Two years ago, in a previous blog, we said the bell had not yet tolled for outsourcing. But that might be a gentle ringing you hear in the distance….

The High Court of Australia’s decision in Helensburgh Coal Pty Ltd v Bartley & Ors [2025] HCA 29 (Helensburgh Coal case) has increased the risk profile of redundancy programs where other functions in the business are being performed by contractors. Businesses facing unfair dismissal claims may now have to convince the Fair Work Commission that it would not have been reasonable to make changes to their enterprise to “insource” those functions. A flow-on effect may be that businesses are less willing to take the risk associated with outsourcing work in the first place.

Why would an employer need to think about insourcing contractor work during a redundancy program?

Unfair dismissal claims cannot be made by an employee who is “genuinely redundant”. That depends (at least in part) on whether it would have been “reasonable in all the circumstances for the person to be redeployed”. Up until now, there was a general understanding that someone could only be redeployed if there were vacant employment positions to put them into, and that there was no need to create jobs.

However, the High Court has now confirmed “redeployment” is not limited in that way – it will include looking at whether the employer could reasonably have made changes to how it uses its workforce to operate its business, including whether it could free up work for the redundant employee to perform.

In the Helensburgh Coal case, this meant looking at the use of contractors. The employer had longstanding contractors who were continuing to provide services to the company, and the impacted employees argued that the company should insource that work to the redundant employees, who had the requisite skills and experience. The High Court’s decision means that the Fair Work Commission was permitted to examine whether it was reasonable for the company to cease using the contractors to do that work and use the impacted employees instead.

As a result, whether a “genuine redundancy” has occurred will in some cases now depend, at least in part, on the Fair Work Commission’s assessment of whether it would have been reasonable for the employer to reorganise its business to create jobs including by insourcing work performed by contractors.

What does this mean for outsourcing?

The decision does not mean that employers cannot outsource work or that there is a legal obligation in every situation to replace contractors or labour hire workers with employees whose positions are redundant. However, any employer who proceeds with redundancies while still using contractors or labour hire is likely to face higher risks of a dispute, even if the impacted employees would require some retraining to perform the relevant work.

In any dispute about “genuine redundancy”, the employee(s) or their union could seek access to detailed business records, and ask the Fair Work Commission to assess whether that evidence shows it would have been reasonable to decide not to use any contractors or to insource functions that would have provided the redundant employees with ongoing work.

We will need to wait to see how many cases end up in these kinds of disputes, and how many employers are willing to defend their ongoing use of contractors or outsourcing.

Will businesses still be able to justify the continuing use of contractors if they are reducing the number of employees?

The Helensburgh Coal case related to a particular situation where:

  • the work being performed by the contractor workforce (conveyor belt maintenance) was work that was intimately connected with the work of the impacted employees;
  • there was evidence that the impacted employees could have relatively easily undertaken that work – because they had worked for the contractor in the past and had experience doing the work that was being performed by the contractor workforce; and
  • the Commission had determined that Helensburgh Coal was “not philosophically opposed to insource work by removing contractors”.

While each circumstance will be different, we expect that businesses going through redundancy programs will need to justify the ongoing use of contractors or labour hire by pointing to the reasons that:

  1. the use of contractors or labour hire to perform particular work remains important to the business’s operating model – this might relate, for instance, to the specialist skills required or the short-term or temporary nature of the tasks being performed by the contractor workforce. There might be other reasons too;
  2. the impacted employees could not perform the tasks being performed by the contractor workforce – for example, the employees might require technical qualifications or skills that would take many years to gain, or the work is irregular and sporadic.

If the employer does decide not to make a change to the way in which it operates its business, it will need to ensure the reasons for doing so are lawful, commercial and sensible, and should keep a careful record of them.

More generally, the decision emphasises the growing tension in Australian workplaces between:

  • unions pursuing their preference for direct employment, including their aversion to outsourcing any aspect of a business’s operations; and
  • business seeking more flexibility with how and when they organise their operations, and engage labour, in the face of fast-paced changes in the operating environment and ever-increasing regulatory complexity and fixed costs.

We expect to see more development, both in legislation and case law, in this area as employers and employees – and governments – grapple with these opposing forces.

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If you’re an employer operating heavy vehicles in NSW, understanding how an Enforceable Undertaking (EU) works under the Heavy Vehicle National Law (HVNL) could be critical to your legal strategy. When facing allegations of non-compliance, knowing who initiates the charge – and how that affects your legal options – can significantly impact strategic decision-making.

In the event of an alleged contravention of the HVNL, the National Heavy Vehicle Regulator (NHVR) may accept an EU as an alternative to prosecution. There are detailed guidelines and discretionary factors the NHVR apply when considering EU proposals. In 2023-2024, 16 EUs were accepted.

EUs have long been a useful feature of responsive regulatory frameworks. In the context of the HVNL, they represent an opportunity for duty-holders who might otherwise be criminally convicted and punished, to instead implement safety programs in relation to transport activities relating to a heavy vehicle. Those programs can significantly improve safety outcomes of individuals working in such activities, and more generally, everyone else who use public roads on which heavy vehicles travel. Indeed, “promoting a strong safety outcome” and “broad transport community benefits” are key factors the NHVR consider when assessing EU proposals.

EUs are a legislative mechanism the NSW government would (presumably) want on the table for potential safety programs or initiatives that could significantly improve the sobering fatality and serious injury data for NSW roads: 352 lives lost in the last 12 months and 10695 serious injuries in the 12-month period ending September 2024.

But the NHVR EU Policy and Guidelines apply to the NHVR. It does not appear that the NSW Police – who also have responsibility for enforcing compliance with the HVNL in that jurisdiction – have their own published EU Policy and Guidelines in relation to HVNL offences.

In New South Wales, where the Police charge and prosecute alleged offences against the HVNL, police prosecutors can only accept an EU as an alternative to prosecution where they have the NSW Police Commissioner’s written authority to do so under s590A(10) of that law. While it may exist, we are unaware of any such written authority.

What does this mean? In a practical sense, it means if the NSW Police have laid charges against you for an alleged offence against the HVNL in that jurisdiction, the important remedy (or mechanism) of applying for an EU to achieve safety outcomes on public roads may be more challenging.

While the example above is NSW-centric, the HVNL operates in all Australian jurisdictions, except Western Australia and the Northern Territory. Police officers in these jurisdictions also have powers and functions (including enforcement powers) in respect of the HVNL. But the NHVR Compliance and Enforcement Policy expressly states that it does not affect the exercise of any applicable discretion by police officers exercising powers under the HVNL.

The ‘take-home message’ – it is important to understand not just the law, but also who is enforcing it and how that agency exercises its regulatory and prosecutorial discretion. Those factors can change what legal options are available to you and what strategy to deploy in a particular case.

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In Part 3 of our series, we’ll look at the standard of proof, the conduct of interviews, how each country aims to protect confidentiality and whistleblowers, and privacy. (Part 1 covers the definition of ‘workplace’ harassment, investigation scoping and legal privilege. Part 2 covers who forms part of an investigation team, how location affects which laws apply to an investigation, notification and timing requirements).

#7 – What standard of proof is used in investigations?

The standard of proof used in workplace investigations is crucial for determining the outcome of allegations.

The civil standard of proof is consistent across Australia, Hong Kong, Singapore and PRC – if this is applied, then the evidence must show that it is ‘more likely than not’ that the conduct occurred.

Unless policies, workplace-specific laws or contracts require a different approach, cross-border investigations in these countries can use the same standard when making findings based on the evidence.

#8 – How should interviews be conducted during investigations?

The interview process is a critical component of any investigation. It allows the investigator to uncover details and firsthand accounts in order to understand what occurred.

Witness selection should be based on whether they can be expected to provide relevant evidence. It is best practice to limit the interview list where possible, in order to reduce the risk of the accused’s ongoing employment becoming untenable by virtue of too many people knowing about the allegations. In some investigations, it will be necessary to interview a large number of people, given the nature of the allegations, but that is not always the case and careful thought should be given to keeping control of the interview list.

In Australia, for wellbeing reasons, it is best practice to allow a support person to accompany the witness and (in some cases) employers may permit union or legal representation. This is not the case in Hong Kong, Singapore and the PRC, where witnesses are not legally permitted to be accompanied to the interview, neither is it common practice to allow this for wellbeing reasons. Recorded interviews require consent under some laws, ensuring that all parties are aware of and agree to the recording. Where recording is not consented to, it is important in all jurisdictions to take detailed notes of the interview. In the PRC, secret recordings of investigation interviews may be admissible in court (unless carried out in a private space such as a witness’s home), which is something to be mindful of when conducting investigations in the PRC.

#9 – How are confidentiality and whistleblower protections ensured?

Confidentiality and whistleblower protections are essential components of workplace investigations because when employees know their identity and information will be kept confidential, they are more likely to participate without fear of retaliation.

Australia has strict whistleblower protections. If a complaint includes ‘whistleblowing’ as defined under law, onerous confidentiality obligations limit both disclosure of the whistleblower’s identity and information that could lead to whistleblower identification. Investigation processes in Australia must be adapted to ensure that the investigation itself does not inadvertently breach whistleblower confidentiality protections, which can be a criminal offence. Australian law also protects people from victimisation or ‘adverse action’ in their employment.

In Hong Kong, there is no express protection for whistleblowers. In the anti-discrimination ordinances of Hong Kong, there is, however, protection against victimisation where an employee raises a complaint or claim related to a protected characteristic (which is limited to gender (including marital status, pregnancy and breastfeeding), race, disability and family status in Hong Kong. Similarly, in Singapore, there are no general whistleblower protection laws. However, the Workplace Fairness Act 2025 prohibits employers from retaliation against employees who have raised a discrimination or harassment-related grievance.

The PRC implements safeguards for whistleblowers and witnesses under confidentiality laws to protect their legitimate rights and interests, prevent retaliation and ensure their psychological and professional wellbeing.

#10 – How are data privacy and cross-border transfers managed?

Data privacy and cross-border transfers are critical considerations in workplace investigations.

In Australia, there are restrictions on use, disclosure and handling of data, including both ‘personal information’ under federal law and certain categories of ‘health information’ under federal and state laws. There are also restrictions on the transfer of data offshore and/or disclosure to third parties.

In Hong Kong, employers should check whether their existing Personal Information Collection Statement (PICS) is broad enough to cover the use, collection and transfer or employees’ personal data for the purpose of the investigation and also whether the witnesses (including the complainant and the accused) have been issued with the PICS. If not, employers could issue a new PICS for the purpose of the investigation, or could expressly seek the witnesses’ consent to the use of their personal data in this way (although consent is not required under the Personal Data (Privacy) Ordinance (PDPO) where a PICS has met all the necessary notification requirements, unless existing personal data will be used in a new way). The PDPO does not currently prevent or restrict the transfer of personal data overseas.

In Singapore, the requirements on the use, collection and disclosure of personal data fall under personal data protection legislation. In respect of cross-border transfer of personal data outside Singapore, the general rule is that personal data shall not be transferred outside Singapore except in accordance with the personal data protection legislation or if exempted by the Privacy Commission upon application.

In the PRC, the processing of personal data must meet specific conditions, including in relation to consent, security assessments and data protection agreements. The PRC framework is the strictest data transfer regulation in Asia Pacific.

Are there other measures that should be considered during investigations?

In Australia, suspension during an investigation can be considered, however any changes to complainants’ work conditions must be carefully managed to avoid unlawful adverse action. Providing wellbeing support is also essential to ensure that all affected employees receive the necessary assistance to prevent risks to work health and safety.

In Hong Kong and Singapore, suspension during an investigation is also contemplated where there are concerns around the integrity of the investigation being jeopardised by having the accused (and perhaps others) continuing to work during the investigation process, and also if there are concerns around personal safety/retaliation. Employers should be aware of the laws regarding suspension in these jurisdictions though, as these can affect how long the individual can be suspended for and what they are paid during the suspension. In the PRC, suspension is permitted as long as the employee continues to receive his/her normal salary during it.

We hope that our series of breaking down ten key aspects of cross border workplace investigations in APAC has been insightful. Our authors would be pleased to address any follow-up queries you may have.

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In Part 2 of our series, we’ll look at who forms part of an investigation team, how location affects which laws apply to an investigation, notification and timing requirements. (Part 1 covers the definition of ‘workplace’ harassment, investigation scoping and legal privilege).

#4 – Who should be part of the investigation team?

The composition of the investigation team can significantly impact the effectiveness and credibility of the investigation.

In Australia, some states restrict who can conduct investigations. Subject to this restriction, the investigation team should be experienced in local requirements and standards for investigations.

In the PRC, there is no legal requirement for the composition of the team, but typically an investigation would involve legal counsel and HR from the client, and/or external advisors (e.g., law firms such as Seyfarth). Gender diversity may be considered for sensitive cases (such as sexual harassment) to ensure witnesses feel comfortable.

In Hong Kong and Singapore, investigations are often carried out internally by legal counsel, the ER/investigations team and/or HR, or they are carried out externally by a third-party provider such as a law firm or HR consultancy firm.  The guiding principle is to keep the team who is carrying out the investigation small and of close proximity, to maintain the confidentiality and integrity of the investigation. The size and composition of the investigation team will also depend on the jurisdictions involved, logistics and the nature or sensitivity of the matter.

#5 – Which laws governs a particular workplace investigation?

In Australia, the governing law depends on factors such as the employment contract, incident location, location in which the investigation occurs or the location of the company or parties. For cross-border matters, there is the possibility of multiple laws applying.

The way in which an investigation is conducted is not prescribed by law in the PRC, Hong Kong and Singapore and those investigations that focus on fact-finding only do not necessarily have to consider what laws may apply to the situation (other than in respect of legal privilege and data privacy).

What is considered, in Hong Kong and Singapore, are any processes and procedures set out in relevant employee handbooks, policies, code of conduct or contracts in relation to investigations, whistleblowing, grievances and disciplinaries, etc. For cross-border matters, it can be the case that the grievance procedure relevant to one jurisdiction will need to be considered alongside the disciplinary procedure for another. The employer’s duties under local law may also need to be taken into account, such as the duty of care towards employees, the rules on vicarious liability, and preventing harassment and victimisation.

In the PRC, governing law is determined by the location of the company or the incident, rather than the terms of the contract or policy.

#6 – How should parties be notified about an investigation?

In Australia, it is best practice to provide some context in advance of an investigation interview and explain the ground rules for the interviewee in accordance with any relevant policies. It is not necessary to provide advance notice of questions (unless the company has committed to do this). Employers must also consider how best to support work health and safety during an investigation, for example, it is best practice to allow an interviewee a reasonable opportunity to bring a support person with them, without breaching confidentiality or compromising the investigation.

In Hong Kong and Singapore, there are no strict legal requirements regarding notification of investigation. In Hong Kong, where summary dismissal may be a possible outcome flowing from the investigation, it is advisable that the investigation be carried out in a full and thorough manner, which would include giving the accused notice of the investigation and allowing him/her a fair opportunity to put forward his/her side of the story. In Hong Kong and Singapore, where notification is given to parties regarding the investigation, care should be taken to emphasise the confidentiality of the investigation process.

In the PRC, there is no standard practice for notifying parties involved in an internal investigation. However, notifications should include the purpose and scope of the investigation, as well as the rights and obligations of the parties concerned. The language of the notice should be clear and concise.

The timing of an investigation can significantly impact its effectiveness and the perception of fairness.

Though Australia, Hong Kong, Singapore, and the PRC have differed slightly in their key considerations, the jurisdictions align on the matter of timing. There is unlikely to be a prescribed timeframe (unless stated in an internal policy), but action should be taken promptly to avoid delay and in turn, the credibility of an investigation. This is especially the case where one or more individuals have been suspended pending the outcome of the investigation.

In the third and final part of our series, we’ll look at the standard of proof, the conduct of interviews, and how each country aims to protect confidentiality and whistleblowers.

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Seyfarth recently hosted a webinar entitled ‘Managing Cross-Border Sexual Harassment Investigations in Australia and Asia’, addressing the practical considerations that employers should be aware of when investigating allegations of sexual harassment in the workplace. This webinar highlighted relevant laws and examples from Australia, Hong Kong, Singapore, and the People’s Republic of China (PRC). Given the strong interest in this topic, we bring you a series of three blogs that highlight 10 key considerations.

Managing cross-border sexual harassment investigations in the Asia Pacific region presents unique challenges due to varying legal frameworks, cultural norms, and procedural requirements. This blog series aims to provide an outline to help navigate these complexities, focusing on the key differences in investigation procedures across the Asia Pacific region. By understanding these differences, organisations can ensure that their investigations are conducted fairly, efficiently, and in compliance with local laws.

Part one of this series covers our first three considerations – the definition of ‘workplace’ harassment, privilege, and investigation teams.

#1 – When is ‘workplace’ sexual harassment unlawful in each country?

This question affects when sexual harassment is a matter for employers, and can validly be the subject of an investigation. Remote work, social events, and other non-traditional settings can all raise complexities.

In Australia, sexual harassment is unlawful (and employer liability can arise) in a variety of circumstances where the harasser or victim is a worker, or where there is a relevant connection to work. This extends outside the boundary of a physical ‘workplace’ or ordinary working hours.

In the PRC, ‘workplace’ usually encompasses social activities closely related to work and company organised events, for example, a work Christmas party.

In Hong Kong and Singapore, ‘out of hours’ events may be considered part of the ‘workplace’ if there is a sufficient connection between the workplace or employment and the out-of-hours conduct engaged in by the employee. In Hong Kong, workplace sexual harassment can occur not just between employees but between any ‘workplace participant’, which includes contract workers, interns, and volunteers as well.

#2 – Establishing the scope of sexual harassment investigations

Being clear about the scope of a workplace investigation will help define the specific issues to be investigated, and what questions the investigator will (or won’t) answer. For an investigation to be thorough and effective, the scope must be clearly defined to ensure that it addresses all the relevant issues.

In Australia, it can assist to ensure the scope is recorded in writing, including what allegations are being investigated and whether the investigation will be limited to fact-finding.

In Hong Kong, the scope of the investigation is quite often limited to fact-finding, with advice on what action to take subsequent to the investigation (including any disciplinary action) being carried out by separate lawyers within the same firm (with information barriers put in place) or a different firm, so as to maintain the independence of the investigation. The position is similar in Singapore, but with a little more flexibility.

In the PRC, investigators play a more active role than other jurisdictions in deciding the scope of an investigation, as well as providing recommendations and participating in disciplinary proceedings.

#3 – How is privileged information protected during investigations?

Legal privilege varies significantly across jurisdictions. This affects the extent to which confidential communications and documents can be protected from requests or orders for disclosure.

Legal privilege in Australia can apply to confidential communications where the dominant purpose was for litigation or provision of legal advice. It is possible that investigation records and the final report can be protected by legal privilege where they were created for a privileged purpose. In Australia, a common cause of dispute is whether privilege has been waived by later disclosure or use of documents for other purposes or if promises have been made about what would be disclosed.

In Hong Kong and Singapore, where investigations are conducted on a pure fact-finding basis (i.e., no legal advice is provided) and litigation is not reasonably in contemplation at the time of the investigation, it can be more challenging to assert legal privilege over the investigation process and report. If a client wants an investigation to be conducted under privilege, this will need to be carefully considered when establishing the scope of the investigation and steps put in place to achieve the protection of privilege.

The PRC does not recognise legal privilege like common law jurisdictions do. Lawyers in the PRC have an obligation to maintain confidentiality and have the right to refuse disclosure of certain documents or information in order to protect clients’ trade secrets and personal data.

In part two of our series, we will look at who forms part of an investigation team, how location affects which laws apply to an investigation, and notification requirements.

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“Curiosity killed the cat” is a proverb “used to warn of the dangers of unnecessary investigation or experimentation” (Wikipedia) or is an idiom “said to warn someone not to ask too many questions about something” (Cambridge online dictionary). Yet for the modern officer, curiosity is a must, as it aligns with their personal WHS due diligence obligation.

Work health and safety (WHS) legislation, case law developments and many a published article on corporate governance (or lack thereof), confirm that in the case of an officer, failing to investigate or ask questions about WHS can lead to potential corporate, and personal, criminal liability. And there’s more than just the legal side – there’s the societal expectations, reputational risks, and human impacts on the officer and others.

Legal changes and criminal penalties often reflect what society expects and values. When society demands higher health and safety standards or accountability, laws and penalties are often updated to match those expectations. The current state of WHS law demonstrates how seriously Australian legislators take WHS:

  • For more than a decade most Australian jurisdictions have had a definition of due diligence and a requirement that officers (meaning more than the board, CEO and company secretary) exercise due diligence to ensure the company complies with its legal WHS obligations.
  • There’s now a definition of corporate culture in one jurisdiction and provisions regarding the attribution of conduct of workers and agents to the body corporate in all jurisdictions.
  • Each state and territory have an industrial manslaughter offence, meaning officers (or senior officers in Queensland) face maximum penalties of at least 20 years in prison if their conduct causes a death. The conduct categories vary by jurisdiction, including negligence, gross negligence, recklessness and knowledge of likely harm or death.

There has been a lot of commentary on recent cases highlighting the officer duties in larger organisations. Some of this commentary suggests that there is now a clearer picture of the requirements of an officer. Is this really the case? Sure, the consequence in at least one case was “new” but in the context of the increasing focus on WHS, is what was expected to meet their personal due diligence obligation really “new”?

When we boil it all down, one of the key issues is curiosity—whether it exists or is lacking. Officers must take timely action when information requires it. Being a passive recipient of information is not enough. Due diligence includes verifying other elements of the legislative requirements and acquiring and maintaining WHS knowledge. This involves both internal and external considerations.

How you exercise due diligence will depend on the type of officer you are – executive director, non-executive director, company secretary, executive or senior level manager, or someone operating in the “shades of grey” of the Corporations Act’s definition of “officer”. It also depends on the type of business – white collar, blue collar, static or dynamic workplace. Its going to depend on the business’ nuances, the level of oversight of operational persons or processes, and that officer’s “day job”, amongst a myriad of other factors. The questions you ask will vary, but the need to ask questions is not new. Depending on who you are, such questions might include “what are the health and safety implications of this?” or “how does this process consider safety?”

If you’re an officer who is curious about WHS, keep it up. If you’re not, or not as much as you should be, get curious. The consequences of not doing so have never been higher with increasing financial penalties and in some circumstances, time in prison. Years down the track, in a clinical and forensic court room, in front of the family of a deceased or seriously injured worker, there aren’t many good sounding reasons you can’t be curious. Once you are curious, act on the information provided to you – not doing so could be worse than not being curious.

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On 20 March, we published the first in this two-part series about the legal developments being watched closely by resource sector businesses in 2025 that could significantly impact their labour strategies. With margins continuing to be squeezed due to the costs of non-labour inputs continuing to rise, labour cost will come under pressure as 2025 rolls on.

In that blog, we looked at two strategies used by employers facing these pressures – the use labour hire and workforce reductions. Relevant to those strategies, our blog examined the BHP / OS Production / OS Maintenance case and its potential impacts on the same job, same pay jurisdiction and a case before the High Court dealing with whether an employer must look to reduce contractor workforce numbers before implementing direct employee redundancies.

Occasionally, in times of cost constraint, bargaining with a workforce can be utilised to achieve commercial outcomes that allow an employer to stabilise its labour cost while maintaining its workforce. This is likely to be more achievable when negotiating as a single employer as opposed to with multiple other employers, where the highest common outcomes can be difficult to avoid.

Earlier this month, the Full Court of the Federal Court heard a challenge against a Fair Work Commission decision in which three resources companies – Whitehaven Coal, Peabody Energy and Ulan Coal Mines, a subsidiary of Glencore – were ordered to engage in a joint bargaining process for a pay deal covering Deputies, Undermanagers, Shift Engineers and Control Room Operators (together, Statutory Staff Positions) at their underground mines in New South Wales. The companies argue that the Commission was wrong to find that they had “clearly identifiable common interests” and that their operations and business activities were “reasonably comparable.” Both of these findings are necessary for the Commission to order multi-employer bargaining (formally known as “single interest employer” bargaining).

The Commission found that the companies had “clearly identifiable common interests” due to a range of factors. These included a common approach to employment terms and conditions, including a desire to negotiate individually with the Statutory Staff Positions on annual remuneration, performance incentives, and shift work rosters and their location in New South Wales, which means that they are subject to the same health and safety regulations and regulator.

The Commission also found that the operations and business activities of the companies were “reasonably comparable” because they all:

  • operate underground coal mines in New South Wales (despite being located in different regions and on different coal seams) and face common industry regulation
  • compete in international export thermal coal markets, and primarily sell to customers in Asia
  • share similar job descriptions for the Statutory Staff Positions, which are mandated by mining safety legislation or perform essential functions
  • based in regional inland areas of New South Wales, where they encounter difficulties in attracting and retaining staff, and
  • use longwall mining methods.

Despite the commonalities identified by the Commission, these companies argue that separate bargaining would better address the unique needs of their individual business operations, including differing geological challenges, anticipated life of mine and mine operating margin. One of the companies made the seemingly very sensible submission that, if the differences between the employers are significant enough that separate negotiations around wages and conditions were likely even in a multi-employer bargaining situation, bargaining may not proceed efficiently (which is a central object of the Fair Work Act 2009 (Cth)). Although the Commission mentioned this submission, it did not specifically engage with it in its decision.

Employers are concerned that the necessary degree of “commonality” required by the Commission was no more or less than exists between many competitive businesses in the resources and other sectors, potentially leading to unions pursuing many more multi-employer agreements. For instance, resources companies are worried that there may be little to distinguish this case from other cohorts, such as similar statutory roles in Queensland coal mines.

The outcome of this case is likely to determine whether and how far multi-employer bargaining will spread beyond its initial take-up. If the Federal Court upholds the Commission’s decision, it could lead to a new push by unions for more multi-employer agreements, impacting how companies manage their labour cost and workforce productivity.

Employers, particularly those in the resources sector, remain concerned that multi-employer bargaining will inevitably lead to ‘highest common denominator’ outcomes, where the labour cost of all affected employers is increased to the high-water mark of those businesses. This is accentuated by the possibility that unions can seek other employers, not involved in the actual bargaining process for the multi-employer agreement, to be effectively “roped into” the coverage of the multi-employer agreement once it is made by the Commission.

The bargaining will almost certainly involve less concentration on measures to improve workforce productivity at the individual enterprises at the bargaining table and concentrate more on broader, industry or sector-wide conditions. In this sense, multi-employer bargaining will look less like the enterprise bargaining initially introduced in the early 1990s which was designed to address and effect productivity improvements based on the specific needs of individual workplaces and more like the making of industry-wide safety net awards.

If a business is already covered by, or it has agreed with a union to bargain for, an in-term single enterprise agreement, the Commission is unable to order it to bargain for a multi-employer agreement. Therefore, having an in-term single enterprise agreement offers some protection (until its expiry) from being required to bargain with your competitors. This option at least allows a business to negotiate specifically for terms and conditions which suit it and its workforce, rather than bargaining with its competitors for conditions that will apply across multiple enterprises experiencing different commercial constraints. On the downside, as my colleagues at Seyfarth, Chris Gardner and Michael Tamvakologos opined in their blog post Multi-employer bargaining under “Secure Jobs, Better Pay” – 10 implications for employer in December 2022, unions may seek a premium from employers for making a single enterprise agreement.

The Commission is also unable to order a business to bargain for a multi-employer agreement if a majority of its employees who would be covered by the proposed multi-employer agreement do not want to be covered by the multi-employer agreement. This emphasises the primary importance of maintaining the best possible relationship with employees and ensuring – to the extent possible – that the business is a trusted “source of truth” on employment conditions and benefits. The alternative, a union becoming that source of truth, is a sure pathway to bargaining with one’s competitors for a multi-employer agreement.

Whatever the outcome of this case, resources sector employers will be at the forefront of the bedding down of the recent workplace reforms and will need to stay on top of developments to ensure they can protect their businesses and obtain any possible competitive advantage in the labour market.

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Conducting workplace investigations into sexual harassment claims is challenging, and especially so across borders. Multinational organisations that implement robust, cross border investigation procedures can significantly lower their risk of facing disputes and legal actions.

In this webinar, Seyfarth partners will explore managing sexual harassment claims in the Asia Pacific region, where diverse legal landscapes and cultural norms further complicate cross border investigations. Topics include:

  1. Regional nuances: Key similarities, differences, and risks in jurisdictions such as Australia, Hong Kong, Singapore, and the People’s Republic of China.
  2. Employee protections and compliance obligations: The heightened risks of non-compliance and critical employee protections in APAC jurisdictions.
  3. Best practices for multinational employers: Steps to ensure fair and legally compliant investigations.
  4. Case studies: Real-world examples of effective cross-border investigation strategies in the Asia Pacific region.

This webinar is ideal for HR Directors, Employment Counsel, General Counsel, and professionals responsible for managing cross-border workforces, including in Asia or Australia.

Speakers
This panel brings together Seyfarth lawyers with extensive experience in handling cross-border employment law, workplace investigations, compliance, and risk management challenges across the APAC region and globally.

Our speakers are:

Matthew Banham, Partner, White Collar Defense & Litigation

Kathryn Weaver, Partner, International Employment Law

Erin Hawthorne, Partner, Employment and Industrial Relations

Rebecca Lim, Counsel, International Employment Law

Leon Mao, Counsel, International Employment Law

This session is being pre-recorded and a link to the recording will be distributed to all who register.

Register here for the webinar and to secure your recording.

Employers in the resources sector are watchful of legal developments in 2025 that could significantly impact their labour strategies, particularly their ability to engage, utilise and remove contractors. With non-labour costs rising and commodity prices remaining below their 2022 peaks, companies are under pressure to find ways to reduce labour costs.

In this two-part series, I will look at three cases before the Australian courts and Fair Work Commission, which have the potential to significantly impact how employers in the resources sector navigate their labour arrangements.

Labour hire and the ‘same job, same pay’ conundrum

One common strategy to reduce labour costs and maximise flexibility has been to replace higher-cost workforces, in full or in part, with labour hire. However, this approach has become more challenging due to a number of regulated labour hire arrangement orders being made in the coal mining sector. These orders, known as ‘same job, same pay’ orders, require labour hire employers to pay employees the same rates as the employees of the host and generally lead to increased labour costs.

The Fair Work Commission is set to decide whether to issue same job, same pay orders requiring BHP group companies – OS MCAP Pty Ltd (OS Production) and OS ACPM Pty Ltd (OS Maintenance) – to pay their employees the same rates as those paid by their client, BHP Mitsubishi Alliance (BMA), at several coal mines in Queensland. The Mining and Energy Union argues that OS Production and OS Maintenance supply employees to BHP to perform work for it, while BHP and the OS entities claim they provide a service, not just labour. This distinction is crucial because if the Commission rules that they are providing a service, it cannot issue a ‘same job, same pay’ order. 

It is hoped that this case will provide some guidance on the distinction between a provider of labour and a provider of services. A broad interpretation of a ‘provider of labour’ in this case could result in unions seeking further same job, same pay orders against companies traditionally seen as service providers. This could have ramifications for any service provider regardless of sector.

Reducing contractors before direct employee redundancies

As margins tighten, companies may need to reduce direct employee numbers, potentially due to changes in rosters or operational fleet reductions. Employers are keenly watching a High Court case involving Helensburgh Coal Pty Ltd, which is appealing a decision of the Full Court of the Federal Court that it could not use the genuine redundancy defense in unfair dismissal claims because it had not reduced its reliance on contractors before terminating direct employees.

The genuine redundancy defence is not available if it is reasonable to redeploy employees. The Full Court found that the Fair Work Commission should consider whether an employer could free up work for redeployment by reducing reliance on contractors. Helensburgh argues that the Commission should not have the authority to effectively require employers to terminate existing staffing arrangements to free up work for otherwise redundant employees.

So, what impact will this case potentially have on employers? Industries that rely heavily on contractor workforces, such as the resources sector, are concerned that they may be required to cut contractor numbers before reducing their own workforce, even if contractors provide a more commercial solution. The High Court’s decision will provide guidance on whether businesses must direct their suppliers to reduce their headcounts before making their own employees redundant.

The outcomes of these cases will have significant implications for resource sector employers. They will provide clarity on the distinction between labour and service providers and whether companies must reduce contractor numbers before making direct employee redundancies. As these decisions unfold, employers will need to adapt their labour strategies to comply with new regulatory environment to maintain economic viability.

In part 2, I’ll focus on a recent Fair Work Commission case which may reshape how employers approach enterprise bargaining.

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The landscape of transgender employment laws is evolving globally, with various jurisdictions adopting laws that ensure inclusivity and non-discrimination in the workplace. This area is one of the most complex issues in employment law systems and has generated much controversy. Notwithstanding this, many global companies seek to support and promote the interests of women regardless of their gender identity or expression. This commitment aligns with the broader international trend of recognising the rights of transgender individuals in the workplace. Transgender rights have been part of broader DEI initiatives for some time and are protected by law in some countries. There is an emerging body of law considering how these transgender legal protections interact with existing legal protections based on sex or gender.

In this blog we consider, in the international context, a recent decision of the Federal Court of Australia that has been noticed around the world. We have focussed on selective jurisdictions for the purposes of comparison, but this issue is much wider than the limited number of countries referred to in this blog.

The Australian case

In Australia, the recent decision of Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 looked at the removal of a transgender woman (Ms Tickle) from a female-only networking and dating app known as Giggle because on a visual inspection, someone responsible for administration of the app, had determined that she was a man (and therefore ineligible to participate).

Ms Tickle is a transgender woman whose female sex is recognised by an official updated Queensland birth certificate.

The respondents’ conduct was found to be unlawful gender identity discrimination in the provision of goods and services, on the basis that:

  • the app was imposing a requirement that users appeared to be (cisgendered) women, based on an examination of their profile photo
  • while this requirement applied equally to everyone, it had the effect of disadvantaging transgender women, and
  • in the circumstances, the requirement was not reasonable.

The respondents argued that Ms Tickle was believed to be a male, meaning there was no discrimination because of gender identity, and that Ms Tickle was denied access to the App based on her sex at birth, which they considered to be male. They also argued that the Giggle app should be considered as a ‘special measure’ to achieve substantive equality between men and women.

The Court rejected these arguments:

  • confirming prior cases that had found that a person’s sex is changeable and “sex can refer to a person being male, female, or another non-binary status”
  • determining that the respondents had engaged in conduct in breach of the clear Parliamentary intent to prohibit discrimination on the ground of gender identity in the provision of goods and services
  • commenting that “It simply cannot be that a special measure of advancing substantive equality between men and women provides any shield from gender identity discrimination.”

The respondents were ordered to pay $10,000 plus Ms. Tickle’s legal costs. Their evidence in the case was that they had also made the decision to close down the Giggle app.

Australia

Under the Sex Discrimination Act 1984, gender identity has been a legally protected ground since 2013. However, the Australian Human Rights Commission has described this as the first case of its kind to go before the court.

This case highlights the need to be cautious in Australia before implementing any measures intended to advance the interests of a group based on sex or gender, if such measures exclude persons with different gender identities. Unless the measure (and discriminatory impact) can be shown to be reasonable or come within a ‘special measures’ exemption to remedy certain types of existing sex-based inequalities, then there is a real risk this would be unlawful.

United States

In the United States, the legal position on transgender protection is more nuanced. National (Federal) law bars discrimination based on sex under the Civil Rights Act of 1964. The United States Supreme Court has determined that this prohibition in extant law precludes drawing a distinction between cisgender and transgender individuals in the employment context. However, Courts continue to grapple with how this ruling applies to similarly worded prohibitions in education and public accommodation law, as well as to analyse its meaning under the United States Constitution. The Supreme Court’s reasoning in the employment context hinges on the rationale that treating a transgender female differently from a cisgender female is discriminatory sex stereotyping. However, in the employment context there remain many unanswered legal questions in the United States including balancing the interests of religiously motivated private employers and employees with the interests of transgender and non-binary individuals. The Courts in the United States have not (at this stage) adopted the Australian position that measures to advance a group based on sex or gender cannot exclude persons with different gender identities.

United Kingdom

In the United Kingdom, the legal meaning of ‘sex’ is unclear due to a conflict between the definitions of ‘sex’ under two pieces of legislation: the Equality Act (“EA”) 2010 (the UK’s anti-discrimination legislation) and the Gender Recognition Act (“GRA”) 2004 (the UK’s gender change legislation). Under the GRA, if a person has a gender recognition certificate (“GRC”), the affirmed gender in that certificate is their gender for all purposes and is their ‘legal’ sex; whilst under the EA ‘sex’ (which is a characteristic that is protected from discrimination) is not clearly defined (i.e., it is ‘a reference to a man or a woman’).

This conflict has resulted in particularly prominent legal challenges in Scotland as to whether ‘sex’ for the purposes of the EA means biological sex or recognises the legal sex of people with a GRC. This conflict will take the national stage in November 2024 when the UK’s Supreme Court hears For Women Scotland’s appeal of a judicial review decision on the legal definition of the word ‘woman’ (this litigation was first lodged in the context of the Scottish government’s definition of ‘woman’ in 2018 legislation on gender representation on public boards). The UK Supreme Court’s decision should provide clarity on the extent to which sex under the EA is defined as biological or legal.

Both pieces of legislation have also become the subject of increased political polarisation. In April 2023, the UK’s Equality and Human Rights Commission recommended to the Minister for Women and Equalities that the government carefully consider redefining sex in the EA as biological sex; it said that this would bring greater legal clarity in eight areas (including single sex and separate sex spaces), but acknowledged that doing so would create ambiguity and potential disadvantage in three other areas.

In June 2024 (before its defeat in the General Election), the Conservative Party pledged to re-write the EA so that it defined ‘sex’ as biological sex, but a Labour frontbench MP said that guidance (rather than amending the EA) would be sufficient for clarifying the uncertainty here. In 2023, the UK’s Conservative government also rather controversially blocked the Scottish parliament from enacting legislation that would have made the Scottish process for obtaining a GRC easier. Conversely, the Labour Party’s 2024 election manifesto pledged to make it procedurally easier for transgender people to legally change their identity. We must wait to see how the Labour Party’s election to government in July 2024 impacts the ongoing discourse on this matter.

From an employment perspective, UK employment tribunals have found that holding gender critical beliefs (i.e., the belief that sex is immutable and biological) can be a protected philosophical belief capable of protection from discrimination under the EA. However, the manifestation of such beliefs in behaviour might not be protected depending on what those behaviours are and how they impact on the legal rights of others not to be discriminated against on the basis of their sex or gender reassignment.

Hong Kong

Legal developments around gender identity in Hong Kong have largely been premised on constitutional rights enshrined in the Basic Law (for example, the right to marry and the right to privacy), rather than any express prohibition of gender identity discrimination. Gender identity is not a protected characteristic under Hong Kong’s anti-discrimination legislative framework, which has only four ordinances covering sex, disability, race and family status.

The progression of gender identity rights in Hong Kong has been gradual and piecemeal, with limited case law to rely on. In 2013, a Court of Final Appeal case ruled that the interpretation of the Marriage Ordinance, which treats a transgender female (having undergone full sex reassignment surgery) as a “man”, was a violation of her constitutional right to marry by preventing her from marrying under her acquired gender. Following this, in 2017, the Hong Kong government set up an Inter-departmental Working Group on Gender Recognition to consider making legislative changes to reform transgender rights in Hong Kong. However, there has been little progress on this, which may be because gender identity remains a very divisive topic in Hong Kong. In February last year came a significant development in gender identity rights when the Court of Final Appeal ruled that the policy of barring transgender people from changing their gender markers shown on ID cards unless they underwent full sex reassignment surgery was unconstitutional because it violates the right to privacy.

Italy

In Italy, transgender persons have several legal protections and rights. Since 1982, transgender people in Italy have been allowed to change their legal gender. This process involves both medical and legal procedures.

Additionally, discrimination based on gender identity in employment has been prohibited in Italy since 2003. This means that employers cannot legally discriminate against transgender individuals in hiring, promotion, or any other aspect of employment.

Discrimination based on gender identity is prohibited in various contexts, including employment and public advertisement. The Italian Constitutional Court has ruled that non-binary individuals’ rights are also protected under the principles of social identity, equality, and the right to health as guaranteed by the Italian Constitution.

Whilst these legal protections are significant, Italy still faces challenges in achieving full equality for transgender individuals, particularly in areas like healthcare access and social acceptance. Many transgender individuals in Italy still face challenges in the workplace. Surveys have shown that a significant number of LGBTQIA+ workers, including transgender individuals, feel that their careers have been negatively impacted by discrimination.

The traditional legal approach of balancing competing interests creates particular difficulties when dealing with issues like the dignity of people or fundamental philosophical beliefs. Courts in every country are going to have to decide what of these interests are the most important.

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