Author: Amy Zhang
The regulatory landscape for employers continued to change significantly in 2025, driven by emboldened Unions and a raft of election promises from the Albanese government. As legislators and regulators struggle to keep up with an increasingly casualised and insecure workforce, and governments continue to focus on mental health in the workplace, sexual harassment reform, and the looming threat and opportunity of AI, we look forward to some of the changes we know are coming, as well as some anticipated changes, and share our key insights for HR professionals and in-house Counsel to ensure employers are ready for, and indeed ahead of, the changes.
Key issues include:
- Review of National Employment Standards (NES), potential new award and working from home entitlements
- Non-disclosure agreements restricted in sexual harassment settlements
- Amendments to the Privacy Act 1988: Disclosure of Automated Decision-Making
- Changes to superannuation payment timing
- Ban on non-compete clauses and potential restrictions on non-solicitation clauses
- Changes to Workplace Health and Safety: New notification requirements and Protecting workers against AI and digital work
1. National Employment Standards under review after 16 years, and potential new award and working from home entitlements
The House of Representatives Standing Committee on Employment, Workplace Relations, Skills and Training (the Committee) has launched an inquiry into the operation and adequacy of the National Employment Standards (NES) under the Fair Work Act, and is inviting written submissions by Friday, 27 February 2026.
The NES set out guaranteed minimum terms and conditions for employees, setting a standard for all employment contracts and enterprise agreements (EAs) which must offer equal or better benefits (ie. they must pass the “better off overall test” or BOOT).
The terms of reference for the review asks whether the NES is still fit for purpose, considering the changing nature of work in the 16 years since its introduction. The NES was designed primarily for full and part-time employees and the Australian Council for Trade Unions has called for the NES to be modernised to cover freelancers and gig workers, and prepare for job losses caused by the uptake of artificial intelligence. The Australian Services Union has submitted that as emerging technologies move people increasingly into part-time and insecure work, the NES provisions for redundancy and leave are no longer appropriate for the modern workforce.
The inquiry is also focusing on the ways the NES affects different employees, and the Committee has called particularly for submissions from women, workers over 55, young workers, First Nations workers, and people with disability. The inquiry will consider additional entitlements that may need to be inserted into the NES, examples being menstrual leave or leave to deal with fertility issues.
It is likely that as a result of this review, changes may be made to the entitlements forming the NES, including changes to the number of existing entitlements and the addition of new entitlements.
The Fair Work Commission is also considering the potential insertion of a new employee entitlement in the Clerks – Private Sector Award 2020 relating to working-from home (WFH) arrangements. The current NES allows workers to request WFH arrangements through a flexible working arrangement request if they have been employed for 12 months and are a carer, over 55, pregnant, live with a disability, or are experiencing domestic violence. The proposed Award amendment would extend that right beyond these groups to those covered by the Clerks Award, and this may then serve as the model for other relevant awards.
The FWC will hear from Unions and industry stakeholders at a hearing on 10-12 February 2026 to finalise the terms of the new entitlement.
The Victorian government is also separately reviewing the potential introduction of WFH entitlements for Victorian employees, which would give employees the right to a minimum of 2 days WFH. Legislation in this regard may be introduced next year.
Key actions for HR and in-house Counsel
- Submissions to the NES reform Committee are open until Friday, 27 February 2026.
- Employers should brace for changes to the NES and Modern Awards.
- Employers should monitor the introduction of working from home entitlements.
2. Victoria to restrict non-disclosure agreements in workplace sexual harassment cases
On 2 December 2025 Victoria introduced a law prohibiting employers from requesting non-disclosure agreements (NDAs) in the settlement of workplace sexual harassment cases.
Commencing in May 2026, the new reforms will:
- prohibit NDA use, unless requested by the complainant
- prohibit undue pressure or influence on a complainant to enter or request to enter an NDA (for example, offering a greater sum of money in exchange for an NDA)
- require an NDA information statement to be provided to the complainant before the complainant enters an NDA
- mandate a minimum period of 21 days to review the agreement before a complainant signs an NDA
- require that an NDA must be written in plain language
- allow a complainant who has entered an NDA to talk to certain people and bodies (such as Victoria Police and medical and legal professionals);
- require a written acknowledgement by each party that the relevant pre-conditions have been met for an NDA to be in place
- allow a complainant to terminate an NDA after 12 months by notifying the other party or parties in writing. Importantly, this would only permit the complainant from disclosing the identity of the respondent and the conduct that constituted the sexual harassment. It would not permit disclosure of any financial compensation payable in respect to the sexual harassment or the respondent’s identity if they were under 18 years old at the time of the sexual harassment
- makes any NDA that does not comply with these preconditions unenforceable to the extent the NDA has the purpose or effect of preventing the complainant from disclosing the respondent’s identity or the conduct comprising the sexual harassment
- make a NDA unenforceable if it has the purpose of effect of requiring a complainant to pay or repay an amount on the basis that the NDA is unenforceable or terminated.
The legislature has made clear that the intent is to restrict, and not ban, the use of NDAs, noting that victims may wish to protect their identity for personal or professional reasons. The requirement that the victim instigates the agreement, and has the power to terminate, gives agency to the victim and not the perpetrator. However, the Act will not apply to a non‑disclosure agreement made before the commencement of the Act.
Where breaches of the legislation are deemed to have occurred, such as where preconditions have not been met prior to an NDA being entered into, a resolution process will be available through a breach notification process and Court.
The reforms will also prohibit an employer from entering an NDA with a respondent that prevents an investigation into workplace sexual harassment, or the employer disclosing material information about workplace sexual harassment to a prospective employer of the respondent.
The law will apply to any alleged harassment that takes place in Victoria, and any worker or employer that has their work based in Victoria. Given the worldwide trend to restrict or ban NDAs, other jurisdictions in Australia may also follow Victoria’s lead.
Key actions for HR and in-house Counsel
- Ensure settlement of sexual harassment matters adheres to the new restrictions.
- Monitor jurisdictions other than Victoria for similar legislation.
- Review and update any template deeds of release, contracts in respect to non-disclosure agreements and clauses.
3. Amendments to the Privacy Act 1988 (Cth)
The second tranche of the long-awaited Federal privacy reforms will commence on 10 December 2026. The reforms introduce new requirements around the information that must be included in privacy policies, including the kinds of personal information used and the types of decisions made in automated decision-making. If an entity has arranged for a computer program to be involved in decisions that affect the rights or interests of individuals and their personal information, the entity must include information about:
- the kinds of personal information used by the computer programs; and
- the kinds of decisions made by the computer programs (and relevant information related to those decisions).
Key actions for HR and In-House Counsel
- Employers should review and be aware of automated decisions in their hiring practices, payroll, and contractual entitlements.
- Privacy policies should be updated with regard to automated decision-making and how personal information is being collected and implemented.
4. Payday Super commences July 2026
On 4 November 2025, the Government passed an amendment to the Superannuation Guarantee (Administration) Act 1992.
Starting 1 July 2026, employers must make superannuation contributions for their employees at the same time as they pay their salary or wages. To facilitate this significant change to payroll systems, super funds are required to install Member Verification systems that will validate employee super fund details before contributions are made.
Super funds must also be connected to the Government’s New Payments Platform (NPP) to enable same-day processing, and employers will be penalised if super contributions do not arrive within 7 business days of payday. This legislation aims to reduce errors, protect against wage theft, and ensure employees’ superannuation accrues concurrently with their earnings.
Key actions for HR and In-House Counsel
Review how you pay super contributions and ensure your payment schedule and processes are updated ahead of 1 July 2026.
5. Ban on Non-Compete Clauses and potential limitations on non-solicitation clauses
The Federal government is proposing to ban non-compete clauses (NCCs) for workers earning below the high-income threshold stipulated by the Fair Work Act (currently $183,100 p.a) in 2027. NCCs are now increasingly common in Australian employment contracts, extending beyond knowledge-intensive roles into low-wage sectors like fast-food, hairdressing, and childcare.
No details have been provided yet on the scope and form of the ban beyond the above, with consultation with relevant stakeholders still to occur.
The government is also considering whether restrictions on non-solicitation clauses are also necessary.
While the ban will not come into effect until 2027, businesses can start preparing for the ban in 2026, including by considering and introducing alternative arrangements that may be available to protect its confidential information and legitimate business interests outside of non-compete clauses.
Key actions for HR and in-house Counsel
- Review current non-compete clauses.
- Review employees who would be caught by the ban and steps that can and should be taken in relation to those employees.
- Consider and implement alternatives to non-compete clauses and agreements.
- Stay updated on the latest developments in this space.
6. Changes to Work Health and Safety requirements
New reporting requirements for worker absences
In December 2025, Safe Work Australia published amendments to the model Work Health and Safety (WHS) Act, requiring that employees notify a WHS regulator if an employee takes 15+ consecutive calendar days off work due to a work-related physical or psychological injury or illness, or if a medical professional anticipates that 15+ days of leave will be required.
Only absences caused by injuries or illnesses linked to the employee’s work need to be reported. Indicators that the absence is related to work may be by medical certificate or self-reporting; proximity to an incident at work (whether physical or psychosocial); or changes to the employee’s workload, role or work environment.
Under the updated model WHS Act, notification duties will also expressly extend to work-related suicide and attempted suicide (which does not need to be caused by work, and only requires a sufficient connection to work). This reflects the continued focus on psychosocial harm and risk.
Although the model WHS Act serves as the national recommended best practice, WHS laws are executed in local jurisdictions, so these changes are not enforceable until they are adopted in each of the respective States and Territories. Employers should keep abreast of reforms in their local jurisdiction/s in this regard, given the penalties that apply for non-compliance with WHS obligations.
Key actions for HR and in-house Counsel
- Keep up to date on changes to WHS notification obligations in your State or Territory.
NSW proposes protections against AI and surveillance
In NSW, the Work Health and Safety Amendment (Digital Work Systems) Bill 2025 is currently being debated in Parliament. The bill aims to protect workers from the risks of ‘digital work systems’ like artificial intelligence, automated processes and online platforms. Proponents for the bill argue that digital systems are creating excessive workloads while giving employers increased surveillance and performance-monitoring of workers, creating significant psychosocial risks. The bill also seeks to protect against discrimination caused by ‘algorithmic bias,’ which is when AI makes decisions based on historical data and perpetuates existing bias (for example, software that ranks job applicants has been shown to preference resumes based on age, race, and gender).
The most contentious issue surrounding this bill is whether Union officials should be able to access these digital systems used by employers as part of reviewing employer compliance with employment obligations. Industry leaders oppose the bill, claiming it will compromise confidential information and practices.
The bill, and issues raised by the bill, will continue to be debated in 2026. Employers should watch this space to see if this bill or some revised version will become law. Employers should also monitor for any similar bills introduced in other jurisdictions, given the topical nature of these issues.
Key actions for HR and in-house Counsel
- Keep abreast of legal developments concerning WHS and AI.
Employers should take proactive steps to mitigate the risks associated with digital work systems, especially where automation or AI may be perpetuating discriminatory decision-making.
