Employment Law Update: Coming up in 2026

From superannuation and parental leave changes, to new flexible work rights, FWO enforcement activities and states’ legislating in the IR space, here are five of the key developments that should be on every employer’s radar. 

Payday Super - Commencing 1 July 2026 

From 1 July 2026, employers must pay superannuation guarantee contributions following the payment of salary and wages, rather than quarterly.  

Contributions must reach the employee’s nominated fund within seven business days of the relevant salary payment. This itself presents a challenge for some platforms, funds and employers. 

Payday Super introduces a new ‘qualifying earnings’ concept to determine the contribution base, and late payments will attract the superannuation guarantee charge. The ATO has released draft guidance on its compliance and risk-based approach and is continuing to refine it ahead of commencement. You can find it here.  

If not already, employers should be reviewing their payroll systems, supporting procedures and testing (and the ATO guidance) to ensure that they are ready for 1 July 2026.  

Flexible Work – Requests and Rights  

Recent Fair Work Commission decisions have clarified the Commission’s thinking on disputes over flexible work requests. Karlene Chandler v Westpac Banking Corporation 2025 FWC 3155 reinforced that following the process and considering the actual substance of the request and the situation is critical for employers. It is not enough to rely on and apply policies.  

The FWC ordered that the employee's request be granted. Westpac’s main failings in this matter were that it did not respond within the required 21-day time limits and its refusal lacked supporting evidence.  Reasons that were provided by Westpac were also general, and there was no real engagement with Ms Chandler on the request.  

It’s clear from this FWC decision that employers wishing to refuse a flexible work request need to not only follow the correct process and properly consult with the employee but provide supporting evidence to justify their reasons for refusal.  

Meanwhile, the Greens have introduced a Bill proposing a universal right for all employees to request up to two days working from home per week, with a significantly higher bar for refusal. In effect, a refusal will only be valid where it is impractical to meet the ‘inherent requirements of the role’. The Bill is currently awaiting the committee’s report back, which is expected shortly.  

At the same time, in an election year, the State Government in Victoria has announced it is going to legislate similar rights to work from home from 1 September 2026, by amending the existing Equal Opportunities Act 2010 (Vic).  No details yet on exactly how this will work or the new legal tests in practice, but at face value it will mean an employer must accommodate employees' reasonable requests to perform work from home and make it unlawful to refuse. The government has also indicated it does not intend to exempt small businesses from the new requirements.  

Paid Parental Leave - 26 Weeks 

The Government’s Paid Parental Leave scheme increases to 26 weeks from 1 July 2026, completing a multi-year expansion of the scheme's entitlements. To promote flexibility for families, four weeks are now reserved for each parent on a ‘use it or lose it’ basis, and couples may take up to four weeks concurrently. Separately, employers must also now honour paid parental leave in the event of a stillbirth or infant death (following the passage of the Fair Work Amendment (Baby Priya’s) Bill in November 2025).  

Employers should review and update their parental leave policies and ensure payroll systems and HR practices accommodate the changes and increased entitlements. 

Fair Work Ombudsman - Enforcement Activities 

The Fair Work Ombudsman’s 2024–25 annual report confirms an intensifying enforcement approach. The FWO recovered over $358 million in unpaid wages for 249,000 workers, initiated 73 litigations, and secured its largest ever court-ordered penalty ($15.3 million against an employer for deliberate underpayment of vulnerable workers). Half of the FWO’s eight enforceable undertakings for the year 2025 were entered into with universities.  

The FWO’s priority areas, being the focus on industries that are at significant risk or demonstrate a history of systemic non-compliance, for the coming year include: universities, aged care services, agriculture, building and construction, disability support, large corporates and fast food, restaurants and cafes.  

The FWO has also established a dedicated Criminal Investigations Branch, following the introduction of the criminal wage theft offence in January 2025.  

Victoria restricts use of NDAs in sexual harassment at work matters 

Victoria passed the Restricting Non-Disclosure Agreements (Sexual Harassment at Work) Bill 2025, (currently expected to commence on 1 July 2026). To recap: the legislation was in response to the Victorian Ministerial Taskforce on Workplace Sexual Harassment which recommended that the Victorian Government introduce legislative amendments to restrict the use of NDAs in relation to workplace sexual harassment cases. 

For an NDA to be enforceable certain preconditions must be met. In brief these are: 

1. the complainant must request the NDA - and similarly the employer cannot exert undue influence or pressure on a complainant to enter into an NDA; 

2. before entering into it, the complainant must be given a copy of an “information statement” which will set out the complainant’s rights, including to seek legal advice on the NDA and their rights to terminate the NDA; 

3. the complainant must have at least 21 days to first consider the NDA (a cooling off period);

4. the complainant must sign a form acknowledging the preconditions have been met.  

The new law will prohibit NDAs that purport to prevent a complainant from disclosing “Material Information” to an Australian legal practitioner, a medical practitioner, the police force, a friend or family member who has agreed to confidentiality, or a Minister of Religion. 

Material Information covers the identity of the respondent and details relating to the alleged or substantiated conduct. Complainants however, can be prohibited from sharing "Protected Information” which covers an individual respondent's identity where under the age of 18, and the amount of compensation received (other than to Centrelink, a financial advisor or tax agent).

We recommend Victorian employers, before 1 July, review their current HR practices and training and supporting documents like settlement agreements and deeds, to ensure they are compliant with the new requirements. 

If you would like to know more about the issues raised in this article, please contact our partners:

Mark Flaherty  +61 423 576 052

Grace Brunton-Makeham  +61 424 839 981

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This is commentary published by Makeham Flaherty for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content is also subject to change. A person listed may not be admitted as a lawyer in all States and Territories.

Makeham Flaherty 2026.