to Modern Awards to cut penalty rates and overtime.
The Fair Work Commission is keeping itself busy undertaking a range of reviews in relation to part time employment, degree qualified classifications and superannuation clauses.
NSW employers should keep an eye on potential WHS changes summarised below.

I suggest employers scan through the following to get a quick overview of what is happening with Government changes and Fair Work Commission test cases.

More information on these key changes is available below

The Hunter Employee Relations Monthly Review is a valuable resource informing senior management on Government workplace law changes, Fair Work Commission test cases and important decisions. It is published at the start of each month.

26 August 2025 – Small Business Now Pulled into Fair Work Changes

Small business employers have been exempt from Right to Disconnect and Casual Changes to the Fair Work Act which commenced for larger employers one year ago. This has recently changed.

In respect to the Right to Disconnect employees can refuse to monitor, read or respond to contact or attempted contact outside of working hours – unless their refusal is unreasonable. More information – Hunter Employee Relations Update.

Eligible casual Employees in small businesses can notify their employer in writing of their intention to change to full-time or part-time employment. They can also choose to remain as a casual employee.

Employers must respond to any requests. More information – Hunter Employee Relations Update.

Fair Work Act Changed to ‘Protect’ Penalty Rates & Overtime

The Government has followed through with a key election pledge to lock penalty and overtime rates into the Fair Work Act 2009.

After being introduced to Parliament in July the Senate referred the legislation to its Education and Employment Legislation Committee which was due to report back on 21 August 2025. However, no report was issued and the Bill has became law on 29 August 2025.

Key elements of the Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025 are as follows:

The Fair Work Commission, when making or varying an Award, must not reduce penalty or overtime rates.
It prevents arrangements that merge penalty and overtime rates into a single base salary if the result is employees being worse off.
It applies only to Modern Awards and not Enterprise Agreements or contracts. However, it is likely to block any similar changes in Enterprise Agreements through the BOOT test.

This change does not affect employers who currently apply the applicable Award provisions.

ACTU Advocating for Shorter Working Week

At the recent Economic Round Table Productivity Summit the Australian Council of Trade Unions advocated for a 4 day working week model. They argued that this change would ensure that productivity gains and technological advances would benefit workers.

Their proposal was that, in the move to working less hours, employee’s pay and conditions would remain the same.

In addition they argued for sector based changes such as more rostered days off, increased annual leave, and fairer rosters to maintain work-life balance and protect productivity.

The cited evidence studies that showed a four day work week can improve performance, reduce burnout, boost retention and enhance productivity.

The Prime Minister and Treasurer responded to the ACTU with a dismissive tone and stated that they had no plans to adopt a four day work week.

It is difficult to understand where the ACTU’s fanciful ideas come from.

ACTU Seeking Regulations on the Roll Out of AI

At the recent Economic Roundtable the ACTU called for mandatory, enforceable AI Implementation Agreements that employers must establish with their workers before introducing new AI technologies in the workplace.

Such Implementation Agreements would include guarantee job security, skills development and training, and transparency in technology use.

They argued that any employer without such an Agreement should be ineligible for government funding or government contracts.

The peak union body stated that employers must consult with staff before implementation, ensure employees have a meaningful role in its introduction and must have a stake in its benefits. The Productivity Commission cautioned against over-regulation of the introduction of AI. With an average union density of just 13% across Australia the ACTU is seeking to influence way beyond its traditional space.

Employers should watch this space. Given the current consultation clauses in all Awards and Agreements there is a distinct likelihood the ACTU may initiate a Fair Work Commission test case to extend the consultation clauses with a specific section on the implementation of AI.

Gender Undervaluation Award Variations

Submissions and Conferences continue to determine new classification structures and wage increases.

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.

The Commission closely examined the following Awards to determine whether the work undertaken by employees (predominantly female) was undervalued.

Aboriginal and Torres Strait Islander Health Workers and Practitioners and Aboriginal Community Controlled Health Services Award 2020
Children’s Services Award 2010
Health Professionals and Support Services Award 2020
Pharmacy Industry Award 2020
Social, Community, Home Care and Disability Services Industry Award

The parties to the proceedings are now providing submissions to the Commission Expert Panel to determine amendments to the above Award classification structures likely to result in wages increases spaced over a period of time. Following a Report Back on 21 August the complex matter is progressing slowly with a Directions hearing scheduled for 13 October 2025.

Working from Home Model Term – Clerks Private Sector Award 2020

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

The Commission has requested parties to provide proposed Award variations and submissions buy 18 July 2025. Other parties may respond by 15 August. A Directions hearing which had been scheduled for 3 September before Justice Hatcher, Commission President has now been moved to 7 October. Further submissions are still being received by the Commission.

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

Working from Home – How Common is it?

A report by Roy Morgan on working from home provides the following information:

6.7m Australians (46% of all employers Australians) work from home some of the time.
Working from home in capital cities – Sydney 55%, Melbourne and Canberra 51%
Working from home (at least some of the time) for Central Business District employees – Sydney 70%, Melbourne 65%, Canberra 61%, Brisbane 52%.
Higher income earners are more likely to work from home compared to lower income employees.
36% of employers had mandated employees to return to site – 5 days per week in 2024.

The Victorian Government intends to enshrine working from home for at least 2 days per week into law by 2026. In a broad sweeping statement the Premier stated ‘working from home works for families and good for the economy’. It is questionable that Victoria can actually legislate about this workplace matter for employers other than public servants as all private sector employees are covered by the Federal industrial relations system. It could occur through the Equal Opportunity Act by making refusal of work from home requests a form of discrimination. This would be quite contrary to the purpose of this type of anti-discrimination Act.

NSW Changes to the WHS Act

The NSW Government will make change to the WHS Act with the stated intent of preventing injuries and deaths in the workplace. The objective is to drive tripartite collaboration between employers, unions and the regulator to prevent workplace deaths and injuries. Key changes include:

Expanded rights of upon entry for permit holders (unions)
Streamlining processes for unions bringing WHS Act offences proceedings
Introduction of a dispute resolution procedure for WHS issues
Mandatory compliance with Code of Practice

The dispute resolution procedure relates to issues between a PCBU and any affected worker, a Health and Safety Representative or a union. The issues could include negotiations for a work group, HSR training, HSR information requests, the constitution of the WHS Committee and issues about cessation of work. Such WHS matters can be dealt with by the NSW IRC which has a WHS jurisdiction.

The expanded rights of entry for a permit holder (a union official) will be expanded to take measurements, conduct tests, and take photos or video in relation to a suspected contravention.

A PCBU must give Safework NSW a copy of any Provisional Improvement Notice as soon as practicable after being issued. Penalties apply for noncompliance.

Employer Bias Against Older and Younger Generations

According to recent research from Australian HR Institute and the Australia Human Rights Commission employers are hesitant to employ workers above 50 years of age or under 24 years of age.

24% of HR Professionals classify 51-55 years of age as ‘older. This has increased by 10% since 2023.

Only 56% were open to hiring employees aged 50-64 – dropping to 28% for those aged 65 and over.

At the other end of the age scale only 41% were open to recruiting jobseekers aged 15-24 ‘to a large extent’

While older workers rated well for loyalty (74%), reliability (64%) and ability to cope with stress (62%), when compared to younger colleagues, they were rated lower for their ability to use technology and career ambitions. Only 7% of respondents responded that older workers had higher energy levels.

Younger workers rated 1% for reliability, 2% for loyalty and 2% for their ability to cope with stress.

The study included 75 respondents from the Private sector, 30 from the Government sector and 31 from the not-for-profit sector.

Be Careful Using ChatGTP or Other AI for Legal Advice

The Fair Work Commission recently handed down a decision against an employee who used ChatGTP to prepare his application. The employee admitted using the AI tool during the hearing.

The Commission stated this was evident from the significant deficiencies in the application which had failed to address the required elements for establishing a contravention of the Fair Work Act.

ChatGTP had recommended the former employee commence multiple legal actions against his former employer despite the applications being significantly out of date.

The Commissioner highlighted substantive issues concerning the quality and merit of the former employee’s application stating it was ‘best described as hopeless’. The Commissioner also stated the AI generated application resulted in flawed proceedings and wasted the Commission’s and the employer’s time.

Employers are advised to be careful using AI in relation to human resources or employee relations initiatives in their organisations.

Changes Which Have Recently Commenced

Government Funded Paid Parental Leave & Superannuation Payments

From 1 July the Government funded paid parental scheme has increased to 42 weeks. This is part of the plan to progressively increase the paid scheme to 26 weeks from July 2026 providing $24,000 in support following the birth or adoption of a child. More information.

From 1 July 2025 the ATO will make a 12% superannuation to someone who is being paid the Government funded paid parental leave. This will be paid at the end of the 2025-206 financial year.

New Statutory Tort of Privacy Under the Privacy Act 1988

Employees now have access to take legal action under Tort law against their employer for serious breaches of privacy. Under this tort an employee’s privacy can be breached by misusing private information that relates to the individual or intruding into their private space – where there was a reasonable expectation of privacy in all the circumstances. More information please check the July Monthly Review.

Fair Work Ombudsman Disability Support Services Inquiry

The Fair Work Ombudsman has launched an inquiry into compliance with workplace laws, including Awards, in the disability support services sector.

The Ombudsman stated that in the initial period it is initiating this review as a positive approach to this sector to identify and rectify major issues. More information – August Employee Relations Update

Changes - Pending / Slow Progress

More information will be provided on these items in upcoming Employee Relations Updates if important progress is made.

Fair Work Commission - Part-time Award Provisions Review

The Fair Work Commission has set up an Expert Panel 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. A Directions hearing has been set for 3 September to discuss how the case will proceed.

Any outcome from a review of these 11 Modern Awards is likely to flow on to other Modern Awards on completion of this initial phase. More information – August Employee Relations Update

Fair Work Commission Degree-Qualified Professional Classifications Review

The Fair Work Commission has formed an Expert Panel and commenced a major new review focussing on work value in degree-qualified professional classifications in specific modern awards. The review will examine undervaluation with specific attention to gender undervaluation. Twenty-two Awards will be reviewed by the expert panel. Initial submissions were due buy 22 August. More information – August Employee Relations Update

Fair Work Commission – Superannuation Clause Review

The Fair Work Commission has initiated a review of superannuation provisions in Modern Awards. This primarily relates to Awards which do not have standard superannuation employer contribution clauses and where the name of the default funds need to be updated in the Awards. This is unlikely to affect most employers who have long established superannuation processes in place.

Restrictions on Post Employment Restraint Clauses in Employment Contracts

Federal Government intends to the amend the Fair Work Act 2009 to limit the enforcement of post-employment restraint clauses in employment contracts.

A Competition Task Force in Treasury has opened a consultation period which gives interested parties the opportunity to share their views on banning non-compete and other clauses which restrict workers moving jobs. Submissions will be considered in finalising Government policy on this issue.

The changes are expected to affect new employment contracts entered into from 2027. More information – August Employee Relations Update

Useful Information

Wage Increase Data – August 2025

The latest ABS data released on 13 August shows a 3.4 percent increase in wage over the 12 months to the end of June 2025. This is unchanged from the March quarter. The private sector increased by 3.3 percent and the public sector increased by 3.6 percent. More information

Enterprise Agreement Increase Data

The latest wage data released by the Department of Employment and Workplace Relations at the end of June reveals the following about enterprise agreement increases:

Employees covered by enterprise agreements has increased from 2.14 million in March 2024 to 2.67 million in March 2025.

Employees covered by union negotiated enterprise agreements received an average annualised increase of 3.8 percent while employees covered by non-union enterprise agreements received an average increase of 3.2 percent.

CPI Data - July 2025

Recently released ABS data indicated the Consumer Price Index rose 2.8 percent in the 12 months to July 2025 – which is up from 1.9 percent in the year to June 2025. The ABS attributed most of the jump to increases in electricity prices which rose 13.1 percent.

Modern Awards List

Most employers will be aware of where to find the latest Modern Awards but just in case you’ve lost the link here it is.

A Useful NSW Government SafeWork Website

Links to Codes of Practice, Hazards, Resource Library, Video and Webinar Library, Podcasts, and Newsletters etc. Check it out here

A bit of workplace humour…..

A bonus for those of you who have read this far!

The closest people come to perfection is on an employment application.

Is the glass half full? Is it half-empty? According to engineers, the glass is twice as big as it needs to be.

The trouble with being punctual for business meetings is that nobody’s there to appreciate it.

My wife tells me I talk in my sleep all the time. But I’m skeptical. Nobody at work ever mentions it.”

My resume? A list of things I hope future employers never ask me to do.

Disclaimer
The above information articles are general in nature and do not constitute advice. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future. Should you require advice or guidance in relation to any of the above (or other employee relations topics) please contact Michael Schmidt to discuss your particular circumstances.

Please contact Michael if you require further information on the above matters are are seeking employee relations advice.

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