The Court ordered compensation pursuant to s 527D arising from a single incident of sexual harassment involving a kiss to the mouth, reinforcing that the Respect@Work reforms have introduced a direct, compensable statutory pathway.

The Court accepted the conduct caused real harm and awarded damages to reflect the personal impact of the harassment, not just the existence of inappropriate behaviour.  The focus was squarely on consequences, not intent or workplace informality.

Section 527D fundamentally changes the risk profile for employers.  Sexual harassment is no longer confined to discrimination jurisdictions or policy‑based responses.  It is a Fair Work Act (2009) contravention with financial consequences, capable of being enforced through federal workplace law processes.

Three Points Stand Out:

• compensation under the Fair Work Act 2009 is now a practical remedy, not a fallback option
• small and informal workplaces are squarely within scope
• failure to prevent or address sexual harassment can translate into direct monetary liability

For employers, the lesson is straightforward.  Policies alone are not protective.  Courts will assess whether preventative steps were real, active and effective and whether complaints were handled promptly and appropriately.

Sexual harassment risk now sits firmly at the intersection of employment law, compliance and financial exposure.

The post A New Compensation Pathway Under the Fair Work Act: What Employers Need to Know appeared first on Dobson Mitchell Allport.

These changes form part of a nationwide effort to prevent serious financial crime, including fraud and money laundering.  While the new requirements affect how law practices operate behind the scenes, our focus remains the same: providing clear, practical and trusted legal advice.

Why are these changes happening?

Australia is updating its laws to align with international standards and to close gaps that criminals can exploit. Regulators have identified that certain professional services, including some legal services, can be misused for illegal activity if appropriate checks are not in place.

The new laws are designed to strengthen safeguards across the legal and financial system.

Will this affect all legal work?

No. The new requirements apply only to certain higher‑risk legal services, such as:

• buying or selling property
• setting up companies or trusts
• managing client funds
• some commercial and financial transactions

Many areas of legal work, including litigation and court‑based matters, are not affected.

What might clients notice?

For some matters, we may need to:

• request additional identification documents
• ask questions about the nature or purpose of a transaction
• carry out ongoing checks during longer‑running matters

These steps are now required by law and are similar to the checks clients may already be familiar with when dealing with banks or other financial institutions.

What are we doing to prepare?

Dobson Mitchell Allport is actively preparing for these changes by:

• reviewing our internal systems and processes
• training our staff on the new requirements
• ensuring compliance is handled efficiently and respectfully

Our aim is to make this transition as smooth as possible for our clients, with minimal disruption to your legal matters.

Need more information?

If you have questions about how these changes may affect your matter, we are happy to discuss them with you.  Please feel free to speak with your lawyer or contact our office.

The post New Anti‑Money Laundering Laws for Law Firms: What Clients Need to Know appeared first on Dobson Mitchell Allport.

A number of employees brought unfair dismissal claims against Helensburgh in the Fair Work Commission, claiming that their dismissals were not cases of “genuine redundancy” arguing they could have performed work which was done by contractors. Helensburgh objected to the applications on the basis that the terminations were cases of “genuine redundancy”.

The High Court found that the Full Federal Court last year correctly determined the matter when they found that when considering a redundancy situation, the employer had an obligation to assess whether the employees could perform the roles of contractors at its mine, prior to making redundancies.

The High Court has unanimously held that the Fair Work Commission is permitted to inquire whether an employer could have made changes to how it uses its workforce when determining whether a dismissal is a “genuine redundancy”.

The difficult facts for this employer included that while it was appropriate to decrease the size of their workforce due to COVID-19 impacts at that time, the employer had ongoing work that could be performed by the former employees, rather than contractors who were supplied by two companies on a “as-needs” basis.

The case is the 5th decision relating to this matter, and while the facts are not usual, it provides an interesting insight into the test for a “genuine redundancy”.

If you require further information about potential redundancies, please do not hesitate to contact a member of our Workplace Relations team.

The post High Court Rules Employer Must Consider Employee Redeployment Before Redundancy appeared first on Dobson Mitchell Allport.

Below is a review of the recent determinations by TASCAT on workers compensation matters in March and April 2025. The main takeaways are:

• TASCAT will approve an application for summons where the documents sought have apparent relevance to the issues in dispute;
• Employers are not required to provide notice to workers when terminating weekly payments under s86(1)(a) and (b).
• ‘Serious and wilful misconduct’ under s25(2)(a)(i) requires that the action: causes an immediate risk of serious injury; was deliberate and not thoughtless; and was accompanied by an appreciation of risk.
• The apparent temporal connection is a pertinent consideration for determining whether a reasonably arguable case exists where workers make a claim following an employer’s reasonable administrative action.
• TASCAT has powers to determine if separate referrals ought to be heard and determine separately, and TASCAT will exercise it where the referrals are about different issues.
• Where employers intend to rely on the exceptions to liability under s25(1A)(b) and (c), their evidence must outline that the actions were taken in a reasonable manner.

Our insurance litigation team are available and competent to advice on matters or issues alike to the recent determinations by TASCAT that are summarised in this article.

KC v Devonfield Enterprises Inc [2025] TASCAT 65 (10 April 2025)

The main issue addressed in this determination by Deputy President Grueber relates to the test for determining an application for summons. Essentially, the test is whether the documents that is the subject of the summons have apparent relevance to the issues in dispute between the parties.

Our key tip:

Ensure that the application for summons is not akin to a fishing expedition. The application need only demonstrate that the documents sought after are likely relevant to the dispute.

Metro Tasmania Pty Ltd v KX [2025] TASCAT 62 (3 April 2025)

Here, the employer sought to rely on the exception to liability under s25(2)(a)(i) regarding serious and wilful misconduct of the worker in a s81A Hearing.

Senior Member Chandler said that the test for serious and wilful misconduct is that the action (citing Hill v Brambles Holdings Ltd [1987] TASSC 31:

1. Must give rise to an immediate risk of serious injury; and
2. Is deliberate and not a thoughtless act; and
3. Must be accompanied by an appreciation of risk.

Senior Member Chandler determined that TASCAT cannot assess the worker’s state of mind and appreciation of risk at a s81A Hearing.

Our key tip:

Actions of workers that are careless leading to an injury may not necessarily amount to serious and wilful misconduct. The test requires that the worker intentionally performs an act which led to the serious injury.

The State of Tasmania (Department of Health) v KND [2025] TASCAT 58 (31 March 2025)

Here, the worker had made a workers compensation claim subsequent to attending a meeting with her supervisor. The employer argued that the meeting amounted to a reasonable administrative action which had been done in a reasonable manner.

Senior Member Chandler determined that the ‘apparent temporal connection’ between the final catch-up between the worker and her supervisor is a pertinent consideration for the s81A referral.

Our key tip:

It is important to identify the date of injury and/or initial incapacity when assessing whether there is a close temporal connection between the injury and employer’s administrative action.

NN v The State of Tasmania (Department of Health) [2025] TASCAT 57 (31 March 2025)

Here, the worker filed a s42 referral and the employer filed a s88 referral. The worker sought determinations about the date that his weekly compensation rate ought to have been calculated and the appropriate rate that it ought to be made. The employer sought determinations on the worker’s capacity for work and a reduction of the weekly payment rate.

Senior Member Jack stated that s85(1)(b) of the Tasmanian Civil and Administrative Tribunal Act 2020 empowers TASCAT to determine whether separate referrals ought to be heard and determined separately. She determined that separate referrals need not be heard together where they require a determination about different issues.

The State of Tasmania (Department of Police, Fire and Emergency Management) v DKN [2025] TASCAT 44 (6 March 2025)

The worker’s claim relates to a psychological injury arising from the employer overlooking her for a senior role. The employer argued that there were reasonable grounds to not award the promotion to the worker, and that the decision amounted to a reasonable administrative action.

Senior Member Chandler determined that the employer’s evidence was insufficient to demonstrate that there were reasonable grounds to not award the promotion and that the administrative action was taken in a reasonable manner. Accordingly, the employer’s s81A referral was dismissed.

Our key tip:

The exceptions to liability under s25(1A) require evidence to support that the employer’s actions were based on reasonable grounds / taken in a reasonable manner.

The post Workers Compensation Updates from recent TASCAT determinations appeared first on Dobson Mitchell Allport.

The change would prohibit clauses that prevent or restrict workers from moving (or attempting to move) to a competing employer, or from starting or operating a competing business within a specific geographic location and for a certain duration. These clauses are commonplace employment contracts and are often broad in scope.

The prohibition will only apply to workers earning currently less than the high-income threshold of $175,000.00 per year, which is stipulated in the Fair Work Act 2009.

Although the specifics of this proposed change are relatively scarce, it is important to note that there are notable exceptions to this prohibition.

The proposed prohibition will not allow:

• employees to ‘poach’ existing clients when moving to a competing employer or starting their own business; nor will it allow
• employees to disclose confidential information to competitors, such as client lists and commercially sensitive documents.

We recommend you review any employment agreements that have ‘non-compete’ or ‘restraint’ clauses and ensure that in the future (if the government is re-elected) they only cover the exceptions to this prohibition.  These clauses should always be specifically drafted to meet the particular circumstances of your employees.

If you need any assistance, please contact us.

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The Magistrates Court of Tasmania recently published an interesting decision which discusses the legalities of prescription cannabis for the purposes of the Road Safety (Alcohol & Drugs) Act 1970 (Tas) (the Act), and potentially in other contexts.

The defendant, Mr Marshall, faced charges of operating a motor vehicle with THC, the psychoactive component of cannabis, present in his system, contrary to s 6A of the Act.

Mr Marshall did not dispute that he had consumed THC prior to driving but asserted that it was obtained legally, pursuant to a prescription from a registered medical practitioner in Victoria, and dispensed from a pharmacy also in Victoria, carried by Australia Post to his Tasmanian address.

• During cross-examination, Mr Marshall said he was unaware that medicinal cannabis could be obtained from a Tasmanian based medical practitioner.  Further, that he had sourced his information concerning the legalities around medicinal cannabis use and driving from an internet chat forum. He said it was his belief that it was lawful to drive after using medicinally prescribed cannabis so long as he was not “under the influence”.

The primary defence advanced by Mr Marshall was that the defence provided by s 6A(2) of the Act applied to the circumstances of his case, that being, that a person does not commit a drug driving offence if the prescribed illicit drug was obtained and administered in accordance with the Poisons Act 1971 (Tas) (Poisons Act).

• Magistrate Fairley did not agree, and determined that in order for THC, or another prescribed illicit drug, to have been “obtained and administered in accordance with the Poisons Act”, prescription for that drug must have been obtained from a medical practitioner in Tasmania. 
• His Honour arrived at that conclusion following a review of the Act, and the Poisons Act, of which he said, “The effect of those provisions is that a medical practitioner may prescribe cannabis for use by a patient only if that practitioner is present in Tasmania and acting in the course of medical practice in Tasmania and has made the appropriate application to the Secretary in accordance with the legislation”.
• It was therefore not obtained and administered in accordance with the Poisons Act 1971 and the defence provided by s 6A(2) of the Act did not apply.  Further, his Honour rejected that the defence of honest and reasonable mistake of fact was available to Mr Marshall given his knowledge of medical cannabis prescriptions and use had been obtained from internet chat forum, rather than from a legal practitioner or other proper authority

This case underscores the complexities associated with prescription regulation in Tasmania, and the highlights the importance for individuals looking to obtain such a prescription to do so from a local medical practitioner.

It also provides useful guidance in other contexts, such as for employers seeking to enforce or introduce a “zero tolerance” Alcohol & Drugs policy or employment condition, without inadvertently discriminating against employees who have lawfully obtained a medical prescription.

The post Smith v Marshall [2024] TASMC 12 appeared first on Dobson Mitchell Allport.

The decision concerned an application by an employer under s 88 of the Tasmanian workers compensation legislation for weekly payments of workers compensation to be suspended for the duration of the worker’s entitlement to Commonwealth parental leave payments. The employer’s argument was that, had the work-related injury not occurred, the worker would have foregone her usual wages and relied upon parental leave payments while on parental leave.

The Tribunal dismissed the employer’s referral. In doing so Deputy President Grueber determined that parental leave payments are not ‘earnings’ for the purposes of the workers compensation legislation but are instead a benefit that, pursuant to s 98 of the Commonwealth legislation, should not be taken into account for the purposes of state workers compensation legislation. The Tribunal also accepted that pregnancy and childbirth are a supervening event that is irrelevant to a worker’s entitlement to workers compensation.

The decision confirms that workers compensation payments must continue in accordance with a worker’s medical certification if a worker takes parental leave and receives Commonwealth parental leave payments. We recommend obtaining legal advice if you are uncertain about entitlements to weekly workers compensation payments.

If you have any questions about this article or wish to make an enquiry, please contact our insurance litigation team.

The post WORKERS COMPENSATION CASE LAW UPDATE appeared first on Dobson Mitchell Allport.

Inspectors are on alert for unlawfully low flat rates of pay; “off the books” employment arrangements; inadequate or missed breaks; non-payment of penalty rates and overtime rates; inadequate or false recordkeeping and pay slips; and cashback schemes, in which employees are made to unlawfully pay back some of their wages, amongst other concerns.”

Fair Work Ombudsman targets Hobart eateries – Fair Work Ombudsman

We know only too well that Awards can be difficult to interpret. As an employer there are many things you need to be aware of in terms of rates of pay as well as allowances and/or penalties. The best way to be armed for inspection is by having the correct procedures and pay rates in place. In some cases, you may have the best of intentions but still receive a non-compliance notice. If this happens, best to seek assistance swiftly.

Our team at Dobson Mitchell Allport has wide ranging experience with these awards, including the Fast Food Industry Award, Hospitality Industry (General) Award and Restaurant Industry Award. We have acted for employers throughout the investigation, have assisted clients in reaching compliance and responding to the Fair Work Ombudsman. If you have any questions concerning Award coverage and/or employee entitlements, please contact a member of our team.

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On 11 September 2023, the Work Health and Safety Amendment (Industrial Manslaughter) Bill 2024 (Tas) was passed by the Tasmanian Parliament, making Tasmania the last state to introduce industrial manslaughter as an offence.

A person commits industrial manslaughter if they cause the death of a worker at the workplace due to negligent conduct, and that person is a responsible person in the workplace or has a health and safety duty in respect of either the workplace or the worker.

The meaning of ‘responsible person’ includes: 

• A person conducting a business or undertaking (PCBU), such as employers, corporations, sole traders, businesses, state and local governments;
• The officers of a PCBU, such as directors;
• A person with management of control of a workplace;
• A person with duties involving management or control of fixtures, fittings or plant at workspaces, designers, manufacturers or suppliers of plant, and persons that install, construct or commission structures; and
• A person of a prescribed class under the Work Health and Safety Regulations.
• Organisations and individuals that are classified as a ‘responsible person’ will be held accountable for acts or omissions that result in workplace deaths under the offence. Volunteers are an exception.
• The offence is not intended to apply to middle management or senior workers who do not have the power or resources to improve safety.
• Penalties

Industrial Manslaughter carries significant penalties. Under the new legislation an individual found guilty of the offence faces a maximum penalty of 21 years in jail and a body corporate will face fines of up to $18 million.

What does this mean for workplaces?

Whilst the penalties for industrial manslaughter are substantial, the offence does not impose any additional work health and safety duties.

Employers and people who are at the highest level of organisations should continue to comply with the existing work health and safety duties under the Act. Systems need to be in place to ensure that employees and people on worksites are aware of, and work in accordance with, all work health and safety requirements. It is vital that organisations proactively engage in reviews and audits of work health and safety systems to ensure that all relevant standards are being meet by the organisation.  

Taking these steps will help mitigate the risk of fatalities in the workplace. Failing to do so may result in you or your organisation being held criminally liable and facing significant fines or imprisonment.

If you would like further information about implementing and reviewing work health and safety systems for your organisation, please contact our team.

The post Industrial Manslaughter: What is it and what does it mean for workplaces moving forward? appeared first on Dobson Mitchell Allport.

In December 2022, a positive duty on employers and persons conducting a business or undertaking (PCBU) to eliminate workplace sex discrimination and harassment commenced.

Employers need to carefully consider their legal obligations arising under these new provisions.

This article discusses a number of issues that arise with respect to the positive duty and provides some information about how to prevent sex discrimination and harassment occurring and some advice on how to make sure that you comply with the positive duty.

The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth) (SD Act) by introducing a positive duty on employers and PCBUs to eliminate:

• workplace sexual harassment, sex discrimination and sex-based harassment;
• conduct that amounts to subjecting a person to a hostile workplace environment on the ground of sex; and
• victimisation.

This important change requires employers to shift their focus to actively preventing workplace sex harassment and discrimination, rather than responding after it occurs.

Regulatory powers have also been provided to the Australian Human Rights Commission (AHRC) to investigate and enforce compliance with the positive duty.

The focus on prevention of workplace sexual harassment and discrimination shifted responsibility from those who experience discrimination and harassment to those who are best placed to prevent it:  employers and PCBUs.

Provisions that relate to compliance with the positive duty, including the ability of the AHRC to conduct inquiries into compliance with the positive duty, issuing compliance notices, the enforcement of compliance notices and entering into enforceable undertakings, commenced on 13 December 2023.

The provisions put into practice Recommendation 28 of the Respect@Work Report (Report) which recommended that, “the Fair Work system be reviewed to ensure and clarify that sexual harassment, using the definition in the Sex Discrimination Act, is expressly prohibited”.

The provisions summarised below about the prohibition against sexual harassment in connection with work commenced on 6 March 2023.

These provisions do not replace the existing prohibition on sexual harassment in the SD Act or the Anti-Discrimination Act 1998 (Tas) (AD Act).  However, persons who allege that they have been sexually harassed in connection with work are now able to take action to address that harassment through a range of different ways.

Workers now have the choice to take action under the Fair Work Act (FW Act), or under existing provisions in the SD Act or the AD Act.  Unions also now have the right to pursue a claim on behalf of a member or the FWO can take action as a regulator.

The rationale for including these provisions in the FW Act is one of the key findings in the Report that the “… current regulatory framework fails to incentivise employers to create harassment-free workplaces. Instead, our laws place the burden of addressing harassment almost entirely on the individual.”

The new provisions are also designed to alleviate the burden on individuals having to address sexual harassment in the workplace by enabling other parties to represent the person making the allegations or to otherwise take action in relation to what a person has experienced in relation to their work.

These provisions in the FW Act apply to sexual harassment which occurs on or after 6 March 2023.

Positive duty to prevent sexual harassment

Most employers and PCBUs will already have in place a number of measures that are required to enable them to comply with the positive duty.  The amendments provide employers and PCBUs with an opportunity to review and, if necessary, update the measures they have in place to address sex discrimination and sexual harassment.

What is required under the positive duty?

An employer or the PCBU must take reasonable and proportionate measures to eliminate, as far as possible, specified forms of unlawful sex discrimination, including:

• sex discrimination;
• sexual and sex-based harassment;
• hostile work environments; and
• victimisation.

The focus of the positive duty is on prevention and taking action early.

Steps to take to build positive workplace culture include:

Be aware of heightened risk factors for sexual harassment.  Consider circumstances where power imbalances exist and legal-services industry systemic factors such as low diversity, inequality, gender imbalances in relationships, isolated working environments and instances of poor workplace culture.

Assess and manage risks.  Identify risks inside and outside your practice or workplace, drawing on relevant guidance, evidence, and past experiences to develop an understanding of what they are and what actions you can take to reduce or eliminate them. If you are not able to eliminate risks, minimise them so far as is reasonably practicable.

Foster a positive workplace culture.  Build a culture of openness, trust and respect that is supported by policies, human resources practices, staff education and training. This helps to minimise the risk of sexual harassment and supports a culture where any instances are either reported or dealt with in a way that minimises harm to workers. Ensure that a “culture of silence” or acceptance of inappropriate behaviour doesn’t exist.

Show strong leadership.  Senior managers should set a strong example of the types of behaviours and cultures which prevent workplace sexual harassment.

Provide information, training and education.  Adopt new and better approaches to workplace education and training that shows workers, managers and supervisors how to prevent and respond to sexual harassment, actions to take if they experience or witness it and how to report an incident.

Measure your effectiveness.  Like any other workplace hazard, employers should measure and understand the prevalence, scope and impacts of sexual harassment and monitor and share the effectiveness of their workplace initiatives to prevent and respond to it.[2]

The positive duty will align with the vicarious liability provisions in the SD Act where an employer may be found liable for the unlawful acts done by their employees or agents if an employer has not taken “reasonable steps” to prevent conduct occurring.

Most employers have already taken some steps to make it clear that sex discrimination and sexual harassment are unacceptable in the workplace and have adopted a number of practical measures to reinforce this.  There are already positive duties under WHS laws to eliminate or minimise, so far as is reasonably practicable, risks to health and safety, which include risks of sexual harassment, victimisation and other risk causing sex discrimination.

The new positive duty is intended to operate concurrently with existing duties in WHS laws.

Enforcement of positive duty

The AHRC is empowered to monitor and assess compliance with the positive duty. These powers include options to:

• conduct inquiries into compliance with the positive duty and provide recommendations to achieve compliance;
• give a compliance notice specifying the action to be taken, or refrain from taking, to address their non-compliance;
• apply to the federal courts for an order to direct compliance with the compliance notice; and
• enter into enforceable undertakings.

The AHRC may initiate an inquiry into a person’s compliance with the positive duty if it “reasonably suspects” that a person is not complying.

The AHRC has been resources to enforce compliance with the positive duty including:

• to educate employers about the positive duty to prevent workplace sexual harassment and assess their compliance;
• to facilitate a disclosure process for historical incidents of sexual harassment to support victim-survivors and identify improvements to systems and processes; and
• to ensure the AHRC is the central point of contact for information on workplace rights and responsibilities and provides a coordinated referral service.

The Commission has published comprehensive resources for employers and PCBUs about how they can comply with the positive duty, including:

• Guidelines
• An Information Guide
• A Quick Guide
• A Resource for Small Business
• Factsheets

The Guidelines for Complying with the Positive Duty under the Sex Discrimination Act 1984 (Cth) will be used by the AHRC in assessing compliance with the positive duty.[3]

A leading objective of the AHRC is to help employers and PCBU’s to improve their own practices.

What should you do now:

1. Implement appropriate policies and procedures on bullying, discrimination and harassment including sexual harassment which meet the extensive legislative and case law requirements. Review existing policies to ensure that they are up to date.
2. Ensuring that all employees attend anti-bullying, discrimination and harassment training, including information about what constitutes sexual harassment and ensuring employees understand avenues for reporting cases of this type of conduct.
3. Outline the types of behaviours, attitudes and language that disrespect or exclude people based on gender, gender identity, sexual orientation or assumptions about dominant gender stereotypes and socially prescribed gender roles.
4. Provide details about what will occur if policies are breached.
5. Act promptly and document any investigation process and provide support to all parties involved during any investigation process.

[1] www.respectatwork.gov.au/individual/understanding-workplace-sexual-harassment/what-causes-workplace-sexual-harassment

[2] Comcare – Workplace Sexual Harassment: Practical Guidance for Employers: www.comcare.gov.au

[3] See Resources on Positive Duty (humanrights.gov.au)

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