How to stay compliant in 2025

There have been seismic changes in the employment landscape this year and HR managers have reason to feel overwhelmed. But they must stay ahead of the game and be prepared to start 2025 in full compliance of new workplace and industrial relations laws and regulations.

Australian Business Lawyers & Advisors director Julian Arndt picks recent changes to rules around the employment of casual staff and contractors as priorities.

As of 26 August this year, casuals “who aren’t really casuals” can ask for their employment to be converted to permanent employment, he said.

“If you haven’t done some form of audit to work out how many of your casuals [may have a claim to convert to permanent], you really need to know that,” Arndt told HRD.

“You want to know who can make that choice so that you go into the New Year feeling relatively comfortable you are not going to have a whole bunch of new permanent employees on your books merely because you’ve let casuals become something other than casuals,” said Arndt, who will be speaking on day one at the HRD National HR Summit in Sydney on 1 and 2 April.

Contractor status and compliance

The risk is more acute with contractors. “It’s much more about what the true nature of their engagement is,” he said. “If you have those kinds of workers in your business, they will be able at any time to say, ‘Actually, I’m not a contractor – I’m an employee.’”

The definition can shift from contractor to employee, he said, if an employer has been seen to exercise a fair degree of control over the worker, the worker wears the employer’s uniform and uses the employer’s tools and the worker doesn’t really run their own business.

If a worker is successful in arguing they are an employee, the consequences for HR may be significant, starting with potential underpayment. “I would not be going on holiday unless I was confident the people who I think are engaged as contractors are actually contractors,” Arndt said.

Flexible work requests and the Fair Work Commission

Flexible work arrangements have been a breakthrough for workers who need them, such as parents of young children, carers and people with disabilities. Workers whose requests for flexible work arrangements have been denied are only now realising they can take their employer to the Fair Work Commission, Arndt said.

“We’re seeing a lot of people who have been on parental leave asking to come back part-time, say, and the employer is saying, ‘Well, no, we don’t really do part-time employment,’” he said. “In years gone past, that was up to the employer. Now employees are realising the Fair Work Commission can decide it for them, whether the employer offers part-time positions or not.”

The person you thought was a full-time worker might only want to come back next year for three days a week. “Can you accommodate that, and will you be able to mount an argument in the Fair Work Commission should they bring one?” he said.

Positive duty and sexual harassment

Arndt admitted he talks to clients about positive duty – the requirement for all employers in Australia to take reasonable and proportionate measures to eliminate sexual harassment and other prohibited forms of sex discrimination, sex-based harassment and victimisation – a lot.

“If you haven’t got a new policy, if you haven’t trained your staff, if your board don’t know about it, if you don’t have a grievance policy, if you haven’t done a risk assessment, then you are in breach,” he said.

The Australian Human Rights Commission since last December has had the ability to enforce the positive duty, “and they will be looking for people who haven’t done enough to satisfy [it],” Arndt said.

“If you don’t have a policy, it is something that should keep you up at night, because it’s not just going to be employees at risk, or potential Fair Work claims, but you may well end up on the front page of the paper, which is where no-one wants to be,” he said.

Remuneration under review

Finally, before heading off on leave at Christmas, he said, make sure everyone’s being paid at least lawfully what they are entitled to and check that modern awards and enterprise agreements are not being breached.

“Unless you are thinking quite carefully about what you are paying employees, you have all kinds of risks,” he said, such as being drawn into enterprise bargaining, multi-employer agreements “that are negotiated by people who aren’t you”, and the potential for being subjected to same-job, same-pay orders. “As well as the fact there are all kinds of new industrial relations legislation that have been brought in to increase wages,” he said.

National HR Summit

At the HRD National HR Summit in Sydney on 1 and 2 April, Arndt of Australian Business Lawyers & Advisors will be speaking on day one about “Navigating the new era of workplace and IR laws in 2025”.

He will provide insights on the challenges ahead for employers and what they need to review in order to be compliant with new laws and regulations. Arndt will also be answering questions during an “ask the expert” session.

Register for the HRD National HR Summit here.