Breaking News: A Fair Work Ombudsman, Commission and now a Court…
Prime Minister, Anthony Albanese has recently announced the Government’s intention to establish a Fair Work Court. This is following criticisms that the legal system can be complicated, costly and not timely in dealing with certain disputes. The Government is looking to remove the need for parties to commence or escalate their matter to the Federal Court of Australia or the Federal Circuit and Family Court of Australia.
The Court will be designed for use by both employers and employees on a range of workplace issues, including underpayment claims. There will be initial consultation on the design of the Court to ensure access to justice and adequate support remain key priorities.
It is also aimed at ensuring tailored employment expertise and operate simultaneously with the Fair Work Commission and Fair Work Ombudsman and other existing state industrial courts.
Recent Employment Law Cases
Case: United Workers’ Union v Allstaff Australia Sydney Pty Ltd [2026] NSWIC 39.
Topic: Underpayments – Why casual loading is unlikely to negate long service leave entitlements
A group of casual employees have been successful in obtaining a declaration for unpaid long service leave (LSL) in the Industrial Court of New South Wales.
- The dispute involved 13 casual employees who provided services to Woolworths supermarkets, employed by a labour hire firm, Allstaff Australia Sydney Pty Ltd (‘Allstaff’).
- The workers had each provided continuous service to Allstaff under one or more contracts for at least 10 years. When their contracts ended, the question arose as to whether they were eligible for a payment in lieu of LSL.
- Allstaff contended that there was no entitlement to LSL, denying liability on several grounds. One such ground was that they had paid a 25% casual loading pursuant to the Storage Services and Wholesale Award 2020 which included their LSL entitlement – in effect, offsetting any amount owed.
- A ‘casual loading’ is an additional amount added to a worker’s base rate for not receiving benefits attributed to permanent employees such as paid annual leave and personal leave.
- In part, Allstaff relied on a term in the employees’ employment contracts which provided: “I understand that [the hourly rate of remuneration] will be inclusive of but not limited to annual leave or any other relevant legislative entitlements in the State or Territory for which I am employed in, unless notified otherwise.”
Decision: The Court sided with the employees that they were eligible for LSL and should be back paid an amount equivalent to that entitlement. For any offsetting to apply, there must be a close connection between the payment and the obligation to which it is applied by way of set off. Furthermore, section 7 of the LSL Act 1955 (NSW) expressly prohibited the contracting out of LSL entitlements.
Key takeaways:
- Casual employees may still be eligible for LSL where there is continuous service to one employer for the requisite period of time. However, as LSL legislation is state-based, this may differ in each state/territory. Both the ACT and NSW long service schemes confer an entitlement to LSL on casual employees that cannot be contracted out of. In the ACT, the casual employee must have been offered regular and systematic employment for the requisite period in order to be eligible.
- It is unlikely that an offset clause in a contract can be used to satisfy an employee’s right to LSL, particularly where applicable LSL legislation provides that LSL cannot be contracted out of.
- Where an employer tries to offset any loading, allowance or leave entitlement with a higher pay or loading, there must be an offset clause in the employment contract, and preferably one that specifies the entitlements being offset.
Case: Byrne v CXC Corporate Services Pty Ltd [2026] FWC 2751
Topic: Risk of Artificial Intelligence in Fair Work Commission Applications
CXC Corporate Services Pty Ltd (‘CXC’) terminated the employment of Ms Byrne, whose employment was subject to a separate agreement with a client who ceased their request for CXC’s services. Ms Byrne applied for an unfair dismissal claim in the Fair Work Commission, but there was a dispute as to whether she was eligible. CXC raised a jurisdictional objection on the basis that Ms Byrne was a high-income employee.
- Ms Byrne was employed casually in the role of a Site Senior Health and Safety Advisor, receiving a salary above the high-income threshold.
- An employee whose income is above the high-income threshold (currently $190,100 per annum) is not protected by unfair dismissal unless an Industry Award or an Enterprise Agreement applies to their employment.
- Ms Byrne asserted that her employment was covered under the Miscellaneous Award 2020 which then enlivened her right to bring the claim. In preparing her submissions to the Fair Work Commission, it was noted, “This document was prepared with the assistance of generative artificial intelligence [AI]. I have checked this document and confirm that, to the best of my knowledge…”
- CXC rejected that Ms Byrne’s employment was covered by an Award, noting that:
- The role was a technical, professional position that required extensive experience in work health and safety and the role was not traditionally covered by an award;
- Ms Byrne required particular qualifications and advanced expertise to undertake the job, resulting in limited crossover with any classifications in the Miscellaneous Award; and
- Ms Byrne’s remuneration was more than three times higher than the highest classification in the Miscellaneous Award.
Decision: The Commission dismissed Ms Byrne’s application, confirming that the Miscellaneous Award 2020 does not cover managerial and professional employees or roles that due to their nature or seniority have not traditionally been covered by awards. In coming to the conclusion that Ms Byrne’s employment was not covered by the Award, Deputy President O’Keefe noted that “a professional is someone who has some specialist knowledge in a particular area and who is engaged to provide advice and / or services which require that particular area and level of knowledge” [65].
He also undertook an analysis of her casual pay to conclude that her income was above the high-income threshold and strongly criticised Ms Byrne for her reliance on AI:
“In summary and notwithstanding her AI undertaking, the Applicant presented three cases in support of her argument. One simply did not exist. One existed under another name but did not have the slightest relevance to this matter. The third existed and the name was correct but again, there was no relevance to the present case. … As such, the value of the Applicant’s submissions with respect to case precedent for her being award-covered is nil. I further note that in submitting these irrelevant and non-existent cases the Applicant has wasted significant time both for the FWC and the Respondent’s counsel.” [22-23]
Key Takeaways:
- Despite its name, the Miscellaneous Award 2020 is not a catch-all for employees that are not otherwise covered by another award. Specifically, it excludes professional and managerial employees.
- Using AI has significant risk when seeking advice or preparing for litigation, including in the Fair Work Commission.
- Those who use AI should not rely on it without fact checking the information it provides. Take measures to ensure it is giving correct information – for example, locate the case, read it in full or obtain legal advice from a professional.
Key Dates & Changes
1 July 2026
- 26-week entitlement to Government-paid parental leave (PPL) payments (130 flexible PPL days) under the Paid Parental Leave Act 2010 (Cth)
- Industry Award rates have increased
- High Income Threshold is now $190,100 which is relevant for unfair dismissal claims
- Pay Day Super commenced, which changed how superannuation contributions are paid
Did you know?
If a worker goes on strike (also known as protected industrial action – ‘PIA’):
- during the strike period, the employee is not entitled to accrue annual leave and the employer is not able to deduct hours from the worker’s personal leave;
- The employer must withhold pay for the exact period an employee engages in a total stoppage or ban constituting PIA, unless it is a partial work ban; and
- PIA is different to a stand down direction by the employer.
How MV can help
As Canberra’s trusted employment and workplace relations lawyers, we have built a reputation for our passion, commitment and collaborative approach to your employment and workplace relations needs.
We can help you with:
- Advising on the right forum for your employment dispute (e.g. Fair Work Commission, Fair Work Ombudsman, Federal Circuit and Family Court);
- Reviewing your employment agreements and ensuring any offsetting of entitlements is valid;
- Preparing or responding to a Fair Work Claim;
- Confirming your rights when taking protected industrial action; and
- Much more…
Let us assist you today.
Authors: Amy Sydney & Laura Wood
Ph: (02) 6279 4444
Email: info@mvlaw.com.au
This newsletter does not constitute legal advice, and we encourage you to reach out for us to provide customised information for your circumstances.