MV Law Employment Newsletter – January 2026
Employment updates & tips for your business
Recent Fair Work Commission Cases
Construction, Forestry and Maritime Employees Union – The Maritime Union of Australia Division v Kalmar Equipment (Australia) Pty Ltd [2025] FWC 3317
The Fair Work Commission (FWC) heard a recent dispute regarding a discipline and termination policy and procedure (‘Policy’). A company, Kalmar Equipment had engaged a Human Resources company, iHR Australia to investigate an employee complaint.
The CFMEU asserted that the Policy, which was incorporated into the enterprise agreement, intended for internal resolution of matters and that external involvement undermined the Policy.
Deputy President Roberts of the FWC disagreed with the CFMEU, finding that despite there not being reference to a third party in the relevant Policy, iHR was able to be engaged albeit limited to fact finding and not decision-making. In consequence, the external investigation process could continue.
Key takeaways:
It is permissible to engage an external company to investigate complaints, notwithstanding that this may not be incorporated into the employment agreement or workplace policy. Nevertheless, it is best for transparency to update your materials to reflect this option to avoid concerns or future disputes.
Typically, external investigators can only make fact-finding decisions and should be cautious in issuing any disciplinary recommendations.
Kha v Glenbourne Investments Pty Ltd [2025] FWC 3416 (costs decision) & Kha v Glenbourne Investments Pty Ltd [2025] FWC 3010 (unfair dismissal decision)
This case involved a successful order for costs against an employee, in the FWC.
The Applicant (Mr Kha) had brought an unfair dismissal application against the Respondent (Glenbourne Investments). During this application, the Applicant issued hundreds of emails to the respondent which included threats such as “If you step against Me, you better finish the job. Because when I shoot, it’s a double tap to the head…” The emails totalled more than 1800 pages in length.
The FWC issued a direction to confine correspondence to relevant matters or correspondence that reasonably relates to the conduct of the proceeding. The Applicant continued to issue irrelevant correspondence, and the Respondent sought a dismissal by the FWC of the application, for which was ordered.
The Respondent then sought an order for their legal costs on an indemnity basis (all reasonable expenses to be paid). FWC ordered the Applicant to pay for the legal costs incurred as a result of the sending of the emails.
The FWC found the employee’s continuation of the email barrage, with the admitted purpose of adversely affecting the employer, warranted an indemnity costs order.
Key takeaways:
Cost for matters brought within the FWC are typically borne by each party, however, in certain circumstances, the FWC can order a party to pay the other’s costs as was the case in this matter.
Where a party is sending excessive emails that are not relevant, relatable or necessary to the proceedings, the receiving party may have good prospects in seeking their legal costs.
KEY DATES & CHANGES
20 November 2025: Changes to Non-disclosure Agreements (NDAs)
The Victorian Parliament has passed the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025 which disallows NDAs in the workplace with limited exceptions. For example, an NDA is permissible if the complainant requests there be an NDA and a 21-day cooling off period has passed before agreeing to the NDA. The object is to empower the complainant by permitting the sharing of their experience with others. This follows recent trends in the context of the #MeToo Movement and the employer’s positive duty to prevent sexual harassment. We may see similar legislation being proposed in other states and territories.
Australia Day Public Holiday
As part of the National Employment Standards, an employee is entitled to be absent from work on public holidays. Though, an employer may request an employee to work on this day if the request is reasonable (s 114 Fair Work Act 2009 (Cth)). To determine a reasonable request, look to aspects such as: the nature of the workplace, the employee’s personal/family circumstances, any overtime compensation and the amount of notice given. A recent mining company was penalised $15,000 for contravening section 114 and ordered to pay compensation in the amount of $83,700 for non-economic loss (Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372).
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:
- Updating your workplace policies or contracts in respect of investigating work complaints;
- Undertaking a workplace investigation regarding misconduct allegations;
- Bringing/defending proceedings in the FWC, including in relation to a costs order;
- Resolving sexual harassment work disputes and navigating NDAs;
- Staying compliant in respect of communicating holiday shutdown or work periods; And much more…
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.