Australia: Our top 10 employment, workplace & safety issues for 2015

In this In Brief, we look ahead and identify the 10 key issues that are likely to dominate Australian employment, workplace and safety law in 2015.


The major focus of the workplace reform debate this year, undoubtedly, will be the Productivity Commission (PC) Review of the Workplace Relations Framework.

The terms of reference for this inquiry were released by the Abbott Government on 19 December 2014. They require the PC to assess the performance of the federal workplace relations framework, including the Fair Work Act 2009 (Cth) (FW Act) and instruments operating under the legislation, focusing particularly on:

  • key social and economic indicators important to national wellbeing, productivity and competitiveness;
  • the capacity of the IR framework to adapt over the longer term to issues arising due to structural adjustments and changes in the global economy;
  • the impact of the FW Act and related legislation on jobs, incomes and the economy; according to business size, region and industry sector; and with reference to the experience in other OECD countries.

On 24 January 2015, the PC released five Issues Papers1 which provide further details of the focus of the review and invite submissions from stakeholders. The Issues Papers indicate that the following will be among the key matters to be addressed in the PC review:

  • the level of minimum wages, the connection between wages and productivity, and whether the Fair Work Commission (FWC) process for the annual review of minimum wages may need to be changed;
  • the interaction between elements of the "safety net" of minimum employment conditions, including the option of a reduced role for modern awards and provision of additional entitlements through the National Employment Standards (NES);
  • penalty rates, particularly for weekend work, including the possibility of removing regulation of penalty rates altogether (leaving employers and employees to reach agreement on whether these rates would apply);
  • various aspects of the enterprise bargaining framework, including whether there should be further limits on agreement content and pattern bargaining, whether the provisions for greenfields agreements and individual flexibility arrangements are appropriate, and whether more incentives are needed to ensure parties bargain for productivity;
  • whether the secret ballot requirements for protected industrial action are too prescriptive, the possibility of other industrial action options for employers beyond lockouts, and how legislation might address the question of "aborted" industrial action (i.e. withdrawal of notified industrial action);
  • the effects of current protections against unfair dismissal on firm costs, productivity, hiring and recruitment practices and employment structures;
  • whether the general protections under the FW Act have provided certainty and clarity to all parties;
  • the operation of the new protections against workplace bullying, including their interaction with work health and safety laws;
  • how effectively the institutions overseeing the IR system, including the FWC and the Fair Work Ombudsman, are working;
  • whether there is a greater role for competition law in regulating workplace relations;
  • the extent to which differing arrangements are needed for the regulation of employment relations in the public sector (at federal, state and local levels) as opposed to the private sector;
  • the regulation of alternative working arrangements, including contracting and labour hire (including whether enterprise agreements restrict the use of these types of labour).

Timetable for the PC Review throughout 2015

24 January      

PC Issues Papers released

13 March

Deadline for Initial Submissions from interested parties


PC's Draft Report


Draft Report Public Hearings


PC's Final Report

If your organisation is interested in making a submission to the PC Review and/or attending one of its public hearings, you can register your interest here.

An indication of the PC's perspective on the current workplace relations framework is provided by its observation that:

[The] combined influence of the employment contract, awards, the NES and enterprise agreements on the employment relationship makes Australia's WR system one of the most complex in the world. (PC Issues Paper 3, page 15)

Therefore, recommendations for significant amendments to the FW Act are likely to emerge from the PC inquiry. It will then be a question of which recommendations are taken up by the Government in the lead-up to the 2016 federal election – hence the importance of this review process over the next 12-18 months.


The PC Review was a key feature of the Coalition's 2013 "Policy to Improve the Fair Work Laws", which also committed the incoming Government to implementing modest changes to the FW Act in its first term of office. The Government now has the following five workplace reform Bills before federal Parliament:

  • Fair Work Amendment Bill – making the processes for entering into greenfields project agreements, and individual flexibility arrangements, more workable for employers. The Bill will also limit union rights of entry to workplaces for discussion and recruitment purposes.
  • Fair Work (Registered Organisations) Bill – increasing standards of financial accountability and reporting for office-holders in trade unions and employer organisations. Further, the Bill will establish a new Registered Organisations Commission to oversee the governance and accountability of unions and employer bodies and to provide assistance to members of these organisations in cases of impropriety or non-compliance with rules.
  • Building and Construction Industry (Improving Productivity) Bill – re-establishing a specialist regulator, the Australian Building and Construction Commission, to maintain the rule of law on building sites and ensure that unions comply with applicable laws relating particularly to industrial action and entry onto sites (see further at point 5 below).
  • Fair Entitlements Guarantee Amendment Bill – reducing maximum redundancy payments under the General Employee Entitlements and Redundancy Scheme (GEERS) to 16 weeks' pay, depending on the employees' length of service.
  • Fair Work Amendment (Bargaining Processes) Bill – requiring discussions over workplace productivity as a condition of FWC approval of enterprise agreements; and limiting rights to take protected industrial action in support of bargaining claims through two new requirements (i.e. that efforts have first been made to negotiate an agreement; and that the claims put forward are not excessive and will not adversely affect productivity).2 A Senate Committee is scheduled to report on this Bill by 25 March 2015.

In the past six months, support from cross-bench Senators for the Government's overall legislative program has been limited. As a result, there is a considerable backlog of proposed legislation, and the volatile situation in the Senate means that it is by no means certain that any of the five workplace reform Bills will be passed by Parliament in 2015.


Responding to significant pressure from the public and internally within the Government, the Prime Minister today announced that he will abandon his proposed expansion of the Paid Parental Leave (PPL) scheme.

This decision resolves an area of considerable uncertainty for employers over the last 18 months. The current PPL scheme, introduced by the former Labor Government, will remain in place – operating in conjunction with the PPL policies adopted by many Australian businesses and public sector bodies.


The year ahead will also see plenty of action on the bargaining front, with agreements up for renegotiation at key employers across the public and private sectors:

  • Agreement negotiations are ongoing at DP World following protected industrial action by employees and a lockout by the employer last December.
  • Protected action by Jetstar pilots may be imminent, in light of a proposed pay freeze across the Qantas Group. Qantas ground staff will be voting soon on a proposed new agreement including an 18-month pay freeze.
  • The long running negotiations between the Maritime Union of Australia and vessel operators and manning agents, regarding offshore oil and gas maritime workers, may escalate into industrial action and further litigation. The current agreements expired in 2013 and negotiations have been ongoing for more than a year.
  • Agreements will also be renegotiated in 2015 covering major employers in sectors including retail (Woolworths, Coles, David Jones), finance/insurance (CBA, Westpac, QBE, Medibank) and communications (Telstra, Optus, Seven Network).3
  • Industrial action is likely in the federal public sector, as the Government maintains a hard line in agreement negotiations with below-CPI pay increases on offer. Some forms of protected action were taken late last year by staff in the Department of Human Services, including Centrelink and Medicare offices. Department of Veterans' Affairs employees have also approved protected action in a secret ballot held in December.
  • Bargaining in the Victorian public service should be less contentious than at the federal level, although the new Andrews Labor Government faces significant challenges in delivering on promises made to public sector unions. As well as resolving the long-running firefighters dispute, the Government must reach new agreements for the police force, health workers, VicRoads, Yarra Trams and Metro trains.4 These negotiations will take place in the context of a recent Full Federal Court decision5 affirming that enterprise agreements made under the FW Act are not subject to the implied constitutional limitations set down in the High Court's Re AEU decision.6 This opens the way for state public sector agreements to include provisions dealing with termination of employment, redundancy, consultation and related issues.


In addition to the Building and Construction Industry (Improving Productivity) Bill (see point 2 above), the future shape of regulation in the construction sector depends greatly on whether – and when – the proposed new federal building code takes effect.

The draft Building and Construction Industry (Fair and Lawful Building Sites) Code was released in April last year. Once in force, its proposed restrictions on agreement content will apply to agreements made from 24 April 2014. Amendments to the draft Code, announced by the Government in late November, would have the effect that the agreement content limits would also apply to agreement variations.

The uncertainty surrounding the proposed new Code, and its enabling legislation, creates a complex environment for the negotiation of new agreements in the building industry.

The Andrews Government in Victoria has already moved to abolish that state's construction code,7which was amended last October to impose similar limits on agreement content to those now being pursued by the Abbott Government federally.


Four-yearly modern awards review

FWC proceedings in the four-yearly review process for modern awards will continue throughout the coming year. This will involve consideration of – and potentially changes to – several key aspects of award regulation, including:

  • penalty rates across at least nine awards;
  • annual leave;
  • public holidays;
  • award flexibility;
  • casual "conversion" provisions; and
  • the interaction between award and NES entitlements.8

Agreement termination "test case"

A decision is expected from a Full Bench of the FWC following hearings late last year on Aurizon's application to terminate 14 enterprise agreements covering its Queensland workforce, amid failed efforts to negotiate a new agreement for train drivers and other operational employees.9

The decision affecting the rail freight operator will carry important implications for the capacity of employers to seek termination of expired agreements, particularly in the context of deadlocked negotiations for a new agreement.

CFMEU industrial action cases

The High Court will consider two separate CFMEU applications for special leave to appeal against decisions of the Victorian Court of Appeal:

  • the decision in CFMEU v Grocon Constructors (Victoria) Pty Ltd and Others [2014] VSCA 261, upholding findings of criminal contempt against the union and the imposition of $1.25 million in fines; and
  • the recent decision in CFMEU v Boral Resources (Vic) Pty Ltd and Others [2014] VSCA 348, in which the Court of Appeal upheld an earlier finding that the tort of intimidation forms part of Australian law.


The TURC's public hearings will continue from April, with Commissioner Heydon's final report and recommendations to be completed by 31 December 2015.

The Commissioner's rationale for requesting the Government to extend the TURC process by 12 months included the need for further investigation into possible criminal conduct by unions/union officials, such as "physical and verbal violence, cartel conduct, secondary boycotts, contempt of court and other institutional orders and the encouragement of others to commit these contempts".10

It will be very interesting to see the directions in which those investigations are focused over the course of the coming year.


It should become clear this year whether the Government is serious about implementing its proposal to create a separate appeals jurisdiction for the FWC.

The Australian Mines and Metals Association has strongly advocated the need for a separate appeals body due to inconsistencies in FWC single member decisions, while the Law Council of Australia opposes the change as potentially undermining the Commission's independence.

The Government will need to provide far more detail about this proposal, and a much clearer indication of the case for change, than has emerged to date.


In response to last year's review of laws applying to skilled migration, the Government is proposing to introduce a new category of "short-term mobility" visas which would enable employers to bypass the subclass 457 visa scheme for certain types of foreign workers. The new visas would not be subject to language or skills requirements, and employers would not have to show that there is no Australian worker who could fill the relevant position.11

This proposal would form part of a broader package of changes to make the 457 visa regime easier for employers to use, although the Government is yet to announce details of its response to the September 2014 review report.


National Transport Commission focus for 2015

Almost two-thirds of workplace deaths between 2012 and 2014 involved a vehicle.

Over the 10 years to 2012, 472 workers in the road transport sector were killed while at work and in 2012, the road transport fatality rate was 12 times the national average.

Road transport also has an injury rate significantly above other sectors with the most serious claims from body stressing and falls, which commonly cause sprains and strains of joints and muscles and fractures.

In 2015 the National Transport Commission (NTC) will focus on programs to help improve productivity growth in Australia's transport freight sector, and improve safety on the network. The NTC and Regulators will continue their focus on road freight transport industries with a goal to reduce the numbers of fatalities and injuries in 2015.

2015 will also see further WHS legislative developments, including:

  • clarification of the proposed Work Health and Safety Bill in Western Australia following a consultation period which concluded at the end of January;
  • the South Australian Government's response to last year's review of that state's model WHS legislation;
  • the likely direction of WHS reform in Victoria under the Andrews Labor Government, including whether Victoria will implement the national model WHS legislation and the future role of the Victorian WorkCover Authority.


1See here.

2 The question whether putting forward 'sham' or non-genuine proposals involves a breach of good faith bargaining obligations under the current FW Act provisions is under consideration in an appeal against Senior Deputy President Hamberger's decision in APESMA v Peabody Energy Australia Coal Pty Ltd [2014] FWC 6061 (4 September 2014).

3 Mathew Dunkley, "Call to keep lid on wage claims", The Australian Financial Review, 9 January 2015.

4 Richard Willingham, "Major EBAs loom for Andrews government in 2015", The Age, 8 January 2015.

5 United Firefighters' Union v Country Fire Authority [2015] FCAFC 1 (8 January 2015).

6 Re Australian Education Union, Ex Parte Victoria (1995) 184 CLR 188.

7 "Vic govt scraps state building code", Workforce, No. 19465, 22 January 2015.

8 Four-Yearly Review of Modern Awards [2014] FWCFB 9412 (23 December 2014).

9A separate agreement covering Aurizon staff was approved recently, against objections by relevant unions, in Aurizon Operations Limited and Aurizon Network Pty Ltd [2015] FWCA 550 (21 January 2015).

10Letter from Commissioner Heydon to Attorney-General George Brandis, quoted here.

11 Joanna Mather, "Easy entry for skilled foreigners", The Australian Financial Review, 7 January 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Most awarded firm and Australian deal of the year
Australasian Legal Business Awards
Employer of Choice for Women
Equal Opportunity for Women
in the Workplace (EOWA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.