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Mental Health and Recent FairWork Changes


As a result of the recent Job Summit held in Canberra and the related High Court rulings, there are some reforms in the pipeline from the Federal Government that are essential to be aware of, although there are no immediate changes happening in the short term in the long term for employers these changes will impact how SME’s operate.

These changes have recently been reported by HRM Online and Charles Power, Partner and National Practice Chair of the Workplace Relations and Safety Group at Holding Redlich.

Below is a summary of the top four to be aware of:

1. FairWork

In relation to the proposed changes to the FairWork Act these changes are centered around labour hire, casuals and enterprise bargaining.

The top running proposed reforms are:

  • A requirement that organisations supplying labour hire match pay and employment conditions afforded to employees.

  • Amendments to the National Employment Standards to enforce employers compliance with Superannuation Guarantee obligations.

2. Gig Workers and Contractors

After the precedented case around the Deliveroo delivery rider this year in an overturned decision deeming him an independent contractor not an employee, the High Court classification distinguishing an employee from a contractor will have significant implications for labour hire, platform workers and professionals who supply services as contractors with the High Court, significantly restricting the relevance of post contractual conduct with characterising the legal nature of a work relationship, which in some instances could potentially see employers setting their own terms and conditions of the relationship preventing employee like contractors accessing the safety net conditions in the FairWork Act.


This exclusion is now driving the government to implement its election promise of enabling gig workers to seek rulings from the FairWork Commission entitling them to access a minimum set of working conditions and wages.


3. Employee Complaints through the FairWork Act

A significant ruling in relation to employer managing employee grievances has been highlighted in a recent case against one of the big four. The main impact of this decision is that it sets some boundaries around when an employee has Fair Work Act protections when they voice an objection or complaint about a work issue. Charles Power says “It now appears to have been settled that employees don’t need to have access to a complaints procedure in an enterprise agreement in order to get this protection. The act of making the complaint is sufficient to attract the protection.” “However, not all complaints will be protected. The subject matter of the complaint has to be concerned with the employee’s own employment relationship and an entitlement or right arising from the employment contract, award or enterprise agreement. An employee is not protected if they simply complain about management decisions that don’t affect them.”


4. Workplace Risks and Managing Mental Health

SafeWork Australia and Victoria’s WorkSafe have proposed new regulations regarding employers’ responsibility to be proactive in managing the factors that invoke stress and psychological ill health in the workplace. The regulations will focus on employers needing to have as much regard to mental health hazards as they would to hazards that risk physical health,” says Power. “A manager’s propensity for bullying is as much a workplace hazard as a loose handrail or a faulty lift.” It’s expected that employer responsibilities once thought to be a ‘nice-to-have’ are now being embedded into law. “It will heighten the potential liability of employers under work health and safety laws if they don’t take action to protect and safeguard the mental wellbeing of the people that are working for them. “For example, a large organisation with previous instances of bullying behaviour that fails to have a formal system with documented procedures for reporting bullying complaints will be exposed to an investigation and potential prosecution by a safety regulator.

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