Articles

In this issue, we examine the Federal Court’s decision in B.M.D. Constructions Pty Ltd v Construction, Forestry and Maritime Employees Union (No 3) [2026] FCA 169, which offers practical guidance for principal contractors on managing union right of entry visits and building an evidentiary record for enforcement action. We also consider new NSW legislation imposing expanded WHS obligations on employers who use digital work systems (including algorithms, AI and online platforms) and the significant right of entry powers that accompany those obligations. Finally, we look at the limits of discretionary bonus clauses and the legal risks that arise where a refusal to pay is arbitrary or unreasoned.

The NSW Court of Appeal in Victorian Xray Group v Malouf [2026] NSWCA 5 has reinforced important protections for solicitors, confirming unsuccessful proceedings are not necessarily indicative of negligence. The critical test is whether a reasonably careful solicitor would have concluded the case was “hopeless and doomed to fail” with the information available at the time of filing a pleading – not with the benefit of hindsight.

In this issue, we examine the Fair Work Commission’s significant Full Bench decision to vary all modern awards following the Full Court’s ruling on workplace delegates’ rights, and what the corrected award terms mean for employers managing delegate representation, communication and training entitlements. We also explore recent Federal Court enforcement action highlighting the limits of union right of entry, including practical guidance for site occupiers on managing entry requests lawfully and safely. Finally, we consider proposed federal reforms that would introduce a minimum right to request to work from home, and how these potential changes could reshape employer obligations in responding to flexible work requests.

Australia’s merger control regime will undergo a significant overhaul in 2026, with mandatory notifications set to commence come 1 January. The reforms replace the previous voluntary system, requiring the ACCC to clear transactions that meet certain thresholds. The new regime materially affects how mergers are planned, timed and executed. This article explains what’s changing, why it matters, and how businesses should prepare now.

In Queensland, during the pre-litigation stage of personal injuries claims, one of the banes of defendant lawyers’ lives is responding to lengthy requests for disclosure, many of which seem to increasingly extend beyond the ambit of the disclosure obligations under the Personal Injuries Proceedings Act 2002 (the PIPA). This may partly be explained by the seemingly more liberal interpretation of the disclosure obligations given by the courts in recent times. There are essentially two types of disclosure obligations under the PIPA: a positive obligation to disclose documents; and a reactive obligation to disclose information upon request. This article examines the scope of the obligation to disclose documents ‘about the incident’ and the scope of that phrase.

In this issue, we examine the Fair Work Commission’s recent decision in Karlene Chandler v Westpac Banking Corporation [2025] FWC 3115, in which the FWC ordered Westpac to grant a flexible working arrangement after finding the bank had not met its statutory obligations when refusing the request. We also look at the upcoming festive season and provide a timely reminder of the risks, responsibilities and practical steps employers can take to ensure employees are protected at Christmas functions. Finally, we outline the introduction of strengthened paid parental leave protections and what these increased entitlements mean for employers.

The High Court of Australia has recently clarified when loss first arises in professional negligence claims involving defective binding financial agreements (BFAs). In R Lawyers v Mr Daily [2025] HCA 41, the Court held that a client does not suffer compensable loss at the time a defective BFA is executed because any benefit remains contingent until separation. The limitation period therefore did not commence until the marriage broke down. However, the Court also confirmed that the plaintiff’s only proven loss was a modest sum of wasted legal fees, and that his broader “loss of a better outcome” claim failed for want of evidence. In this article Partner Greg Stirling, Partner Mark Brookes and Senior Associate Joel White, examine the Court’s reasoning on contingent loss, its rejection of the “damaged asset” analogy, and the evidentiary hurdles for proving a better financial outcome.

As observed in the prior edition of Constructive Notes, “Judicial consideration of London Market Design (DE) Clauses”, commonly contract works policies utilised in major projects (whether written locally or by United Kingdom (UK) underwriters) are incorporating an exclusion from one of two sets of clauses derived from UK industry bodies. There had not until relatively recently been any reported judicial consideration of the operation of the other set of clauses (London Engineering Group (LEG) Defects Wording). A 2015 decision by the Court of Appeal for British Columbia provided the first considered judicial analysis of the operation of an LEG 2/96 Defects Exclusion, notwithstanding a large question mark over the status of the decision. More recently, US courts have handed down judgments in two cases which provided the first judicial consideration of the LEG 3 Exclusion. These cases are analysed in this newsletter by Partner Patrick Mead along with their likely impact in Australia.

Considering registering your trade mark but don’t know if it will be worth it? Partner Peter Motti and Solicitor Emily Cooper highlight the key benefits of registering your business’ trade mark and the potential repercussions if it is neglected.

In this issue, we examine the Federal Court’s landmark $90 million penalty against Qantas for unlawfully terminating 1,820 ground staff during the COVID-19 pandemic, the High Court’s decision in Helensburgh Coal Pty Ltd v Bartley clarifying the Fair Work Commission’s authority to assess the genuineness of redundancies, and the Federal Court’s ruling on the limitations of contractual set-off clauses and the reinforcement of record-keeping obligations for employers.

While insurance coverage for material damage loss on a project is necessarily determined by reference to the particular project policy wording, increasingly contract works policies utilised in major projects (whether written locally or by United Kingdom (UK) underwriters) are incorporating exclusions from one of two sets of clauses derived from UK industry bodies. There is a limited body of jurisprudence in relation to the interpretation of one set of these clauses in the UK (London Market Design (DE) Clauses). These cases are analysed in this newsletter.

In this article, Partner Milton Latta discusses a recent NSW Court of Appeal decision in which an important qualification was applied when assessing whether, in a labour hire context, there had been a transfer of vicarious liability from the actual employer to the host employer. The article examines how, as a result of this qualification, it may now be harder for an employer to transfer vicarious liability to the host.