Employment law in 2026 is less about new buzzwords and more about execution.
- Can your payroll withstand payday super?
- Are your redundancy processes genuinely defensible?
- Do your contracts still do what you think they do?
This year’s legal landscape (as a run on from last year) is exposing weak systems and outdated assumptions. Below is a practical overview of the key changes HR teams and Employers should be actively managing in 2026.
1. Payday Super
What’s changing: The Australian Government has announced that, from 1 July 2026, employers will be required to pay Superannuation Guarantee contributions in line with wages, rather than quarterly.
Timing mechanics: The Australian Taxation Office explains the reform as “payday superannuation” and outlines that the change is intended to commence from 1 July 2026, with obligations tied to amounts being received by the fund within a short timeframe after payday.
Why HR and Employers should care: This is primarily a payroll and cashflow reform, but it increases compliance visibility and underpayment risk if payroll processes are not stable (especially for variable hours, allowances, backpay, and termination payments that affect Superannuation Guarantee calculations). The Fair Work Ombudsman also flagged Payday Super as a key upcoming change for employers.
Action checklist (now):
- Confirm whether your payroll platform can automate Superannuation Guarantee per pay run and reconcile fund receipt timeframes.
- Re-map pay events (bonuses, commissions, leave cash-outs, terminations) so Superannuation Guarantee treatment is consistently applied.
2. Gender equality target-setting for large employers (500+ employees)
What’s changing: New laws require employers with 500 or more employees to select 3 gender equality targets from a prescribed menu and then achieve or improve against them.
When it bites: Workplace Gender Equality Agency (WGEA) states that targets are selected when lodging the Gender Equality Report in 1 April to 31 May 2026 (for the relevant reporting cohort).
Action checklist:
- Identify whether you “directly employ” 500+ staff (including corporate group considerations described by WGEA).
- Begin internal baselining: workforce composition, pay gap drivers, recruitment and promotion pipelines, flexible work uptake, and leadership accountability.
3. Paid Parental Leave increases
What’s changing: The maximum number of government Paid Parental Leave Pay days increases again in 2026.
- 1 July 2025 to 30 June 2026: 120 days (24 weeks)
- From 1 July 2026 onwards: 130 days (26 weeks)
HR and Employer implications: This affects leave planning, return-to-work pathways, parental leave policy alignment (employer-funded vs government PPL), and manager capability around extended absences.
4. Flexible working arrangement clarity
As Employers look ahead to 2026 and consider increasing office based attendance, it is critical that decisions about flexible work are not implemented through broad, one-size-fits-all mandates. Recent Fair Work Commission decisions in 2025 have reinforced that flexible working requests must be assessed on their individual merits.
The Commission has made it clear that employers are required to do more than simply respond to a request. They must engage in a genuine process that weighs the employee’s circumstances against the operational needs of the business.
Key lessons from 2025 decisions
Recent Fair Work Commission authority highlights that:
- Employers must meaningfully consult with employees, properly consider the request, and turn their minds to the impact on the employee if the request is refused;
- A request to work from home can only be refused where the employer can establish reasonable business grounds, supported by evidence rather than general preference or policy position (Chandler v Westpac [2025] FWC 3115); and
- Where an employee’s request is closely connected to their personal circumstances, such as caring responsibilities or health-related needs, this will be a relevant consideration if the refusal is challenged before the Commission (Terry Hutchinson v Cleanco Queensland Ltd [2025] FWC 2887).
What this means for HR and Employers
In practical terms, employers should approach flexible working arrangements on a case-by-case basis. Decisions should be underpinned by documented consultation, a clear assessment of operational impacts, and well-articulated business reasons. This approach will place organisations in a stronger position if decisions are later scrutinised by the Fair Work Commission.
5. Redundancy and Restructure obligations
Recent High Court authority has sharpened the focus on what employers must do before proceeding with redundancies. The decision in Helensburgh Coal Pty Ltd v Bartley [2025] HCA 29 makes clear that redundancy is no longer assessed by looking only at whether a role disappears.
The High Court confirmed that, when determining whether a redundancy is genuine, it is open to the Fair Work Commission to examine how an employer organises and deploys its workforce more broadly. This includes considering whether changes could have been made to the way work is performed, rather than simply removing positions.
A critical aspect of the decision is the expanded lens applied to redeployment. Employers are required to actively consider whether alternative work exists across the business before finalising redundancies. This assessment is not confined to vacant employee roles, but extends to the way work is sourced and performed, including the use of contractors, labour hire arrangements and outsourced services.
What this means for HR and Employers
Redundancy decisions now demand a rigorous and well-documented redeployment analysis (in practical terms, a business plan). Employers should be able to demonstrate that they have:
- Considered redeployment opportunities across the organisation as a whole
- Examined how work is allocated, including non-employee arrangements
6. Set-off clauses, record keeping requirements and compliance risks
Recent Fair Work Commission proceedings involving Coles and Woolworths (noting that those matters may well be appealed) have brought renewed attention to payroll compliance failures and the limits of relying on annualised salary and set-off arrangements.
The decisions reinforce that paying a salary above the minimum rate does not, of itself, discharge an employer’s obligations under a modern award or enterprise agreement. Accurate systems and defensible records remain critical.
Key compliance principles highlighted
The cases (Fair Work Ombudsman v Woolworths Group Limited; Fair Work Ombudsman v Coles Supermarkets Australia Pty Ltd; Baker v Woolworths Group Limited; Pabalan v Coles Supermarkets Australia Pty Ltd [2025] FCA 1092) underline that:
- Contractual salaries cannot be used to retrospectively balance or offset award or agreement entitlements across multiple pay periods;
- Where overtime, penalty rates or other loadings are enlivened under an award or enterprise agreement, employers are required to keep proper time and wages records, even where employees are paid an annual salary;
- Records must be capable of ready production and inspection, with published rosters or raw clocking data alone falling short of this requirement; and
- Payroll, rostering and time-keeping systems must be able to demonstrate when award or enterprise agreement entitlements are triggered by reference to actual hours worked.
What this means for HR and Employers
Employers should proactively review their payroll and time-recording frameworks to ensure they can generate precise, pay-period-specific data. This capability is essential not only to meet statutory record-keeping obligations, but also to minimise exposure and respond effectively to any future underpayment claims or regulator scrutiny.
7. Review of the National Employment Standards (NES)
What’s happening: A Parliamentary inquiry has been launched to examine the operation and adequacy of the NES, including whether the standards continue to meet the needs of workers, employers and the broader economy.
The inquiry page also publishes submission details and timelines (including a submission due date).
Why HR and Employers should care in 2026: Even if changes do not commence immediately, the review is a strong signal that core minimum standards may be reconsidered. HR leaders should monitor outcomes because NES settings flow through contracts, policies, payroll rules and bargaining.
8. Proposed non-compete clause bans
Government is currently consulting on reforms to:
- Ban non-compete clauses for low- and middle-income workers
Public reporting and government commentary indicate the reform is intended to commence in 2027 (subject to legislation).
Practical HR and Employer focus for 2026:
- Identify where your contracts use restraints by default (including junior roles) and what exposure there is if you need to adjust quickly if legislation passes.
- Consider alternative protections that remain lawful (confidentiality, IP protections, narrowly tailored non-solicitation where appropriate) based on evolving guidance once any bill is introduced.
9. SCHADS Award review
What’s happening: The Social, Community, Home Care and Disability Services Award (SCHADS Award) is being impacted by ongoing Fair Work Commission activity, including changes and clarifications around sleepover shifts and broader sector review activity.
Recent developments to note:
- The Fair Work Commission has moved to provide greater clarity about how sleepover shifts are structured and paid.
- Fair Work Ombudsman guidance also addresses sleepovers as separate and distinct periods under the SCHADS Award (as interpreted in relevant decisions).
- Separately, Fair Work Commission material confirms it is conducting gender-undervaluation work across priority awards, and the SCHADS Award remains part of the sector focus
Practical HR and Employer focus for 2026:
- If you employ staff in disability, community services, home care or related sectors, re-check sleepover rostering, pay rules, overtime triggers, and record keeping against the latest guidance and determinations as they come to pass.
Others
We are also expecting new cases on:
- Sexual Harassment
- Workplace Bullying
- Reasonable Management Action
- Overseas directly employed employees
- Contractors
- Casuals and casual conversion
- Psychosocial Risks and Hazards
- Artificial Intelligence in the workplace
- Technology based redundancies and restructures
Employment Law Health Check
South Geldard Lawyers offer a Health Check to Employers, and after the health check will provide a traffic light risk report to get started on tackling the changes.
For a very limited time this health check will be undertaken on an obligation free basis.
You can access the questionnaire here or contact Jonathan Mamaril, Director, South Geldard Lawyers on jmamaril@southgeldard.com.au or 07 4936 9100.
