Five Big Changes To Employment In December 2018 – Can You Name Them All?

Law Year in Review

Changes to the Fair Work Act 2009 (Cth) (FW Act) made up a quarter of all bills passed by the Senate in December 2018. There has also been considerable movement on two other major pieces of Commonwealth legislation affecting employers.

So, it’s time to brush off the cobwebs that might have accumulated over the holiday break, and make sure you and your company are still employment compliant. We have even compiled a checklist for you at the end of this e-brief to make life simpler.

DOMESTIC VIOLENCE LEAVE
Since 1 August 2018 employees covered by an Award have been entitled to access five days unpaid family and domestic violence leave per year. On 12 December 2018 the government amended the FW Act to extend this entitlement to every employee, not just those covered by an Award.

This entitlement applies to all employees, including part-time, casual, and enterprise agreement covered employees. This change applies from 12 December 2018.

This amendment mirrors the changes to the Awards made earlier last year. You can read more about this entitlement here.

ENTERPRISE AGREEMENT REVIEW
Getting an enterprise agreement through the Fair Work Commission (the FWC) just got a whole lot easier. The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 allows the FWC to overlook minor procedural or technical errors when approving an enterprise agreement, if it is satisfied that those errors were not likely to have disadvantaged employees.

What do we mean by ‘minor procedural or technical errors’?  For example, in Peabody Moorvale Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) FWCFB 2042, the employer stapled a bargaining representative nomination form to the Notice of Employee Representational Rights (NERR).[1]  The Union argued that this invalidated the NERR because it was no longer identical to the NERR prescribed by the Fair Work Regulations 2009 (Cth).  The FWC agreed, and as a result the bargaining process had to be started all over again.  Following the recent amendments, the Union would be unlikely to win this kind of argument.

It is hoped that this amendment will resolve procedural inflexibilities, reduce costs for employers, and prevent minor procedural errors or defects in the bargaining process from derailing an otherwise properly conducted bargaining process.[2]

FOUR YEAR REVIEW
Until 1 January 2019 the FWC was required to conduct reviews of the Modern Awards every four years. Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 did away with this requirement. Whilst not an amendment that will affect your company directly, this will free up resources for the FWC and hopefully speed up processing times for other matters in the Commission.

MODERN SLAVERY
From 1 January 2019 all companies, Australia wide, with consolidated annual revenue of $100 million (AUD) have to report annually on the risks of modern slavery in their operations and supply chains, the action they have taken to address those risks, and the effectiveness of these steps.

Companies that fail to file this report will not be subject to any penalties, however, the reports will be available on a central register, making it possible for non-government agencies to “name and shame” those corporations that haven’t complied with this requirement.

The first statements are due to be filed by 30 June 2020.

New South Wales introduced its own piece of modern slavery legislation on 21 June 2018, which applies to any business[3] that has employees in NSW – irrespective of where the business itself is located. The legislation and its explanatory note does not go into any detail about the meaning of “having employees in the State.”[4] It is reasonably clear that this would cover employment contracts formed and performed in NSW, but it may also cover ACT employers that send their employees into NSW to perform work either consistently or periodically.  The legislation requires companies with an annual turnover of more than $50 million (AUD) to produce a Modern Slavery Statement. Unlike the Commonwealth legislation, there is a penalty of up to $1.1 million for not preparing or publishing a Statement, or providing false and misleading information in the Statement.

WHISTLEBLOWING
After sitting on the legislation since March 2018, the Senate finally approved a raft of amendments to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 on 6 December 2018. The legislation will now return to the House of Representatives, and, if passed in the same form, receive royal assent.

Why is this legislation important? It provides even greater protections for employees blowing the whistle on their employer and, makes it an offence for public companies and large proprietary companies to not have a whistleblower policy.  At this stage it seems likely to take effect from 1 July 2019.

Currently, a protected disclosure can only be made in respect of an offence or contravention of the Corporations Act or other applicable industry regulatory legislation. Under the new legislation, a protected disclosure can be made of any information concerning misconduct, or an improper state of affairs or circumstances in relation to a company or its related body corporates.  It is important to note that a protected disclosure does not include personal work-related grievances.

This legislation also entitles an eligible whistleblower to protection of their identity and protection from victimisation. It will be an offence to disclose the identity of a discloser without their consent. It will also an offence to engage in conduct causing detriment to a person due to a belief or suspicion that any person made, or proposed to make a qualifying disclosure (for example dismissing someone from their employment).

A discloser can seek monetary compensation for contraventions of these protections and the Australian Securities and Investment Commission can seek penalties of up to $10.5 million, 3 times the benefit or detriment avoided, or 10% of the company’s annual turnover (up to $210 million), whichever is the greater.

This legislation will require public and large proprietary companies to implement a policy addressing:

  • protections available to whistleblowers;
  • to whom disclosures can be made, and how they may be made;
  • how the company will support whistleblowers and protect them from detriment;
  • how the company will investigate disclosures that qualify for protection;
  • how the company will ensure fair treatment of employees who are mentioned in a disclosure or to whom the disclosure relates; and
  • how the policy will be made available to employees and officers of the company.

ACTION LIST
We have touched on several issues in this e-brief, so to make things simpler we have compiled a checklist of ‘action points’ for you:

  • Family & Domestic Violence Leave
    • Do you have a leave policy? If not, give us a call to find out about the benefits of having one. If so, get it amended to cover the changes to the National Employment Standards (we can help with this).
    • Let supervisors and managers know about this change.
  • Modern Slavery
    • Do you have employees that work in NSW?
    • Is your annual turnover greater than $50 million?
    • Do you know what to put into a Modern Slavery Statement at the end of this financial year?
  • Whistleblowing
    • Are you a listed company?
    • Are you a large proprietary company?
    • If so, give us a call to talk to us about our template Whistleblower Policy.

If you have any questions about the issues we have outlined above, please call our Employment & Industrial Relations team on (02) 6279 4366.

For more information contact the Employment & Industrial Relations Team:

Alisa Taylor               Partner                        Employment & Industrial Relations
(02) 6279 4388                                                 Alisa.Taylor@MVLawyers.com.au

William Ward             Special Counsel      Employment & Industrial Relations
(02) 6279 4366                                                  William.Ward@MVLawyers.com.au

Kirsty Easdale            Associate                  Employment & Industrial Relations
(02) 6279 4441                                                   Kirsty.Easdale@MVLawyers.com.au


[1] The NERR is the document that the employer must issue to formally start the bargaining process.
[2] Productivity Commission, Workplace Relations Framework, Final Report, Canberra (2015), 665.
[3] That supplies goods and services for profit or gain.  Charities / NFPs are not caught.
[4] Modern Slavery Act 2018 (NSW), 24 (1).