Humans tend to prefer stability. Employers tend to prefer predictability. Employees tend to prefer the status quo.
Unless it benefits them directly, change tends to be a driver of stress for humans. Employers tend to delay or stop investment. Employees tend to cite adjustment disorder diagnoses.
Change is often necessary.
Managing change is important. Understanding the reasons for change is fundamental. Predicting the course of change can be critical.
When we analyse the direction of change in employment law, we sometimes think about it as a pendulum. For example, many would say WorkChoices 1.0 marked the point of maximum displacement of the pendulum, including with the introduction of the equivalent of a self-assessment test for collective agreements, and the ability to contract out of awards through individual agreements. Less than 12 months later, WorkChoices 2.0 (“A Stronger Safety Net”) started to walk back some of the effects of the change, including through the introduction of a new Workplace Authority, and the application of a third-party ‘fairness test’. The pendulum continued to swing back with the later introduction of the Fair Work Act. Some were happy, some were not, but the direction of travel was clear to all.
When we look at the current direction of change, you’d be excused for seeing it less as a pendulum, and more as a dropped handful of marbles. To provide a few examples:
In 1983, New South Wales (followed by other jurisdictions) moved away from a model of prescriptive rules regulating health and safety, to a model of general duties. Under the general duties regime, Codes of Practice could be published by the relevant authority to provide guidance and assistance to those who were regulated. Those Codes of Practice were not mandatory. Complying with them was not a defence to a breach of the general duty. Not complying with them did not (itself) create a breach. Over the following 43 years, Codes of Practice have become more detailed and more prescriptive. From 1 July 2026, PCBUs in NSW are now legally required to comply with Codes of Practice as a prescribed, minimum standard. The movement back towards prescriptive standards appears to continue.
At the same time, after a long history of juggling and managing the differences and nuances between individual state and territory based occupational health and safety laws, 2012 marked an important point in the momentum towards uniform safety regulation with the introduction of the model Work Health and Safety Act. Less than 15 years later, the refusal of one state to adopt the model laws and changes (such as NSW prescribing legally enforced minimum standards) appear to evidence a creeping divergence back towards state-based differences.
After almost 100 years of state and territory-based employment laws, in 1997 the Kennett led Victorian government handed Victoria’s industrial relations powers over to the Federal Government. Nine years later, the Howard led Federal Government used the Constitution’s corporations power to effectively continue Kennett’s momentum and move the majority of employment laws across the country, to the federal level. Irrespective of where you sat on the politics, the nationalisation of Australian employment laws led to a reduction in complexity, a degree of modernisation, an increase in uniformity, and has led to benefits for both employers and employees. Jump forward 20 years, and the introduction or amplification of state and territory-based differences are on the rise. Examples include:
Long held and expanding differences in protected characteristics under anti-discrimination laws.
Some states introducing and expanding positive duties / general duties into the realm of anti-discrimination laws.
Some states prescribing the adoption of written prevention plans in respect of some types of workplace conduct.
NSW prescribing WHS minimum standards through the enforceability of Codes of Practice.
Victoria mandating minimum work-from-home rights.
Victoria restricting the use of non-disclosure agreements in the resolution of workplace sexual harassment matters.
The differential treatment of overseas service when determining long service leave entitlements.
The differential treatment of incentive compensation when calculating long service leave payments.
Changes to what constitutes a compensable injury (particularly a compensable psychological injury) under workers compensation.
Touted changes with respect to state-based workplace surveillance, the use of biometric data, and AI.
The point here is not whether any individual change is positive or not, but rather to understand the broader, indirect impacts those changes may have on those who are impacted by them. It’s also about being conscious of how the rationale of the individual change complements, or contradicts, the currently understood direction of travel. Further, the collective pace, volume and complexity of individual changes risk confusion, uncertainty and a reduced confidence in the predictability of what tomorrow looks like.
As an employer, do I seek to apply different minimum standards in each jurisdiction, or do I voluntarily adopt the most onerous standard nationally? Do I pay employees differently during long service leave based on the state they’re based in, or do I adopt the most generous approach for everyone?
But for employers, the challenge spans beyond compliance. Fostering and growing a positive organisational culture against a broader external environment of change and differential treatment can be challenging. How satisfied does an employee in one state feel, knowing that they’re being paid less during their long service leave than their colleague on the other side of the border? Similarly, what are the organisational cultural impacts going to be when you’re required to allow a worker in Melbourne to work from home several days each week, but the same role in Sydney does not.
There’s no one-size-fits-all answer to managing these issues, but there’s a few principles to help guide us.
Ignoring the change is inherently fraught. Nature abhors a vacuum, and an information vacuum is no different. Unless you acknowledge and communicate the change and its expected impact clearly, you leave the space open for unanswered questions, competing conspiracies and individual catastrophising.
Focusing on values should be your guide. When things are changing and uncertainty seems to be growing, focusing on the controllables provides certainty. Focusing on organisation values can provide both direction and an understanding of why an organisational decision has been made.
You should focus on explaining, but not get caught up on convincing. Explaining change is important, and what you say, and how you say it will have a direct impact on how the change is received and carried forward by others. It is always nice for others to be convinced and genuinely aligned with the change, but it is inevitable that not everyone will.
You can’t guarantee the future, but you can communicate the plan. Understanding the direction in which the pendulum is swinging is as important as understanding its location on the arc. Helping employees understand those two factor does not always lead to their agreement, but it does create certainty and a focus.
