The request was denied, following which Mr Duong commenced proceedings in the FWC under s 65B of the FWA, which permits employees to challenge employer refusals of requests for changes to working arrangements made under the flexible work provisions.

In his ruling, Deputy President Bell (DP Bell) was required to consider whether this request constituted a change to a “working arrangement”.

As DHL’s Electronic Devices Policy was a safety-oriented policy designed to reduce distractions and minimise safety risks within the DHL warehouse facility, DP Bell concluded – albeit “with some hesitation” – that the policy was sufficiently connected to performance and as such, constituted a working arrangement for the purposes of the FWA.

The decision rejects DHL’s argument that working arrangements are confined to traditional matters such as hours, patterns, and locations of work. Instead, it suggests that workplace rules and systems that are sufficiently connected to the performance of work, including safety requirements, may fall within the scope of a flexible working arrangement request under s 65 of the FWA. As a result, employers may face a broader range of flexible work requests seeking exemptions from, or modifications to, workplace policies. However, given DP Bell’s express hesitation in reaching this conclusion and recognition that s 65 of the FWA is ordinarily directed towards more conventional working arrangements, it is likely that the decision will be confined to workplace safety measures or policies that have a similarly close connection to the performance of work.

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Starting point: “In the course of employment”

Under the Workers Rehabilitation and Compensation Act 1988, liability turns on whether a physical injury arises out of or in the course of employment.

The concept is interpreted broadly and is not confined to active work duties, or to periods where a formal employment contract is on foot. Instead, it extends to circumstances sufficiently connected with employment, which also captures activities incidental to employment.

The High Court Anchor: Hatzimanolis v ANI Corporation Ltd [1992] HCA 21

Hatzimanolis provides the central framework. In practical terms, the High Court determined that an injury may still arise in the course of employment where:

The worker is within an overall episode of employment;

The employer has, expressly or impliedly, induced or encouraged the place the worker is at, or the activity the worker is undertaking;

The injury occurs in that setting; and

There is no gross misconduct.

Crucially, the High Court emphasised that the analysis must look at the general nature, terms and circumstances of employment, not just the immediate incident.

Host Employment: How It Fits

Host Employment typically arises where the worker has an accepted compensable injury, and the original employer is unable to provide suitable duties. The employer’s insurer would then facilitate a host placement to support rehabilitation and return to work efforts.

Notably, employers have an obligation under s143M of the Act to ensure that injured workers are given suitable alternative duties to perform. Arguably, this obligation survives any termination of employment if the employer remains liable for a compensable injury.

The legal question is whether the host placement is part of the employment continuum. In the majority of return-to-work scenarios, the answer will often be yes because:

The placement is arranged or endorsed by the employer’s insurer;

The duties of that placement are tied to the worker’s medical capacity for work; and

The worker is attending that placement because of the compensable injury.

Applying Hatzimanolis, the host placement is arguably an interval or interlude within the broader episode of employment. A worker who is placed with a host employer as part of a rehabilitation or return-to-work plan is not acting independently. Rather, the placement is typically arranged, approved or facilitated by the insurer or employer for the purposes of rehabilitation. Host employment is commonly used where the original employer cannot provide suitable duties, enabling the worker to re-engage in productive activity consistent with their medical capacity. In that sense, the worker’s presence at the host workplace, and the duties they perform there, are not incidental or voluntary in any meaningful way—they are a direct product of the compensable injury and the structured return-to-work process.

Against that backdrop, host employment can be characterised as part of an “overall episode of employment” within the meaning contemplated in Hatzimanolis. Even where the original contract of employment has been terminated, the worker’s activities during a rehabilitation placement remain connected to, and indeed arise from, the original employment. The insurer’s involvement in arranging or endorsing the placement is critical. It provides the necessary element of inducement or encouragement such that the worker’s activities fall within the course of employment.

Practical Takeaways for Employers and Insurers

Host employment scenarios are less about contractual labels and more about characterisation.

Where a worker sustains a new physical injury while undertaking host employment as part of an insurer-facilitated return-to-work program, the claim will ordinarily be made against the original employer. This is because the host duties are induced or encouraged by the employer, such that the injury may still be characterised as arising in the course of employment, notwithstanding its distinct nature.

For insurers and employers, these issues underscore the importance of careful management of return-to-work arrangements. The way in which a host placement is documented and implemented can materially affect the characterisation of any subsequent new injury. Clear evidence that the placement forms part of a rehabilitation process, and is undertaken at the direction or with the endorsement of the insurer, will support an argument that the worker remains within the course of employment. On the other hand, ambiguity in those arrangements may expose insurers to contested liability or unintended gaps in coverage.

The real question is:

Was the worker engaged in an activity induced or encouraged by the employer at the time of sustaining the physical injury, viewed in its broader context?

Where the answer is ‘yes’, Hatzimanolis provides a strong foundation for concluding that the injury arose in the course of employment, and liability is with the employer and its insurer.

The post Still on the Hook? Liability for Injuries in Host Employment appeared first on Dobson Mitchell Allport.

While the case arose in South Australia, the Court considered provisions of the Civil Liability Act that are similar to the Tasmanian legislation. As a result, the principles discussed in the case are likely to have application in the context of Tasmanian personal injury claims.

Background

The respondent was injured in a motor accident and claimed damages for personal injury. Related family business entities also claimed losses said to flow from the respondent’s reduced capacity to work.

At first instance, damages of approximately $2.2 million were awarded, including substantial sums for alleged business losses and missed commercial opportunities.

The Motor Accident Commission appealed.

The Court’s decision

On appeal, the Court of Appeal substantially reduced the damages award.

The Court confirmed that, where a business claims for the loss of an injured employee’s services (a per quod claim), damages will generally be limited to the cost of replacing that labour at the time the services were lost. Claims for broader losses, including reduced profits, lost opportunities or poor commercial performance, will usually fail unless they can be clearly and directly attributed to the loss of the employee’s services rather than to other operational, financial or strategic factors.

Claims relating to the sale of assets and the loss of future growth or appreciation were rejected because they were characterised as claims for lost commercial opportunities lying beyond the scope of liability for personal injury, rather than losses caused by the injury itself.

The Court also emphasised that compensation under the Civil Liability Act is not unlimited and must be confined by principles governing the scope of liability, even where an injury has serious and long-lasting effects. In addressing the respondent’s substance abuse, the Court found that the alleged causal connection between the accident and that conduct had not been established. The Court further held that, even if causation had been established, the scope of liability did not extend to consequences flowing from the respondent’s deliberate and illegal conduct.

An application for special leave to appeal to the High Court of Australia was later refused.

Key implications for Tasmanian claims

The decision is a useful reminder that:

· Business and company claims arising from an injured worker’s incapacity will generally be limited to the replacement cost of labour.

· Losses resulting from an individual’s own illegal or intentional conduct, such as substance abuse, may not be recoverable even where the injury is said to have contributed.

The post Recovering Business Losses After Injury: What the Latest Court Decision Means appeared first on Dobson Mitchell Allport.

The applicant, Mr Eklom, commenced employment at Storage King as a storage consultant in September 2023 and later assumed responsibilities equivalent to that of a full site manager.

The first respondent, Mr Marshall, initially a customer and later a contractor who assisted with cleaning and maintenance for the company, made repeated homophobic and sexualised comments towards Mr Eklom.

He said the contractor referred to him as the “office boy”, and made comments like “Oh, the gay boy is cleaning again”, “He probably likes it that way”, and “You sure you are not just into blokes?”  Mr Marshall would also engage in “unwanted physical contact”, including by shoving or bumping into Mr Eklom.

The second respondent, Mr Marshall, a significant customer of the business, later became friendly with Mr Marshall, and subsequently joined in making sexualised remarks and harassing the applicant, including suggesting degrading behaviours and making derisive comments.  Mr Eklom said they regularly referred to him as the “gay boy” and “the storage queen”, a play on the business name, the Storage King.

He said that in January 2025, Mr Mitchell said that Mr Eklom had been “Getting tied up and left in a shed” and Mr Marshall replied, “He is probably used to it”, which Mr Eklom believed implied that because of whatever sexual orientation they presumed him to be, he would enjoy “fetish play” that involved being tied up.

During another incident, when Mr Eklom bent over while cleaning, Mr Marshall said he had bent over “to clean the shed like he is practising for something” and Mr Mitchell responded, “Yes, we know you like it that way”.

They also made comments about him “getting pounded” or raped in the shed, and said that if someone followed him into the shed, “It will turn into a sex party”.

The harassment caused Mr Eklom significant emotional distress, resulting in diagnoses of anxiety, stress and depression.  He eventually complained to his employer, but the complaint was dismissed, and applicant was subsequently terminated after taking personal leave.

Mr Eklom filed an application in the Federal Circuit and Family Court of Australia in July 2025 seeking declarations that there had been a contravention of s 527D the Fair Work Act 2009 (Cth), by the respondents engaging in sexual harassment of the applicant, who was a worker within a business or undertaking; seeking pecuniary penalties that arose from that contravention and also seeking compensation pursuant to s 545(2)(b).  The original application alleged that his employer had also breached the Fair Work Act because of the activities of the respondents, but that claim was withdrawn once it was made clear that they were never employees.

The respondents did not engage at all in this process.  The hearing was conducted in their absence and Judge Vasta proceeded to make the declarations sought, finding that:

• Section 527D of the Fair Work Act, a relatively new section which prohibits sexual harassment in connection with work, had been breached by the actions of both respondents, which fell squarely within that definition.
• The harassment was deliberate, repeated and degrading, manifesting in a pattern of behaviour that caused significant emotional harm to Mr Eklom.
• The respondents were ordered to pay the sum of $90,000 as compensation for loss suffered by the plaintiff due to their contraventions of section 527D of the Fair Work Act 2009, reflecting the serious nature of the harassment and its detrimental effects on Mr Eklom.  The court determined that the second and third respondents were jointly and severally liable for compensating the plaintiff for the loss.
• The respondents were each ordered to pay a $13,000 pecuniary penalty to Mr Eklom.  The pecuniary penalties were imposed to achieve specific and general deterrence, ensuring the respondents and others were dissuaded from engaging in similar misconduct in the future, in line with principles previously established by the High Court.
• No aggravated damages were awarded as the respondents’ lack of engagement was not considered an aggravating factor.
• The court declined to award aggravated damages, as the respondents’ failure to engage in the process was not deemed to be an unreasonable act causing additional expenses for the plaintiff, nor were costs awarded as the plaintiff would have incurred the same expenses regardless of the respondents’ non-participation

Section 527D, which came into effect in March 2023, was incorporated into the Fair Work Act to expressly prohibit sexual harassment of a worker, prospective worker, or person conducting a business or undertaking.  This decision is one of the first applications of the section, and the first made against contractors and customers external to the employer in connection with work (the first being that of Mejia v Capital City Cafe‑Bar [2026] FedCFamC2G 468 (26 March 2026)).

The decision demonstrates that the new provisions confirm that workplace harassment laws extend beyond traditional employment relationships.  There are now repercussions for all customer-facing environments, including retail, hospitality, health and service settings, where harassment may come from clients, contractors or patrons.

It is also a reminder to employers as to the essentiality of providing a safe work environment and proactively taking all reasonable steps to prevent sexual harassment in the workplace. 

Stopping at preparing a sexual harassment policy and implementing regular training is unlikely to be sufficient.  Employers should consider:

• Having their sexual harassment policies refer to the obligations of bystanders and state that disciplinary action will be taken against workers who engage in sexual harassment;
• developing a complaints handling procedure for recipients of complaints to follow in the event of sexual harassment; and
• monitoring workplace culture to ensure workers understand and comply with sexual harassment policies and training.

The post New Workplace Risk: Customers and Contractors Liable for Sexual Harassment appeared first on Dobson Mitchell Allport.

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.

The Supreme Court of Tasmania has clarified the Tasmanian Civil and Administrative Tribunal’s (TASCAT) authority to extend the time for objecting to a bill of costs under the workers compensation scheme. The Court’s decision also provides important guidance regarding the scope of this power.

The Case: Walker v Mondelez Australia Pty Ltd [2026] TASSC 6

In this matter, the Supreme Court was asked to consider whether TASCAT could extend a 14-day time limit stipulated in regulation 16 of the Workers Rehabilitation and Compensation Regulations 2021 (Tas). This regulation provides that, if no objection is filed within the prescribed period, a bill of costs is deemed to be admitted.

The Arguments

The worker had contended that regulation 16 was mandatory and left no room for an extension. However, TASCAT found that it possessed the power to extend the time limit under rule 11 of the Tasmanian Civil and Administrative Tribunal Rules 2021 (Tas), which allows the Tribunal to extend or abridge time limits. The worker appealed the decision to the Supreme Court of Tasmania, arguing that TASCAT was wrong to decide that it had thepower to extend time.

The Supreme Court’s Decision

On appeal, Chief Justice Shanahan confirmed TASCAT’s decision. His Honour held that rule 11, made under section 115 of the Tasmanian Civil and Administrative Tribunal Act 2020 (Tas), grants TASCAT a broad discretionary power to extend time limits imposed by a “relevant Act”, including the Workers Rehabilitation and Compensation Act 1988 (Tas), even if the statutory period has expired. Regulation 16 deals with steps taken within ongoing proceedings before TASCAT and therefore falls within the Tribunal’s power to extend time.

Nature of Regulation 16 and the Power to Extend

The Court confirmed that regulation 16 remains a mandatory, deeming provision as had been found in prior cases. However, this does not preclude the availability of discretionary relief in suitable cases. The power to extend time, when properly interpreted, does not compromise the efficiency of the workers compensation scheme.

Distinction Between Types of Time Limits

Addressing concerns raised by the worker about the impact of the extension power on the efficient operation of the workers compensation scheme, Chief Justice Shanahan drew an important distinction between:

• time limits governing the commencement of proceedings, and
• time limits governing acts taken in relation to existing proceedings.

It was held that rule 11 applies only to the latter category. Rule 11 does not provide TASCAT with the power to extend time limits that govern the making of compensation claims or the commencement of proceedings in TASCAT.

Significance of the Decision

This decision provides valuable guidance for parties involved in workers compensation disputes. It confirms that strict procedural time limits continue to apply but that there is scope for extensions of time in relation to certain time limits within TASCAT proceedings so that unjust outcomes can be avoided.

The post TASCAT and Time Extensions in Costs Disputes appeared first on Dobson Mitchell Allport.

The worker had been continuously certified as incapacitated since making a workers compensation claim in May 2022. He later resigned from his employment and was paid out approximately 16 weeks of accrued annual leave as a lump sum. Following this, the employer’s insurer wrote to the worker advising that he could not receive workers compensation payments and annual leave at the same time, and weekly payments were stopped. The worker applied to the Tribunal for the resumption of weekly payments.

Both parties relied on an earlier decision of the former Workers Rehabilitation and Compensation Tribunal, commonly referred to as the Ausdoc case. In that decision, the Chief Commissioner determined that a lump sum payment of annual leave could be set off against a worker’s entitlement to weekly payments.

In this case, the employer relied on section 84(2) of the Workers Rehabilitation and Compensation Act 1988 (Tas) as the basis for suspending payments. Relevantly, that section provides that a worker is not entitled to weekly compensation payments while taking annual recreational leave or long service leave during a period of incapacity, where that leave is taken in accordance with section 84(1)(b).

Section 84(1)(b) allows a worker and employer, by agreement, to take annual leave during a period of incapacity for which workers compensation is payable. The key issue for the Tribunal was whether the worker had “taken” annual leave in accordance with that provision.

The Tribunal found that he had not. It held that the worker was no longer an employee at the time the annual leave was paid out and, as a result, could not have taken annual leave by agreement with the employer for the purposes of section 84(1)(b). The Tribunal drew a clear distinction between taking annual leave during employment and the payment of accrued leave as a lump sum on termination. Only the former has the effect of suspending an entitlement to weekly compensation payments.

The Tribunal therefore ordered that the worker’s weekly payments be resumed.

The Tribunal’s decision highlights a clear distinction between taking annual leave during employment and the payment of accrued leave on termination, with only the former capable of affecting a worker’s entitlement to weekly compensation payments.

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The issue was whether an employer should be given full access to pre-injury medical records produced under a summons, or whether access should be restricted where a worker objects to certain documents on the basis that they are not relevant to the claim.

Background

In this case, the worker issued a summons to two medical practices they had attended. The medical records were provided to the Tribunal and reviewed by the worker, who objected to parts of the records being released to the employer. The worker argued that some documents were not relevant because they did not relate to the specific injury for which compensation was being claimed.

The Tribunal’s decision

The Tribunal confirmed that the test for relevance is a low threshold. Documents will generally be open to inspection where they have an “apparent relevance”, meaning they may reasonably “throw light” on an issue in dispute.

An objection based on relevance will not succeed if there is a reasonable basis to think that the documents:

• could be used as evidence, or
• may be put to a witness in cross‑examination,

and could affect the outcome of the proceedings in a way that is not fanciful or speculative.

In this case, the worker’s claim involved a degenerative condition. The Tribunal found there was a real possibility that the medical records sought could assist in understanding the issues in dispute and may be relevant to how the claim should be resolved. Because the documents might reasonably be used in cross‑examination, they were considered to be apparently relevant.  The Tribunal accepted that there was a possibility that the documents returned may ultimately not turn out to be relevant, but this did not preclude the employer from inspecting them.

As a result, the Tribunal allowed the employer to inspect the pre-injury records without restriction.

Key implications

• This case suggests that in the context of workers compensation disputes TASCAT will generally allow access to prior medical history where the documents may assist in determining the issues in dispute or could reasonably be used in cross‑examination.

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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.

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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