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The rapid advancement of generative artificial intelligence has led to a troubling increase in deepfake image-based abuse (Deepfake I-BA), a form of gendered cyber violence in which realistic, non-consensual sexual content is created using AI technology. Victims, most often women, are digitally manipulated into explicit content without their knowledge or consent.

Until recently, Australia lacked a criminal law framework to directly address this harm. This changed in August 2024 with the introduction of the Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth), which amended the Criminal Code Act 1995 (Cth) to introduce criminal penalties for the creation and distribution of deepfake sexual material. This development, while a significant step forward, highlights the complex interplay between technological evolution and the limitations of existing regulatory frameworks.

Prior to the reform, Australia’s regulatory response relied primarily on civil penalties under the Online Safety Act 2021 (Cth), enforced by the eSafety Commissioner. While the Commissioner could compel internet service providers (ISPs) and content hosts to remove harmful material, enforcement was slow, limited by jurisdictional barriers, and lacking the punitive deterrence necessary to prevent repeat offending. The maximum civil penalty, $156,500, was often insufficient in cases of widespread or repeat dissemination.

The criminalisation of Deepfake I-BA represents a landmark legal development. Under new provisions, individuals who use a carriage service to transmit deepfake sexual material without consent face up to six years’ imprisonment. Aggravating circumstances, such as prior removal notices from the eSafety Commissioner or direct involvement in the creation of the content, can increase the maximum penalty to seven years. Importantly, the legislation adopts a consent-based model, aligning with broader reforms in image-based abuse law.

This reform followed high-profile incidents such as the Bacchus Marsh Grammar scandal, in which a school student allegedly distributed AI-generated explicit images of over 50 female students. This case shocked the public and reinforced longstanding academic concerns that the absence of direct criminal penalties would embolden perpetrators. The eSafety Commissioner reported a 550% increase in reports of Deepfake I-BA since 2019, with 99% of victims being women.

Despite this progress, critical gaps remain in Australia’s regulatory regime—particularly around attribution and intermediary liability. Identifying the originator of deepfake content is notoriously difficult, especially when perpetrators use offshore servers, encrypted platforms, or anonymous accounts. In the recent case of eSafety Commissioner v Rotondo [2023] FCA 1296, even after civil penalties were imposed, the perpetrator simply refused to comply with takedown orders.

Moreover, Australia currently does not limit the liability of internet intermediaries such as platforms and ISPs. This contrasts with the United States, where Section 230 of the Communications Decency Act provides broad immunity for online platforms in respect of third-party content. While Australia’s more expansive liability model can incentivise platform moderation, it also creates legal uncertainty, particularly as platforms argue for protections if they implement content complaints systems and take reasonable preventative steps.

The unresolved question is whether Australia should introduce clearer statutory obligations for intermediaries. This might include mandatory monitoring, reporting thresholds, or proactive takedown systems for AI-generated abuse. Alternatively, the government could adopt a tiered model of liability, where liability is limited if intermediaries demonstrate genuine and ongoing efforts to prevent harm.

There are useful analogies in Australian law. After the 2019 Christchurch terrorist attack, the government passed the Criminal Code Amendment (Sharing of Abhorrent Violent Material) Act 2019 (Cth), imposing criminal penalties on platforms for failing to remove extremist content. This led to unprecedented proactive moderation by platforms, including the temporary blocking of entire websites like LiveLeak. Scholars such as Gacutan and Selvadurai argue that non-limited liability frameworks encourage platforms to take real responsibility for harmful content.

However, any expansion of intermediary liability must be balanced against the risk of overregulation, platform censorship, and the stifling of internet freedoms. Traditionalists caution against forcing platforms to regulate the entire internet, and the technical difficulty of filtering all user-generated content remains a significant concern.

Ultimately, the criminalisation of Deepfake I-BA is an important turning point. It sends a clear message that technology-facilitated abuse is no longer beyond the reach of the law. But to ensure meaningful protection for victims, further reform is essential. This includes:

–        Strengthening intermediary liability frameworks to encourage proactive moderation

–        Enhancing cross-border enforcement mechanisms and attribution tools

–        Increasing funding and resourcing for the eSafety Commissioner

–        Improving victim support pathways and education campaigns

Deepfake I-BA is a symptom of a wider issue: the gendered risks of emerging technologies. Without a coordinated legal, technological, and social response, the law will continue to play catch-up. Australia’s reforms are commendable, but more must be done to ensure that victims are not only protected—but empowered.

 Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

The COVID-19 pandemic dramatically reshaped expectations about work in Australia, with many employees now demanding flexible working arrangements as a matter of course. However, under the current provisions of the Fair Work Act 2009 (Cth) (FWA), particularly section 65, access to flexible work remains limited to a narrow cohort of employees.

While this section provides a statutory right to request flexible working arrangements, eligibility is tightly constrained. It applies to parents of school-aged children, carers recognised under the Carer Recognition Act 2010, individuals with a disability, people aged over 55, and those experiencing or supporting someone affected by domestic or family violence. Even for those who qualify, the right is only a right to request, not a right to receive, flexible work.

Under s 65(2), an employee must have twelve months’ continuous service before they can make a request. Employers must respond within 21 days but may refuse on “reasonable business grounds,” which include cost, capacity, impracticality, and adverse impacts on productivity or customer service. These criteria offer broad discretion to employers and can be used to reject valid requests without real recourse for employees.

During recent facilitated discussions between unions and employer groups, convened by the Minister for Workplace Relations, a range of reform proposals were put forward. Union representatives advocated for a broader and more inclusive scope of s 65, reflecting the lived experiences of employees not currently captured under the statute. These include people needing flexibility for informal care duties, psychological appointments, medical conditions, or tertiary study commitments.

From the employer side, concerns centred on administrative burden, especially for small businesses. A representative from a rural law firm argued that an expanded s 65 would overwhelm existing HR resources, particularly in environments where human resources functions are handled by senior staff or office managers. The issue is real; however, these challenges are not insurmountable, and certainly not sufficient to justify maintaining the status quo.

Employers also raised issues around employee equity and workplace morale. There is a risk, they argued, that staff who don’t qualify for flexible work could become disenfranchised if they see colleagues receiving preferential treatment. While this concern is valid, it points more to a need for clear, transparent frameworks for evaluating flexible work requests, rather than limiting access altogether.

Another frequently raised concern was the potential impact on workplace culture and team-based productivity. Employers highlighted the value of in-person collaboration, citing studies that suggest physical presence boosts engagement and cohesion. However, the pandemic demonstrated that hybrid and remote work models can be highly effective, especially when flexibility is implemented thoughtfully. In fact, research indicates that flexible working arrangements are often linked to increased productivity, improved wellbeing, and stronger employee retention.

Legal precedents offer valuable insight into the implications of a narrow s 65. In AMWU v Mildura City Council [2012], the Commission upheld the employer’s refusal to accommodate a flexible work request due to logistical difficulties and inadequate supervision. Yet, in Fyfe v Ambulance Victoria [2023], the employer’s failure to properly engage with a flexible work request related to childcare responsibilities was deemed unlawful. These cases highlight the need for greater clarity and consistency in how s 65 is applied.

Ultimately, any reform must strike a balance between employer discretion and employee accessibility. Suggestions for compromise include reducing or removing the twelve-month service threshold, simplifying application procedures, and developing national best practice guidelines for assessing flexible work requests. These measures would not only empower more employees to request flexibility but would also provide employers with a structured approach to handling such requests fairly and transparently.

Expanding s 65 is not about undermining business; it’s about recognising the changing nature of modern work. When implemented effectively, flexible working arrangements can enhance productivity, support employee wellbeing, and ultimately lead to stronger organisational outcomes. If Australia is serious about fostering inclusive, future-ready workplaces, it must reform the law to better reflect the lived realities of its workforce.

Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

Australia prides itself on the principle of a “fair go”, a concept deeply engrained in our national identity and reflected in our legislative frameworks that promote equality and protect against discrimination. Yet, when it comes to age, the legal protection offered under the Age Discrimination Act 2004 (Cth) (ADA) fall significantly short of this ideal.

Unlike the Racial Discrimination Act 1975 (Cth) or the Sex Discrimination Act 1984 (Cth), the ADA does not impose any positive duties on employers. It was introduced not in response to a civil rights movement or a shift in public consciousness, but rather as a policy reaction to demographic trends, specifically, an ageing population and rising intergenerational conflict in the labour market. This origin is reflected in the Act’s design. It seeks to encourage additional change, rather than mandate meaningful legal obligations.

The Ada’s comparator test, which requires complainants to prove that they were treated less favourably than a person of a different age in similar circumstances is widely acknowledged as ill-suited to age-based discrimination. Age is inherently dynamic and fluid, and the existence of a true comparator is often impossible to establish. In contrast, characteristics such as race and sex are fixed and binary, making comparator analysis more workable in these contexts.

Further issues include the ADA’s short 21-day limitation period to bring forward a claim, acting as a procedural barrier for many potential complainants. Particularly older Australians and young people who may lack the resources or confidence to seek legal advice quickly. The Act also contains excessive exemptions, such as those relating to “inherent job requirements”, which provide employers with broad discretion to lawfully justify age-based exclusion.

These structural shortcomings help explain why Australia has only seen one successful federal litigation under the ADA. That case, Guiterrez v MUR Shipping Australia Pty Ltd [2023] FCA 399, highlighted the deficiencies in the Act’s enforcement mechanism. The relatively low damages awarded (albeit increased on appeal) failed to deliver meaningful redress or deterrence.

To address these issues, a comprehensive reform agenda is required. First, the comparator test should be abolished in favour of a detriment-based test, which focuses on the actual disadvantage suffered by the complainant. This would provide a more realistic and accessible avenue for redress. Second, the introduction of positive duties, akin to those in racial and sex discrimination law, would shift the burden onto employers and institutions to prevent discrimination before it occurs.

Additionally, higher penalties and removal of overly broad exemptions are critical if the ADA is to have any meaningful deterrent effect. Reform should also include an extension of the limitation period and better access to the Australian Human Rights Commission for complainants, particularly those facing structural disadvantages.

Ultimately, if Australia is serious about tackling age discrimination, it must move beyond symbolic gestures and implement laws that reflect the reality of discrimination in practice. Attitudinal change is important, but without legal force behind it, change will remain superficial. A robust, modernised ABA would not only protect individuals across the age spectrum but would also reflect our society’s professed commitment to fairness, inclusion, and equal opportunity.

Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

From 9 November 2023, every unfair term hidden in a standard-form contract became illegal, and the price of non-compliance is eye-watering. Courts can now impose penalties of up to $50 million per unfair term, or three times the benefit gained, or 30 % of a company’s turnover during the breach period, whichever is higher.

Why the law changed

The original unfair contract terms (UCT) regime, introduced in 2010, let courts void dodgy clauses but left little deterrent for repeat offenders. Parliament has closed that loophole: by making unfair terms unlawful, regulators, and aggrieved customers, finally have teeth. The ACCC has already urged businesses to “remove or amend any unfair terms before new penalties take effect.”

Who is now protected?

A “small business contract” now covers any deal where at least one party:

–        Employs fewer than 100 people (up from 20); or

–        Had under $10 million turnover in the previous financial year,

provided the upfront price is $5 million or less. Thousands of suppliers, franchisees and licensees that once fell outside the regime are suddenly in scope.

Some easy to spot unfair terms

–        Automatic renewals with no straightforward opt-out

–        Unilateral price hikes or service downgrades

–        One-sided termination rights

–        Unlimited liability exclusions

If a term creates a “significant imbalance”, isn’t “reasonably necessary” to protect legitimate interests, and would harm the other party if enforced, it is likely unfair.

Penalties in simple terms

Offender:    Maximum Penalty Imposed per Unfair Term

Corporation: Greater of: $50 million; 3x benefit obtained; or 30% of adjusted turnover.

Individual:    $2.5 million

Each dodgy clause is a separate contravention, so a contract with six unfair provisions could expose a business to $300 million in fines.

How to ensure you are compliant

1.      Identify your standard-form contracts: T&C’s, service agreements, franchise packs, employment letters, etc.

2.     Run the “could we, would we” test: If you hold a unilateral power you would never reasonably exercise, the clause is probably unnecessary.

3.     Rewrite or justify: Remove the term, or document why it is genuinely needed and proportionate.

4.     Document negotiations: A heavily negotiated contract is less likely to be classed as “standard form”.

5.     Engage in training: Give sales teams scripts that explain fair contract terms to customers.

6.     Schedule annual reviews: The new penalties apply to any contract entered into, renewed or varied after 9 November 2023.

Consequences beyond fines

An unfair term can still be declared void, leaving your agreement lopsided or unworkable. Worse, publicised court action can tank brand reputation and attract class actions.

Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

When a tragic workplace accident occurs, the legal and reputational stakes for directors can be immense, especially when prosecutors target individuals in senior leadership positions that are far removed from the day-to-day operations.

This is exactly what happened in Inspector James v Ryan (No 3) [2010] NSWIRComm 127, a high-profile prosecution under NSW Occupational Health and Safety Laws. We acted for Mr Justin Ryan and won the case, which shaped the limits of director liability in Australia.

The Allegations 

In July 2006, a worker at Dekorform Pty Ltd’s Milperra premises was tragically killed in a workplace incident involving a circular saw. Following an investigation, the WorkCover Authority of NSW prosecuted Dekorform for failing to ensure a safe workplace under section 8(1) of the Occupational Health and Safety Act 2000 (NSW) (OHS Act). 

Alongside the company, the prosecution brought charges against Mr Justin Ryan, arguing that he was a “director” of Dekorform and personally liable under section 26 of the same Act. This section argues that directors, or those involved in the management of a corporation, can be held individually responsible for a company’s breach of workplace safety duties unless they can show that they were either not in a position to influence the breach or had exercised due diligence to prevent it.

The Legal Question

At the heart of our case was the fundamental legal question: what does it mean to be a director under s26 of the OHS Act?

Prosecutors argued that Mr Ryan was either formally appointed, or was a de facto or shadow director, terms used to describe individuals who act like directors or influence corporate boards behind the scenes. 

Our team identified the broader implications where, if the Prosecution succeeded, it could open the door to criminal liability for countless executives across corporate groups, even those not directly involved in operational decisions.

Our Approach

Our role was to demonstrate separation from Mr Ryan’s senior role in the parent company, Alesco Corporation, from any directorship or managerial responsibility for Dekorform.

We demonstrated that: 

–        Mr Ryan was never validly appointed as director of Dekorform under its constitution, which required a formal notice of appointment by its holding company (Alesco). No such notice had been issued.

–        Even though he has signed several company documents and attended some business meetings, he did not “act in the position” of a director in a way that would satisfy the Corporations Act definitions of a de facto or shadow director.

–        Most importantly, he was not in a position to influence the company’s conduct, especially regarding workplace safety matters at a subsidiary multiple layers below his role of CEO of the parent company

The Outcome

The Industrial Court agreed. The charges against Mr Ryan were dismissed entirely. The Court found that he was:

–        Not a validly appointed director;

–        Not a de facto or shadow director;

–        Not in a position to influence Dekorform’s compliance with OHS duties; and

–        Not criminally liable under the OHS Act.

Costs were awarded in Mr Ryan’s favour.

Why it Matters

The case remains a key authority on the interpretation of director under workplace safety laws in NSW. It confirms that:

–        The term ‘director’ in section 26 of the OHS Act refers to a formally appointed director, not just anyone involved in management or senior leadership.

–        Senior executives in parent companies will not be liable for OHS breaches by subsidiaries unless they had a clear, demonstrated influence over the conduct in question.

–        De facto or shadow directorship must involve meaningful, consistent conduct, not isolated actions like signing documents or attending meetings.

–        Courts will not lightly extend criminal liability to individuals who lack operational control.

This interpretation provides reassurance for executives working within complex corporate structures, especially those overseeing multiple subsidiaries. It also emphasises the importance of maintaining clear corporate records and formal appointment procedures.

What does this mean?

This result reflects our firm’s deep expertise in corporate litigation, workplace regulation, or director liability. It also demonstrates our ability to mount successful, high-stakes defences in complex legal environmental, particularly where personal reputations and professional futures are on the line.

If you are a director, executive, or company owner navigating regulatory obligations, particularly in complex group structures, our team can assist with:

–        Structuring and documenting director appointments;

–        Managing regulatory risk and compliance policies;

–        Responding to investigations or prosecutions; and

–        Minimising exposure to personal liability.

Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

At Bilbie Faraday Harrison, we understand that property disputes are rarely just about land, they often involve heritage, history, and high stakes. That was certainly the case in Misthold Pty Ltd v NSW Historic Sites and Railway Heritage Company Pty Ltd (No 2) [2022] NSWSC 561, where we acted for the landowner in long-running, complex litigation.

Our client, Misthold Pty Ltd, successfully secured possession of its land after years of dispute with an organisation that had remained in occupation long after its right to do so had expired. The Supreme Court of New South Wales ruled decisively in Misthold’s granting an order for possession and awarding costs.

The Background

Misthold Pty Ltd is the registered proprietor of a large parcel of land in North Rothbury, New South Wales. For many years, the land was occupied by NSW Historic Sites and Railway Heritage Company Pty Ltd (NSW Historic Sites). 

Initially, the organisation held formal leases over portions of the land, including a 2007 Lease and a lease over a branch railway line. These leases were later surrendered under a Deed of Surrender executed in 2012, followed by a short-term lease over a smaller portion of land. That lease expired in 2014. Despite this, NSW Historic Sites remained on the property for nearly a decade without a valid lease, without paying rent, and without the consent of the landowner.

The Dispute

The central legal issue was simple but significant: did NSW Historic Sites have any ongoing legal or equitable right to occupy the land?

NSW Historic Sites advanced a number of arguments, including:

• That it had made improvements to the land;
• That it relied on alleged promises or representations to continue operating a railway museum;
• That Misthold had been unjustly enriched by its continued presence; and
• That the Surrender Deed was invalid due to unconscionability or duress.

However, none of these claims were accepted by the Court. The evidence did not support the existence of an ongoing lease, enforceable promise, or equitable entitlement.

Our Approach

Our team, led by Robert Faraday-Bensley, argued that: 

• All formal rights of occupation had expired;
• The Surrender Deed had been validly executed and ratified;
• There was no binding agreement to create a joint venture or museum in perpetuity;
• NSW Historic Sites had never transferred any heritage items to Misthold as contemplated by the Surrender Deed; and
• Misthold had taken appropriate steps to recover possession lawfully.

The Outcome

The Supreme Court of NSW found in favour of Misthold on all issues. Key findings included:

• NSW Historic Sites had no lease, licence, or equitable right to remain;
• The Surrender Deed and 2012 Lease were valid and enforceable;
• NSW Historic Sites’ occupation after the lease expiry was unauthorised;
• No estoppel, misrepresentation, or unconscionable conduct was made out; and
• Misthold was entitled to an immediate order for possession.

NSW Historic Sites’ cross-claims and defences were dismissed in full. The Court also ordered that NSW Historic Sites pay Misthold’s legal costs, recognising the burden imposed by the prolonged and unnecessary resistance to vacate the site.

Why this Case Matters

This case reinforces important principles for landowners:

• Informal use of land does not create legal rights without clear, documented agreements;
• Equitable doctrines such as estoppel and unconscionability will not assist parties who continue occupation without permission;
• Community groups, like any other entity, must formalise their occupation through valid legal instruments;
• Landowners are entitled to enforce their property rights, even against long-term or not-for-profit occupiers.

Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

The Fair Work Act 2009 (Cth) impose a high-income threshold to limit access to unfair dismissal remedies for some employees. As of 1 July 2025, that threshold is $183,100. 

But earning above that figure does not automatically disqualify someone from brining a claim in unfair dismissal. 

Bilbie Faraday Harrison recently represented a high-income earner in a claim for unfair dismissal and successfully argued that the high-income jurisdictional threshold did not bar a claim. Here is what employees and employers, should know prior to terminating an employee they construe as being a high income earner. 

What is the High Income Threshold? 

Under s 382(b)(iii) of the Fair Work Act, an employee is excluded from bringing an unfair dismissal claim if:

• They are not covered by a modern award,

• No enterprise agreement applies, and

• They earn more than $183,100 annually (as of 1 July 2025).

However, if any one of those three factors does not apply, the threshold may not be a jurisdictional bar to commencing an unfair dismissal claim. Each of those exceptions are examined in greater detail below. 

Exception 1: Coverage by a Modern Award 

Even if you earn above the threshold, you can bring a claim if you are covered by a modern award. 

In our recent case, we represented an individual with managerial duties and sector-specific expertise. Despite being above the high income threshold, the position descriptions contained in the higher levels of the relevant Award’s schedule applied, meaning that despite an Award not being identified in the relevant employment contract, the descriptors of applicable duties fell squarely within the scope of Award coverage. 

It is crucial to note that Award coverage is determined by an individual’s duties, not job titles, rates or pay, nor if an Award is mentioned in an employment agreement.

Exception 2: No Valid Guarantee of Annual Earnings 

Where no Award or Enterprise Agreement applies, employers must rely on a guarantee of annual earnings under ss 329 and 330 of the Fair Work Act to exclude an employee from protection from unfair dismissal provisions. 

Such guarantees must meet the following requirements: 

1) Be in writing;

2) Applying for at least 12 months;

3) Being accepted by the employee;

4) Being provided before the guaranteed period begins;

5) Being issued within 14 days of employment commencing or varying;

6) And being accompanied by a notice under s 328(3) advising the employee that a modern award no longer applies.

Relevance of what the Federal Court Said in Peabody Energy

The leading case on this issue is Association of Professional Engineers, Scientists and Managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945.

At [48], Wigney J made clear that a mere salary reference does not create a valid guarantee of annual earnings:

“It would be erroneous to read and construe the terms of s 330 of the Fair Work Act in isolation. Rather, s 330 must be read in the context of the entire scheme… which allows an employer to offer, and an employee to accept, a guarantee… with the result that a modern award that would otherwise apply… no longer applies. Importantly, the scheme includes protections to ensure that the guarantee is identifiable, enforceable and voluntarily accepted by the employee with knowledge that the result will be that the modern award will no longer apply to them. When read as a whole, it is readily apparent that a guarantee of annual earnings involves something more than a mere contractual promise to pay an employee a specified salary.”

In our case, the employer failed to meet these requirements. There was no written guarantee, no notice under s 328(3) FWA and the contract expressly disclaimed reliance on any undertakings. That meant the employee could still rely on award coverage and proceed with an unfair dismissal claim.

Understanding what counts as ‘Earnings’

Under s 332 of the Act, the calculation of “earnings” is nuanced. For instance:

Included:

• Base wages/salary

• Agreed non-monetary benefits (e.g. housing, car, technology)

• Private use of company vehicle (Zappia v Universal Music [2012])

• Guaranteed overtime (Cross v Bechtel [2015])

• Salary-sacrificed life insurance (Savannah Nickel Mines v Crowley [2016])

Excluded:

• Discretionary or uncertain bonuses (Jenny Craig v Margolina [2011])

• Non-guaranteed incentive payments or commissions

• Reimbursements or travel allowances (Davidson v Adecco [2012])

• Compulsory superannuation contributions

• Fringe benefit tax unless part of a genuine salary sacrifice (Rofin Australia v Newton [1997])

If an employer includes excluded or indeterminate components when assessing your salary, you may fall below the high income threshold, and be able to pursue an unfair dismissal claim. 

Other Commentary from the Fair Work Commission

The Fair Work Commission regularly deals with cases where the threshold is incorrectly applied by employers. Common errors include:

• Assuming any six-figure salary means exclusion;

• Failing to issue a valid written earnings guarantee;

• Ignoring Award coverage based on duties.

Relevant cases include:

• Jenny Craig v Margolina: discretionary bonuses excluded from earnings

• Dart v Trade Coast Investments:  personal use of tech devices counted

• Rofin v Newton: fringe benefit tax not included unless employee-directed

Concluding Thoughts: High Income ≠ Automatic Disqualification

Even if your income is above $183,100, you may still be entitled to pursue an Unfair Dismissal Claim, where: 

• A modern award applies to your duties;

• Your employer never issued a valid s 330 earnings guarantee;

• Or they miscalculated your earnings under s 332.

Get in Touch 

Bilbie Faraday Harrison regularly assists both employers and employees in dealing with appropriate termination processes and resulting disputes. If you are a high income earner who was recently terminated, we can assist. 

If you are an employer who is unsure about proper termination processes, whether your employees might be entitled to bring an unfair dismissal claim, or are unsure about the jurisdictional aspects of the Fair Work Commission, contact our team.  

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.

From 26 August 2024, a new workplace right entered Australian law, one that transforms how and when employers communicate with staff.

Under the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, the Right to Disconnect was introduced into the Fair Work Act 2009 (Cth) via the new section 333M.

The reform applies to non-small business employers, those with 15 or more employees, and aims to support work-life balance in an increasingly connected world. But for employers, especially those managing rosters, shift work or urgent issues, the changes raise important compliance questions.

What is the Right to Disconnect?

The new law gives employees the right to refuse to monitor, read, or respond to contact (or attempted contact) from their employer or a third party outside working hours, unless the refusal is unreasonable.

Employees now have legal backing to ignore work-related messages after hours, and employers are restricted from taking adverse action against them for doing so.

What s333M Actually Says:

The legislation breaks this right into two categories:

1. Contact from employers:
   Employees may refuse to engage with any contact outside working hours, regardless of the reason, unless their refusal is unreasonable.
2. Contact from third parties (e.g., clients, suppliers):
   Employees may refuse contact only if it relates to work and the refusal is not unreasonable.

Importantly, the law does not prohibit employers from initiating contact. But it does protect employees from adverse consequences (e.g., disciplinary action or threats to job security) if they choose not to respond.

As clarified in the second reading speech before parliament:

“The bill is not about limiting the ability of employers to communicate with their employees. It will promote a healthier work culture that empowers working people to screen their boss’s calls when they’re off the clock.”

What Makes a Refusal ‘Unreasonable’?

Section 333M(3) of the Fair Work Act outlines the criteria for assessing whether an employee’s refusal to respond is unreasonable. Factors include:

(a)   The reason for the contact

(b)   How the contact is made and the level of disruption

(c)   Whether the employee is compensated for being available or working extra hours

(d)  The employee’s role and level of responsibility

(e)  The employee’s personal circumstances

This means context is everything. For example:

• A senior manager might reasonably be expected to deal with urgent matters.
• A casual employee receiving a shift request at 9pm on their night off may reasonably ignore it.

Practical Guidance for Employers

We’re already fielding questions like:

“Can I contact someone to fill a shift after hours?”

The answer is yes, however, that employee is now entitled to ignore the contact without penalty, and you must not take adverse action (e.g., pressure, discipline, retaliation) if they do not respond.

In time, as test cases make their way through the Fair Work Commission more definitive guidance will emerge.

Key Takeaways

• Employers can still contact employees—but employees have a right to not respond.
• No adverse action may be taken against employees who reasonably exercise this right.
• What’s “reasonable” depends on the employee’s role, compensation, and personal context.
• Internal policies may need updating to reflect the new regime.

At Bilbie Faraday Harrison, we regularly assist employers with navigating changes to workplace laws, including compliance with the new Right to Disconnect provisions. Whether you’re reviewing after-hours communication protocols, updating internal policies, or managing shift coverage concerns, we can provide practical, timely advice.

If you’re unsure how these new obligations apply to your business or would like help minimising risk while maintaining operational flexibility, please don’t hesitate to contact our team. Bilbie Faraday Harrison offers clear, practical advice across a broad range of legal issues. If you need assistance or would like to discuss your situation with our team, get in touch, we’re here to help.

The information provided on this website is intended for general informational purposes only. It does not constitute legal advice and should not be relied upon as a substitute for professional legal consultation. We do not accept any liability for loss or damage arising from reliance on the material contained on this site.