Australia: 2016 – The year that was: an annual workplace relations recap

Last Updated: 14 December 2016
Article by Michelle Dawson

Highlights of significant changes and developments as we farewell 2016, and start to look ahead to 2017.

2016 Workplace Relations Recap

2016 saw a number of changes and developments to the workplace relations landscape. It would be an almost impossible task to comprehensively list all of the year's relevant developments. However, we have chosen to highlight a few significant areas as we farewell 2016, and start to look ahead to 2017.


Annual leave

Effective from 29 July 2016, most awards were amended to incorporate new provisions as to annual leave. The new provisions include:

  • a right for employers to direct employees to take annual leave if they have accruals exceeding eight weeks;
  • the ability for employees to take leave in advance with agreement from their employer (and where an employee's employment is terminated before they have accrued the leave taken in advance, the right for an employer to make an appropriate deduction from the employee's final pay); and
  • the inclusion of a cashing-out provision which will permit employers to agree with an award employee to cash out accrued annual leave if they:
    • have a signed written agreement with their employer;
    • have a balance of at least four weeks' annual leave remaining after they have "cashed out"; and
    • don't cash out more than two weeks in a 12-month period.

Award wages increase

Award wages increased by 2.4% from 1 July 2016, increasing the national minimum wage by $15.80 per week to $672.70 (or 41 cents an hour to $17.70). This increase was down on the increase in the previous year of 2.5%.

High income threshold

The high income threshold increased to $138,900 from 1 July 2016.

Maximum Superannuation contribution base

The maximum superannuation contribution base increased to $51,620 per quarter.

Fair Work Information Statement

A new Fair Work Information Statement was introduced on 1 July 2016. Employers should now be using this updated version of the Information Statement, accessible here: https://www.fairwork. fair-work-information-statement


The Road Safety Remuneration Tribunal ceased operating in April after it was abolished by legislation.

Building Code compliance requirements

Building industry participants with enterprise agreements are now (with a grace period until November 2018) being required to comply, and be properly certified as being compliant, with the Building Code 2014.

Fair Work Ombudsman activity

The Fair Work Ombudsman (FWO) has continued to be active in prosecutions for non-compliance, citing figures from the financial year just gone, to evidence that nine out of ten cases pursued accessories (parties other than the employer, including directors, senior managers, accountants, HR personnel etc) to alleged Fair Work Act breaches.

New legislation – Registered Organisations and Building and Construction

The key bills pertaining to the Government's industrial relations reform agenda, and the bills which triggered the double dissolution election, both passed the Senate at the end of November. The passage of the Fair Work (Registered Organisations) Amendment Bill is the most significant industrial relations legislative development since the Fair Work Act's creation in 2009. It will establish a new independent regulator, the Registered Organisations Commission (ROC), to oversee registered organisations and the dealings of persons working within registered organisations such as Unions. It will also include stronger protections for whistle-blowers. The Building and Construction Industry (Improving Productivity) Bill 2013 will re-establish the ABCC.


Garden leave

The NSW Supreme Court determined that the time served by a senior employee on garden leave did not count toward a prescribed restraint period under the terms of the employee's employment contract. Whilst the outcome of the case turned significantly upon the specific wording of the employment contract, the decision provided a useful lesson to employers

to ensure that, when preparing employment contracts containing garden leave and restraint provisions, they: are mindful of and properly reflect in the terms, the intended interaction between the two provisions; and, where the two are intended to operate "one after the other" (which is the usual intent of such clauses) to draw an express distinction between the termination of the employment contract and the cessation of duties.1

General protections

In one of the largest general protections claims payouts to date, an employer (a subsidiary of Rio Tinto) was required to pay to an employee $1,272,109 for past and future loss of wages, plus $24,626 in interest, together with a penalty of $50,000 to the employee's Union, when it was found to have breached the general protections provisions of the Fair Work Act. The employer stood the employee down just four days after, following protracted litigation against the employer, the employee was awarded significant damages for a back injury sustained some years earlier. The employer maintained that the employee was stood down only to protect health and safety, rather than for the reason alleged by the employee namely that he was stood down for exercising his workplace right to pursue the employer for damages arising from his injury, but was unable to prove to the court's satisfaction that the reason for standing the employee down was other than due to the exercise by the employee of the relevant workplace right. This case served as a reminder to employers to take care when making decisions to an employee's detriment, ensuring that the decision making process and appropriate reasons are adequately documented along the way.2

Accessorial liability

The FWO in November 2016 secured penalties against frozen yoghurt chain Yogurberry, a master franchisee, for its involvement in the exploitative practices of one of its franchisees. This has set the path for further master franchisee prosecutions where the master franchisee is found to have been knowingly involved in a franchisee's exploitative practices.3

Redundancy payouts and casual service

A Fair Work Commission majority controversially ruled that certain previous casual employment must be taken into account when calculating redundancy pay. This represents a departure from the way in which redundancy pay has commonly been calculated, namely by reference to employees' part-time or full-time service only (and not previous casual employment). Relating only to situations where a permanent employee's role is redundant in circumstances where the employee has at some stage during their tenure transitioned from a casual role (and not to casual employees who have always, truly, been casual employees – as true casual employees are not entitled to redundancy pay in any event), the decision renders it necessary for employers to consider redundancy practices and relevant implications carefully where casual-come-permanent employees are concerned.4


1DP World Sydney Limited v Guy [2016] NSWSC 1072 (1 August 2016)

2CFMEU v Hail Creek Coal Pty Ltd [2016] FCA 1032

3Fair Work Ombudsman v Yogurberry World Square Pty Ltd [2016] FCA 1290

4 AMWU v Donau Pty Ltd [2016] FWCFB 3075 (15 August 2016)

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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”

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.