New IR Act amendments place greater burden on employers in victimisation cases

The Industrial Relations and Other Legislation Amendment (Workplace Protections) Act 2025 (NSW), assented to in July this year, introduces significant reforms to workplace laws in New South Wales. Among the most significant are the amendments to the victimisation provisions of the Industrial Relations Act 1996 (NSW) (Act). 

New employee protections and a new approach to enforcement

Under the Act, victimisation occurs when an employee (including a prospective employee) is subjected to a detriment because of a protected reason.

The amendments add matters for which an employee or prospective employee must not be victimised by an employer or industrial organisation. It is now unlawful to victimise an employee or prospective employee on new grounds, including because they:

• make a complaint or inquiry about their employment

• make a complaint or inquiry to a public authority about their employer, including about matters other than about their employment

• engage or propose to engage in industrial organising activities

• are entitled to a benefit or claim a benefit under the Workers Compensation Act 1987 or the Workplace Injury Management and Workers Compensation Act 1998, or in relation to other entitlements for a workplace injury

• have a characteristic that is protected from discrimination under the Anti Discrimination Act 1977

• have a role or responsibility under industrial relations legislation or an industrial instrument.

The provisions relating to enforcement of victimisation provisions have also been amended and enhanced as follows:

• for the presumption of victimisation to be rebutted, the Commission must be satisfied that, objectively, the alleged matter was not a substantial and operative reason of the detrimental action (dismissal, for example)

• when determining if the alleged matter was not a substantial and operative cause of the detrimental action, the Commission may consider conscious and unconscious factors.

In the Second Reading speech, the reasons for the introduction of an objective test were explained as: 

‘in response to the 2012 decision of the High Court of Australia in Board of Bendigo Regional Institute of Technical and Further Education v Barclay. That decision related to the reverse onus of proof under general protections provisions of the Commonwealth’s Fair Work Act and overturned a previous decision made by the full Federal Court. Despite the decision made by the High Court, the proposed amendment clarifies that the reasoning of the majority of the full Federal Court handed down in 2011 is the preferred test when determining if the presumption has been rebutted under the Industrial Relations Act.’

Conscious and unconscious factors in decision-making

Under the new and expanded victimisation provisions, the role of the decision maker and the chain of decision making will be pivotal when the Commission determines whether detrimental action has been taken unlawfully.

When addressing victimisation claims, decision makers must be aware of both conscious and unconscious factors that may influence their decisions.

Demonstrating the conscious factors that have been taken into account will generally be straightforward, assuming factual information and a procedurally fair process (that ensures parties have an opportunity to make submissions and respond to matters) have been used.

Where it will be undoubtedly challenging is how employers can demonstrate what unconscious factors they have taken into account when decisions are made that may have a detrimental outcome for an employee.

Unconscious factors in decision making are mental processes that influence our choices without us being aware of them. These invisible forces can shape preferences, judgments, and actions without the decision maker realising it. Examples of these are unconscious biases related to gender, age, ethnicity, or other characteristics that can affect how evidence is interpreted or how parties are perceived. In addition, prevailing workplace cultures or societal norms might influence perceptions.

But lack of insight into one’s motives is no defence. In the Barclay case cited above, the Court said of the employer’s actions: “the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent”.

Therefore, the real reasons don’t even need to be appreciated or understood by the decision maker. So short of getting a hypnotist to prove there were no unconscious factors influencing a decision, how can an organisation possibly address this in their decision making?

First, it should be deliberate about who makes decisions. To rebut the presumption and to address unconscious factors, the organisation may need to take a conflict of interest approach.

Let’s look more closely at this.

Implications for state government employers

The expanded victimisation provisions under the Act reflect a broader shift toward accountability in NSW workplaces. They offer stronger protections for employees and place a greater burden on employers to justify detrimental actions.

They also offer an enhanced pathway for employees to take, and we expect to see an increase in these types of claims.

For state government employers to defend such claims, we recommend proactive steps, including:

• Always deal with, resolve and close out complaints as soon as possible.

• Do not over-escalate a complaint or inquiry.

• Limit knowledge of a complaint or inquiry to those who need to action it.

• Structure decisions carefully:

  • consider seeking recommendations from those who are not the final decision makers, or whether the

    decision should be left to the final decision maker

  • avoid having conflicted managers involved in or making final calls.

• Document reasons thoroughly: Ensure decision-making processes are transparent and well recorded. Keep detailed notes of meetings, communications, and rationale.

• Train leaders: Help managers and HR professionals recognise protected conduct and understand the risks of unconscious bias.

• Consider outsourcing the decision and having the service provider decide based on objective and documented facts.

Remember that the reverse onus provision means employers must be prepared to defend their actions with evidence, not just assertions.

Understanding these changes and implementing robust decisionmaking processes will be critical to managing risk and maintaining compliance. And when it comes to defending your decisions, be prepared for a rigorous process – because the Commission will want to know not just what you did, but what you were thinking (unconsciously or not) when you did it.

Authors: Linda Mackinlay & Andrew Yahl

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This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.