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7 April 2020
Work Health and Safety Amendment (Review) Bill 2020
April 7, 2020

With the outbreak of COVID-19 being labelled the biggest thing to impact Australia’s workforce, employers would be forgiven for assuming that everything else has been on hold.

That is not the case and businesses need to be aware of possible legislative amendments to the New South Wales Work Health and Safety Act 2011 (the Act), made by the Work Health and Safety Amendment (Review) Bill 2019 (the Bill). The Bill, if passed, will implement a number of recommendations outlined in Ms Marie Boland’s review of work, health and safety laws (WHS).

It attempts to strike a balance between the objective of maintaining nationally consistent work health and safety regulation and the NSW Government’s goal of reducing risks to workers’ safety.

Key amendments

Category 1 offences

Currently, in order to obtain a conviction for a Category 1 offence (being recklessness), it must be established that a Person Conducting a Business or Undertaking (PCBU) made a conscious choice to take an unjustifiable risk, which resulted in an injury or death of a worker.

If the Bill is implemented, “gross negligence” will be included alongside recklessness as a fault element. This means that it is no longer necessary for a prosecutor to establish that the PCBU made a conscious choice and, consequently, it will become easier to successfully prosecute a Category 1 offence.

Insurance against WHS fines

The Bill will make it an offence, without a reasonable excuse, to provide, enter into, or benefit from an insurance or indemnity arrangement that covers liability for a monetary penalty under WHS laws. This regulates the longstanding common law public policy position that indemnity ought not be available for a criminal penalty.

There will be a transitional provision which provides that a person does not commit an offence for providing insurance or indemnity, or for taking the benefit of such insurance, if the insurance or indemnity was in force before the commencement date of the Bill and any payment made was not in relation to a penalty for an incident that occurred after the commencement date of the Bill.

Increased maximum penalties

The maximum fine for a category 1 breach will instantly increase from $3 million to $3,463,000 and from $600,000 to $692,500 for an officer (or individual who is a PCBU). This will be the first increase in the maximum penalties of WHS law in NSW since the law was harmonised from 1 January 2012.

The Bill will also increase other penalties arising under the Act, for example:

  • All penalties of $50,000 will be increased to $57,500. and
  • all penalties of $100,000 will be increased to $115,500.


Clarity surround manslaughter

While NSW does not appear to be following the other States in implementing specific industrial manslaughter provisions, the Bill will insert a note into Part 2 of the Act to make it clear that in certain circumstances the death of a person at work may also constitute manslaughter under the Crimes Act 1900 and may be prosecuted under that Act.

Choice of training

The Bill clarifies that health and safety representatives (HSRs) are entitled to choose their course of training and that the relevant PCBU and the HSR will consult each other about, and agree on, the reasonable costs associated with the training.

Investigative powers of workplace inspectors

The Bill will amend inspector’s powers under the Act to allow an inspector who has entered a workplace to exercise their section 171 investigative powers for up to 30 days.

Timeline for regulators to start a prosecution

The Bill will extend the time in which a person can request a regulator to bring a prosecution from 12 months to 18 months.

Application of the Act to dangerous goods and high-risk plant

The Bill will amend the Act to clarify that the Act applies to dangerous goods and high-risk plant that is stored, operated or used at premises that are not a workplace or for use in carrying out work.

When we will see these changes implemented?

As of 24 March 2020, the Bill had its first reading before the Legislative Council. However, given the uncertainty that follows COVID-19, the changes may not be implemented until late 2020.

These changes will be significant and businesses should use any down time created by the impact of COVID-19 upon their business to review their safety management systems and assess the impact of the proposed changes.

 

John Makris
Partner
+61 2 9169 8407
john.makris@kingstonreid.com

Erica Elliott
Special Counsel
+61 2 9169 8409
erica.elliott@kingstonreid.com

George Stent
Paralegal

2 April 2020
COVID-19 and Safety in Your Workplace
April 2, 2020

What Should you Be Doing?

We all know that the possibility of COVID-19 infection is a real one.

We also know that it is a workplace risk that needs to be managed by employers and Persons Conducting Businesses or Undertakings (PCBUs).

The risk controls we need to develop and implement may be COVID-specific, but the way we go about identifying, assessing and eliminating or minimising them is the same way in which the safety laws require us to tackle any other workplace risks.

So, you should be (at least) doing the following on a regular basis:

1. Comply with Government directives and advice

As a first and minimum step, your business should comply with national and state public health directions relating to COVID-19.

They are available on the Departments’ websites and you should check them frequently to make sure you are working with the most current information.

Current measures you should be taking include:

  • Reducing direct contact between workers and other persons, including:
    • Social distancing of at least 1.5 metres (and 1 person per 4sqm indoors),
    • Barriers or spacing between workstations, seated areas, etc.,
    • Modifying shifts and rosters to reduce peak periods,
    • Supporting flexible work arrangements where possible, including working from home.
  • Reducing environmental exposure, including:
    • Frequently cleaning and disinfecting of high traffic areas and shared surfaces,
    • Providing appropriate cleaning products and instructions for cleaning workspaces,
    • Providing amenities for personal hygiene and infection control,
    • Inspecting and reviewing air conditioning and ventilation systems.

2. Keep consulting

Your business must assess the risks of COVID-19 in consultation with workers, particularly when devising and implementing control measures to minimise the spread of the virus.

You should also be consulting with the people with whom you share a duty to keep your workers and workplaces safe, such as building managers, co-commercial tenants and (potentially) landlords.

We’re all in this together.

3. Don’t forget regulator notifications

Remember that PCBUs and employers may have notification requirements to safety regulators where any confirmed or uncontrolled exposure to serious illness, including COVID-19, occurs or where workers are admitted as in-patients in hospital as a result of exposure in the workplace.

4. Make sure what you’re doing is working

We all need to be regularly assessing the effectiveness of what we are doing to contain COVID-related infection risks in the workplace.

Keep up to date with Government advice.

Keep talking to your colleagues and fellow duty-holders.

Our best resources are our public health authorities. Listen to them and do what they tell you to do. The safety regulators are following their guidance and expect businesses and workers to do the same.

Not everyone is coming into the workplace now

That’s just where we are now.

You should be providing clear direction and guidance to workers about what is expected of them in terms of:

  • Knowing when to stay away from the workplace,
  • What they need to do if they become unwell,
  • What symptoms they need to know about,
  • Maintaining a safe working environment at home (we’ve put together a checklist of things to think about and you can access it here).

If people are coming into work you need to make sure that they have access to a hygienic workplace and that they maintain social distancing when they are at work.

Hygienic practices to be reinforced include:

  • Frequent and thorough hand washing,
  • Actively encouraging social distancing (including limiting access to other people in the workplace),
  • Covering mouths while coughing or sneezing,
  • Staying away from the workplace if they are unwell and encouraging them to seek medical advice.

Please remember that some members of your workforce will have different infection risk profiles and you need to pay special attention to keeping them safe.

Workers over 60 and indigenous workers over 50 can be more susceptible to infection and/or less able to fight off the virus if they catch it.

The same goes for people with compromised immune systems or chronic illnesses.

Workers from non-English speaking backgrounds may need access to translated material. Use available pictorial resources to get the message across.

You need to properly assess the risk of infection for your specific workers and that the measures you take to keep them safe are targeted to their specific circumstances.

Also remind workers that they have a duty to take reasonable care for their own health and safety.

The safety laws provide that workers have a right to cease, or refuse to carry out work, if they have a reasonable concern that carrying out work would expose them to an immediate or imminent risk of COVID-19. That worker must, however, remain available to carry out suitable alternative work, e.g., work from home. Where such work is not available, PCBU’s and employers may exercise their rights to ask workers to take leave or stand down workers where appropriate.

On our website you can access our COVID-19 Critical Information for Employers for each State and Territory together with our infographic factsheets.

Are your workers at home OK?

Most of us are working from home and we all know that presents unique challenges that we have to overcome.

Keeping track of workers’ mental health is one such challenge and it needs to be one of your priorities.

Most people are worried about their children, their jobs, their mortgages and rents, whether they are feeling hot or tired because they’re sick and even just how they are going to fill in today and tomorrow.

Keep talking to your workers. Let them know they are being heard and that they are front of mind.

Talk to them about how work will be conducted differently to reduce infection risk and facilitate flexibility and consider work modifications to help workers manage their workload and family and carer responsibilities.

Give them information about their entitlements that they can access where they are caring for family members or become unwell with COVID-19.

Be open and transparent about how COVID-19 risks may impact upon their working arrangements.

Remind your workers that they are valued and that what happens to them and their families matters to all of us.

Encourage discussions to let workers to share and learn from others.

Make EAP and support services available and let your colleagues know how to access them.

Encourages workers to stay connected through regular communication, e.g., by phone or videoconferencing. Consider practical measures such as daily catch-ups.

Be aware of behaviour and communication changes in workers and recognise signs that may indicate someone is struggling.

Encourage work breaks and physical activity as permitted by law.

There’s lots we can do to help each other, so let’s get out there and do it.

We have prepared an example Checklist for Working at Home which can be adapted to your specific circumstances to makes sure you and your workforce are assessing the risks of working at home.

What happens if a colleague is infected?

There are no specific provisions in the safety legislation that deal with when a PCBU or employer may direct a worker to stay away from their usual place of work.

PCBUs and employers should, however, ensure that a worker confirmed to have COVID-19 does not return to work while they are infectious or as otherwise directed by health authorities.

Make sure that you have consulted with your workers about what you’ll each do if someone at work becomes infected with COVID-19.

This isn’t about workplace politics or IR issues. This is about all of us doing our part to make sure we stay safe.

Prepare and follow your Pandemic Plan

Businesses should also develop a pandemic plan in consultation with workers.  That plan should cover:

  • Prevention and preparedness,
  • Response – initial action,
  • Response – targeted action, and
  • Recovery

Please see our COVID-19 page on our website for further information on pandemic plans.

Please contact us if you have any questions as to how to address COVID-19 risks in your workplace.

SYDNEY
John Makris
Partner

+61 2 9169 8407
john.makris@kingstonreid.com
MELBOURNE
Dominic Fleeton
Special Counsel
+61 3 9958 9619
dominic.fleeton@kingstonreid.com
PERTH
Michael Stutley
Partner
+61 8 6381 7060
michael.stutley@kingstonreid.com
Erica Elliott
Special Counsel
+61 2 9169 8404
erica.elliott@kingstonreid.com
   
31 March 2020
Clerks Award variation gives COVID-19 impacted employers additional flexibility
March 31, 2020

On 26 March 2020, an application to vary the Clerks – Private Sector Award 2010 (Clerks Award) was made jointly by the Australian Chamber of Commerce and Industry and the Australian Industry Group (Application).

The Application was supported by the Australian Council of Trade Unions and the Australian Services Union, and heard on an urgent basis and the Full Bench of the Fair Work Commission (Full Bench) issued its decision and determination varying the Clerks Award on 28 March 2020 which may be viewed in full here.

From 28 March 2020, a new Schedule I will be inserted into the Clerks Award. Schedule I will remain operative only until 30 June 2020, but this period can be extended on application to the Fair Work Commission.

What are the variations?

The temporary variations are substantially directed to providing increased flexibility around how work may be performed, and how employees may take or be directed to take annual leave as businesses grapple with the impacts of COVID-19.

These temporary variations are:

  • An employer may direct employees to perform all duties within their skill and competency, regardless of classification.
  • The minimum period of engagement of part-time and casual employees who are working from home with the agreement of their employer may be reduced from 3 hours to 2 hours.
  • The spread of ordinary hours for dayworkers (being employees other than shift workers) working from home has been extended to 6am and 11pm Monday to Friday, while ordinary hours for Saturday will remain as between 7am and 12.30pm Saturday.
  • An employer and its full-time and part-time employees in a workplace or section of a workplace may agree, by ballot with 75% approval by employees, to temporarily reduce the ordinary hours of work for a specified period between 28 March 2020 and 30 June 2020, but must not be reduced to fewer than 75% of the full time ordinary hours for a full time employee, or 75% of the part-time employee’s agreed hours immediately prior to the implementation of reduced hours. The employee’s hourly rate must be maintained but the weekly wage will reduce by the same proportion.
  • An employer cannot unreasonably refuse an employee’s request to engage in reasonable secondary employment, and must consider all reasonable employee requests for training, professional development and/or study leave.
  • Employers and individual employees can agree to take up to twice as much annual leave at a proportionately reduced rate for all or part of any agreed or directed period away from work, including a close-down.
  • An employer may direct employees, subject to considering the employee’s personal circumstances, to take any annual leave that has accrued by giving at least 1 weeks’ notice or any shorter notice period agreed. An employee must not be left with less than 2 weeks accrued annual leave after taking the leave.
  • An employer may, for a period between 28 March 2020 and 30 June 2020 require an employee to take annual leave as part of a close-down, or unpaid leave if the employee has insufficient accrued annual leave for all or part of the close-down, upon at least 1 weeks’ notice or a shorter period that may be agreed.
  • All unpaid leave will count as service for the purposes of relevant award and NES entitlements.

Could other modern awards be varied in a similar manner?

Yes, on 30 March 2020, Restaurant & Catering Industrial, with the consent of the United Workers Union and the Australian Council of Trade Unions made an application to temporarily vary the Restaurant Industry Award 2010 to provide for temporary flexibilities to assist businesses and employees to respond to mandatory closures of sit down restaurant businesses.

This application comes after temporary variations were made to the Hospitality Industry Award 2010 on 24 March 2020.

Given the current extraordinary impacts that the COVID-19 pandemic has had on business, it is likely that further applications with bipartisan support between employer and employee organisations will be favourably received by the Commission.

Katie Sweatman
Special Counsel
+61 3 9958 9605
katie.sweatman@kingstonreid.com

5 March 2020
Does your Business Have a Pandemic Plan?
March 5, 2020
Six recommendations for employers dealing with the coronavirus outbreak

The coronavirus outbreak is causing alarm and anxiety worldwide. It need not. However, it seems inevitable that your workplace will be affected by the virus at some point, either directly or indirectly.

As the World Health Organisation’s (WHO) Director General remarked on 3 March 2020, “COVID-19 spreads less efficiently than flu, transmission does not appear to be driven by people who are not sick, it causes more severe illness than flu, there are not yet any vaccines or therapeutics, and it can be contained – which is why we must do everything we can to contain it. That’s why WHO recommends a comprehensive approach”.

As an employer, if you have not yet done so, it is time to develop a comprehensive approach to COVID-19 and future epidemics. This requires at the least, a review of your company’s strategy, policies, and procedures regarding the potential impact on your workforce, and an understanding of your obligations if employees are unable to attend the workplace. At the end of this Insight is a quick guide for your reference.

Here, we discuss the duties of employers during public health outbreaks, as well as provide six recommendations for companies and HR managers preparing for the impact of coronavirus.

  1. Understand the risk to your workplace

As with any business continuity risk, the spread of COVID-19 is a pertinent reminder of the importance of understanding how your business might be impacted if a significant number of workers (whether employees or contractors) were unable to attend the workplace.  Does your business have multiple people trained in critical functions to ensure continuity?  Do you have a contingency plan if a large number of employees in a particular part of the business were unable to attend work?

With that said, be alert, not alarmed.  Monitor the Department of Health website for up to date information about travel restrictions and situations in which isolation is recommended.  There is no need for broad isolation of workers who do not fall within the risk categories identified by the WHO and Department of Health.

  1. Work from home

Depending on your location and the spread of COVID-19, your business may need to ask employees to work from home, or your employees may ask to work from home.  Before this strategy is actioned, you should assess whether employees are set up effectively to work from home.

Whether this is requesting all employees apply ahead of time to work from home, allowing meetings to be held via videoconferencing or increasing employees’ flexibility for remote work, reducing face-to-face contact is an excellent measure to mitigate the impact of COVID-19.  With this however, comes a raft of practical implications to consider.

It may be for instance that at present only some staff have the technological capacity to work remotely.  Considering what is needed to expand this capacity will involve consideration of available technology, cost factors and work, health and safety implications.  How will the business manage the increase in demand to ensure workers’ home environments are adequate and safe?  What directions or policies need to be implemented in addition to any existing processes to facilitate a larger portion of your workforce working remotely?

  1. Clean clean clean!

The routine cleaning of the workplace should be increased where needed.  It is recommended that all frequently touched surfaces such as workstations, desks and doorknobs be routinely and thoroughly cleaned. Have a discussion with your Company’s cleaning contractors to ensure they are following recommended Department of Health protocols.

As COVID-19 is spread most readily from coughing or sneezing, increased cleaning of common areas may decrease the possibility of infection.  Similarly, workers should be educated and reminded of the need for them to maintain strict hygiene standards.

  1. Formalise your processes

It is now time to formalise your processes for requiring employees to remain off work if they have been affected by the virus or have travelled to virus affected areas.  This formalisation should include requirements for employees to advise if they have travelled to affected areas or if they have been in contact with a person diagnosed with COVID-19.

Full time and part time employees who are required to be quarantined would likely be entitled to access any accrued paid personal or sick leave.  Once this entitlement is exhausted, then they may be able to access other forms of paid leave or unpaid leave.

Where an employee requests to stay off work, they will need to make a request to work from home or take some form of paid or unpaid leave.  These requests should be subject to your normal leave application processes. It may be necessary to clarify the company’s policy in instances where the company directs staff to not attend work.  The capacity to stand employees down without pay under the Fair Work Act and under enterprise agreements will only arise where there is an absence of useful work for employees to perform, and not where an employee is not ready, willing or able to attend to work because of COVID-19.

In activating relevant procedures, care should be taken to ensure that workplace leaders responses to employees affected, or potentially affected, by COVID-19 do not contravene anti-discrimination legislation.

  1. Monitor travel requirements

It is strongly recommended the companies limit employee business travel to areas where COVID-19 is present.  Not only will this protect your employees’ safety, but it will also prevent loss of productivity due to quarantine or employee exclusion from the workplace after travel.

  1. Train your supervisors

Lastly, we recommend your business consider training supervisors on the implications of COVID-19 and providing them with ongoing information updates as appropriate to ensure consistency of messaging, and avoidance of unnecessary panic.  In particular, workplace leaders should have access to information on infection control and other measures that may or may not be being taken by the company, and should know who to contact within the company to report exposure to the virus.

Your employees may be concerned about COVID-19 and its impact on their health and the health of the business.  This could have varying impacts on mental health and wellbeing.  One of the best strategies for mitigating against these potential impacts is to ensure that employees are well informed about the potential impact of COVID-19 upon them, and are taking appropriate and proportionate steps to protect themselves from risk of infection.

Businesses need to be as best prepared as they can be in the face of COVID-19, and these 6 recommendations are only the starting point.

Should this article have raised any concerns for you, we invite you to contact Kingston Reid for further advice.

 

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

George Stent
Paralegal

2 March 2020
The Trials of Probationary Periods
March 2, 2020

There’s a week to go on a probationary period and concerns get raised for the first time that someone might not be right for the role…. Sound familiar? The NSW Industrial Relations Commission (IRC) has sounded a warning for the NSW public sector to assess the conduct and performance of new employees during the probationary period, and ensure they confirm the appointment of those employees, or dismiss them, prior to the probationary period ending.

What happened?

The practical implementation of probationary periods has to be considered by NSW public service employers in the wake of the IRC decision in Wilson v Industrial Relations Secretary (Wilson). The key takeaway from Wilson is that public service employers concerned about the conduct or performance of a probationary employee must either act to dismiss before the probationary period ends, or extend the period. What happens if neither of these occur? Well, the IRC says that it will be assumed the employee has successfully completed the probationary period. Of course, this means that the employee could then pursue claims such as unfair dismissals and disciplinary appeals if they are dismissed or disciplined at some later date.

The facts

Mr Brock Wilson brought a disciplinary appeal in the IRC against a decision by a NSW public sector employer to terminate his employment.

The IRC was asked to consider whether it had jurisdiction to determine the appeal because, although Mr Wilson had served his six-month probationary period, his employment had not been confirmed under rule 5 of the GSE Rules. The employer argued that, without express confirmation of Mr Wilson’s employment, he remained on probation and was unable to bring a disciplinary appeal to challenge the termination of his employment.

Mr Wilson argued that, at the end of his six-month probationary period, his employment was not terminated, and the probationary period wasn’t extended either, so it should be inferred or assumed that he had completed his probation and his employment was confirmed under the GSE Rules. In other words, the fact he remained employed and continued to be paid meant it was fair to assume he had completed his probation.

The Decision

The IRC looked back at the history of the law relating to probationary periods for NSW public servants, going as far back as 1895. A key observation of the IRC was a change in the wording of the probation provisions in the GSE Rules compared with the PSEM Act. Under the PSEM Act, employment could be confirmed “after” the period of probation expired. Now, the GSE Rules state that the decision must be made “at the end of” the probationary period.

The IRC did not accept that probationary periods could be automatically extended indefinitely until the employer actively ‘confirmed’ the employment. Extending a probationary period requires employers to take a positive step, including notifying the employee of the extension. No such steps were taken in this case.

As Mr Wilson’s employment was not terminated, and the probationary period was not extended at the end of six months, the IRC said that it must be inferred that he had satisfied the requirements of the position, and that his employment had been confirmed. The consequence was that the IRC could then hear his disciplinary appeal.

What do we learn from this?

While this may seem like a niche point, it is something that comes up time and time again, as administrative processes for dealing with impending end dates of probationary periods fail, or are delayed until after it is too late.

In case there was any doubt, Wilson confirms that NSW public sector employers cannot continue to rely on the historical approach of employees just remaining on probation indefinitely until the employer ‘confirms’ or ‘annuls’ their employment, even if that doesn’t happen until long after the probationary period should have ended.

The GSE Rules now provide that the employer may, at any time during or “at the end of” the probationary period, confirm or terminate the employment. Unless the probation period is clearly extended before it ends, and the employee is told that it’s being extended, then when the period ends, that’s it. Probation completed. No second chances.

So how is this addressed from a practical perspective? All employers should diarise key dates during employees’ probationary periods to allow time for conduct and performance to be assessed. For NSW public sector employers, there also needs to be enough time factored in for the relevant decision-maker to decide whether to extend the probationary period, terminate the employee or confirm employment, and communicate those decisions to the employee, well before the probationary period expires. This requires systems and education for those responsible for managing new employees.

The specialist agencies in the government sector are not immune from this decision. The same wording that is used in rule 5 of the GSE Rules is found in the equivalent provisions that deal with probationary periods for:

  • NSW Health Service senior executives;
  • Administrative employees of the NSW Police Force (both executives and non-executives); and
  • Transport Service senior executives.

However, differently worded provisions are used for people employed in the Teaching Service, police officers appointed to the NSW Police Force, and some members of the Transport Service. Accordingly, the decision in Wilson may not apply to them.

The lesson here is relevant for all employers in all industries. The six month ‘qualifying period’ for unfair dismissal claims, which usually corresponds with a probationary period, cannot be extended just because an employee’s performance is still under review. The same systems and education for persons managing new employees should be implemented.

Martin Watts
Partner
+61 2 9169 8408
martin.watts@kingstonreid.com

Kathleen Weston
Lawyer
+61 2 9169 8415
kathleen.weston@kingstonreid.com

11 February 2020
Looking Ahead – 2020 Insight
February 11, 2020

By Christa Lenard, partner, Les Maroun, associate & Natasha Elster, paralegal

The New Year is behind us and business is back in full swing. Our difficult and heart wrenching summer saw many businesses and employees impacted and with new threats to the economy and restrictions on travel, it’s hard not to feel burdened by the state of play.

The employment space, like many others in business, comes wrapped in layers of red tape. Right now, compliance is the key word. Whether it be a supermarket giant (and the law firm advising it) or the family business which has through its success outgrown its systems in place to manage compliance, the issue of wage compliance is front and centre.

Sitting in the small claims division of the Federal Circuit Court in Victoria last week, Judge McNab observed that Australia has the most complex industrial system in the world, with Modern Awards being over complicated and frightfully hard to navigate. The Judge’s musings are consistent with what we have long known.

So as we hit the ground running in 2020, the year ahead promises to be another big year of significant decisions and new legislation – more red tape you may say? Most certainly. But with the right lens, Human Resource practitioners should be sharply focused on ensuring the left hand is talking to the right hand and that you keep up to speed with developments in this space.

Let’s take a brief look at what lies ahead.

Wage theft

Following significant media attention and mounting public frustration of the underpayment of employees in Australia, particularly by high-profile employers, the Commonwealth Government has revealed it is working on legislation to criminalise wage theft. In consultation on the issue, the Government last year sought submissions on possible reforms such as introducing maximum 10-year jail terms or $25m fines for wage theft offences.

Moreover, on 13 November 2019, the Senate referred an inquiry into the “unlawful underpayment of employees’ remuneration”. The inquiry’s terms of reference include reasons for wage theft, the costs of such theft to the economy and effective recovery and deterrence mechanisms. The Committee is accepting submissions until 14 February 2020 and is required to provide its report by 25 June 2020.

Focus point: be proactive and audit rostering and payroll practices against enterprise agreement or Award requirements. Be sure to do this under privilege!

Annualised salaries

From 1 March 2020, new model clauses on annualised salaries will commence operation in 22 modern awards. The new clauses impose greater obligations on employers who rely on award-based annualised salaries to satisfy award entitlements, including record-keeping, auditing and employee consent. More information, including steps you should take now to ensure you are compliant, can be found in our article on the topic.

Blink and you’ll miss it: If you haven’t already, seek advice before 1 March about the impact of the annualised salary clauses as they affect your business.    

Personal leave

This year, the High Court is expected to hear appeals filed against the decision in Mondelez v AMWU, which concerned employees’ entitlement to 10 days’ paid personal leave under the Fair Work Act.

In that decision, the Full Federal Court found that all employees (except casuals), regardless of their weekly hours of work, are entitled to the 10 days per year, with a “day” being the portion of a calendar day that would be allotted to working. This finding is contrary to the understanding that had been adopted by most employers, who considered a “day” to be an employee’s ordinary weekly hours divided by a notional working week of 5 days. To demonstrate the disparity in views:

  • the decision (which is currently law unless overturned by the High Court) in effect provides that an employee who works 12-hour days (whether once, twice or three times a week) is entitled to 10 lots of 12 hours of personal leave per year (in effect 120 hours)
  • under the commonly adopted approach prior to the decision, an employee who works 3 x 12-hour days per week is entitled to 10 lots of 7.2 hours of personal leave per year (in effect 72 hours), whereas an employee who works 2 x 12-hour days per week is entitled to 10 lots of 4.8 hours of personal leave per year (in effect 48 hours).

Mondelez and the Federal Minister for Jobs & Industrial Relations (who intervened in the Federal Court proceedings), have both appealed against the decision to the High Court. Their final written submissions are due by 20 March 2020 before the matter goes to hearing.

Our insight: At the moment, many employers are in strict non-compliance with personal leave requirements, particularly in respect of part-timers who have historically accrued personal leave on a pro-rata basis. The High Court decision will provide employers with the certainty needed on this issue. Watch this space as we think there is further change on the horizon.      

Religious discrimination

After releasing two drafts last year which generated heated public debate, the Commonwealth Government is expected to introduce its Religious Discrimination Bill 2019 to Parliament this year. As currently drafted, the Bill seeks to:

  • prohibit discrimination on the grounds of religious belief or activity in certain areas of public life, including work, education, goods and services, accommodation and sport
  • protect statements of religious belief from the operation of other anti-discrimination laws (subject to statements being made in good faith and other caveats)
  • prohibit large businesses from imposing conditions of dress standards, appearance and behaviour that restrict employees’ religious expression in their private capacity (unless the conditions are necessary for avoiding unjustifiable financial hardship), and
  • allow health practitioners to conscientiously object to providing health services on the basis of their faith (provided the objection is to a treatment and not a person).

The Bill also contains certain exemptions for religious entities, including schools, charities, hospitals, aged care facilities, accommodation providers, camps and conference centres.

Ripe for revision: The Government period for accepting submissions on the Bill’s current draft closed on 31 January 2020. More than 6000 submissions were received. At the time of publication, these submissions had not been made publicly available. There will be more changes on the way, so stay tuned.

Modern slavery

Last year saw the commencement of the Commonwealth’s Modern Slavery Act 2018, requiring entities with an annual revenue of over $100m to annually report on actions taken to assess and address modern slavery risks in their operations and supply chains. Reporting entities with a July to June financial year will need to provide their first reports – known as ‘modern slavery statements’ – by December 2020. The Government will then make the statements publicly available through an online central register.

NSW’s Modern Slavery Act 2018, which similarly requires entities to report on modern slavery risks, is still not in force despite being passed in June 2018 to become the first modern slavery legislation in Australia. The NSW Act goes further than the Commonwealth’s with a lower reporting threshold of $50m and penalties of up to $1.1m for non-compliance. However, defects in the Act have led to its indefinite deferral by Parliament and referral to the Standing Committee on Social Issues for inquiry. The Committee’s recommendations are due on 14 February 2020.

2020 Vision: Have you determined whether the new modern slavery laws apply to your workplace? If so, have you started assessing your supply chains and operations for any modern slavery risks for the first reporting period?

Industrial manslaughter

New industrial manslaughter laws are expected to commence in Victoria and the NT later this year after being passed in November 2019.

These jurisdictions will be joining the ACT and Queensland who have had industrial manslaughter laws in place since 2004 and 2017 respectively.

Although not yet law, the WA Government has introduced industrial manslaughter offences in its Work Health and Safety Bill 2019, which was tabled last year and also seeks to bring WA’s work health and safety laws in line with the national harmonised model legislation.

If passed into law, this would leave the Commonwealth, NSW, SA and Tasmania as the only jurisdictions without industrial manslaughter laws. Although NSW does not intend to introduce such laws, it has introduced amending legislation to clarify that the death of a person at work can, in circumstances, constitute manslaughter under the NSW Crimes Act 1900.

Look and learn: Your WHS practices are critical to reducing risk.  

Labour hire licensing

To address the exploitation of workers in the labour hire industry, more jurisdictions are expected to introduce licensing schemes to prohibit labour hire providers from operating without a licence that imposes ongoing operating and reporting conditions.

With Victoria, Queensland and SA already having schemes in place, the Commonwealth, the ACT and WA have proposed introducing schemes of their own. The Commonwealth’s proposed registration scheme is expected to focus on four high-risk industries: horticulture, meat processing, cleaning and security. The ACT and WA are yet to provide details on their respective proposals. SA has also introduced amending legislation to narrow the scope of it scheme to identified high-risk industries.

NSW, Tasmania and the NT have not announced any plans to introduce such schemes.

What needs doing?

Employers should be thinking about whether any of these developments will affect their workplace and what needs to be done before any new laws come into effect.

Follow us to receive updates on each of these topics and many others throughout the year as more developments unfold.

Christa Lenard
Partner
+61 2 9169 8404
christa.lenard@kingstonreid.com

Les Maroun
Associate
+61 2 9169 8414
les.maroun@kingstonreid.com

 

23 January 2020
Modern Award Annualised Salaries – Are you ready for 1 March 2020?
January 23, 2020

By Lucy Shanahan, partner

From 1 March 2020, changed annualised salary provisions in 22 modern awards will apply.  The new provisions impose greater obligations on employers who rely on award based annualised salaries to satisfy award entitlements including record keeping, auditing and employee consent. It is important that you take steps now to ensure you are compliant with the provisions that will apply from 1 March 2020.

Who do the new provisions apply to?

The new provisions will apply to any employer covered by the modern awards listed below. The new provisions only apply to full time employees, and only apply to employers who rely on an annualised salary arrangement under the terms of an award to satisfy award conditions.  The model clauses are not intended to invalidate or regulate terms of common law contracts which ‘buy out’ or otherwise compensate for award entitlements.

The Full Bench of the Fair Work Commission has introduced four different model clauses which apply to different modern awards. Model Clauses 1 and 3 apply most broadly as set out below.

Model Clause 1 Model Clause 3
Banking, Finance and Insurance Award 2010 Broadcasting and Recorded Entertainment Award 2010
Clerks – Private Sector Award 2010 Health Professionals Award 2010 (supervisory and managerial staff)
Contract Call Centres Award 2010 Horticulture Award 2010
Hydrocarbons Industry (Upstream) Award 2010 Local Government Industry Award 2010
Legal Services Award 2010 Manufacturing and Associated Industries and Occupations Award 2010
Mining Industry Award 2010 Oil Refining and Manufacturing Award 2010 (non-clerical employees)
Oil Refining and Manufacturing Award 2010 (clerical employees only) Pastoral Award 2010
Salt Industry Award 2010 Pharmacy Industry Award 2010
Telecommunications Services Award 2010 Rail Industry Award 2010
Water Industry Award 2010
Wool Storage, Sampling and Testing Award 2010

Model Clause 2 applies to the Hospitality Industry (General) Award 2010 in respect of employees classified as managerial staff and Model Clause 4 will apply to the Restaurant Industry Award 2010, Marine Towage Award 2010 and Hospitality Industry (General) Award 2010 in respect of non-managerial staff.  In this Insight we focus on Model Clauses 1 and 3.

What are the new provisions?

Model Clauses 1 and 3 require an employer to keep specific records and to undertake an audit either every 12 months or on termination of an employee’s employment.

The audit requires employers to calculate the amount of remuneration that would have been paid to the employee under the modern award and compare that amount to the annualised salary paid.  Any deficiency must be addressed within 14 days.

Under Model Clause 1, an employee must be advised of the information set out below in writing. A record of the information must also be kept.

For those employers who are covered by Model Clause 3, the information set out below must be contained in a written agreement between the employer and the employee. A copy of the written agreement must be retained as a time and wages record.

Record Keeping Obligations Further Details
Annualised salary paid Annual salary paid to satisfy award entitlements
Provisions of the award satisfied by the annual salary
  • minimum weekly wages
  • allowances
  • overtime penalty rates
  • weekend and other penalty rates
  • annual loading
Starting and finishing time of work and any unpaid breaks taken The record of starting and finishing times and unpaid breaks taken must be signed by the employee or acknowledged as correct in writing by the employee each pay period or roster cycle.  This can be done electronically
Method used to calculate the annualised salary including:
  • specification of each separate component of the annualised salary
  • any overtime or penalty assumptions used in the calculation
  • the outer limit of ordinary hours which would attract the payment of a penalty rate under the relevant award
  • the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage

Any hours worked in excess of the outer limits are not covered by the annualised salary and are paid for in accordance with the award.

In addition, under Model Clause 3, an annualised salary arrangement can be terminated by:

  • a mutual written agreement between the parties at any time, or
  • either party providing written notice to the other 12 months before the agreement ceases to operate.

What do you need to do?

1 March 2020 is fast approaching. You need to identify whether you are required to comply with the terms of any of the Model Clauses, and then take steps to ensure that you are compliant.  This will involve preparing relevant communication to employees and may involve making changes to your record keeping and payroll procedures.

Remember that you need to work out first whether or not you need to make any changes. Don’t panic! We can assist you to ascertain if the changes apply to you and help you to prepare for these changes.

Lucy Shanahan
Partner
+61 2 9169 8405
lucy.shanahan@kingstonreid.com

28 November 2019
Two levels of industrial manslaughter liability to be introduced in WA, following new laws in Victoria
November 28, 2019

By Duncan Fletcher, partner and Oliver Marshall, lawyer

Western Australian Work Health and Safety Bill 2019

In a snapshot

  • The long awaited Work Health and Safety Bill 2019 (WA) was tabled in the Western Australian Parliament on 27 November 2019 and is based on the harmonised model Work Health and Safety Act.
  • The WA Bill introduces two separate industrial manslaughter offences and has an expanded application to potentially all risks to health (broadly defined).
  • Insurance policies with indemnities will need to be reviewed or risk being void.

A little more detail

On 27 November 2019, the Work Health and Safety Bill 2019 (WA) (WA Bill) was tabled in the Western Australian Parliament. The WA Bill applies generally to all workplaces in Western Australia and makes provision for specific industries in separate sets of proposed regulations. Currently, there are three sets of proposed regulations, one covering general workplaces in WA, one set will cover the mining industry and another set will cover the petroleum and geothermal energy industries. The regulations however remain subject to the outcomes of the public consultation period which closed on 26 November 2019.

The most notable feature of the WA Bill is the introduction into WA of the criminal offence of industrial manslaughter, under which corporations and individuals, including directors or other corporate officers may be convicted. The WA Bill introduces two separate industrial manslaughter offences. The first being Industrial manslaughter – crime offence, carrying the maximum penalties of imprisonment for 20 years for an individual and a fine of $10 million for a body corporate. This offence includes the element that the accused person engaged in conduct knowing it was likely to cause the relevant death and the person engages in that conduct in disregard of the likelihood of death.

The second offence is the Industrial manslaughter – simple offence and is punishable by the maximum penalties of imprisonment of up to 10 years for an individual and a fine of $5 million for a body corporate. The simple offence contains only 3 elements, centring on the causation of death by the PCBU.

However in in order for an officer of the Person Conducting a Business or Undertaking (PCBU) to be convicted of either industrial manslaughter offences under the WA Bill, it must also be proven that the PCBU’s conduct was attributable to any neglect on behalf of the officer, or that it was engaged in with the officer’s consent or connivance.

The WA Bill also expands the scope of application by defining “health” in its broadest sense to cover both physical and psychological health. This means that the WA Bill potentially covers psychological risks to health such as stress, fatigue and bullying.

Another notable feature of the WA Bill is that it deems certain parts of insurance policies of no effect if they indemnify a person for liability under the WA Bill. This means that only those parts of insurance policies addressing liability for penalties under the WA Bill will be deemed void, rather than being “illegal” as announced by the WA Industrial Relations Minister Bill Johnston in this press release and reported in some commentary.

The text of the WA Bill is available on the WA Parliament Website together with a comprehensive explanatory memorandum.

Victorian and Northern Territory Offences

The Victorian parliament today passed the Workplace Safety Legislation (Workplace Manslaughter and Other Matters) Act 2019 (Victorian Amendment Act).

The primary objective of the Victorian Amendment Act is to introduce the offence of industrial manslaughter in Victoria, which was an election commitment by the Andrews Labor Government. The Victorian Act does so whilst also providing the highest monetary penalty under a work health and safety law in Australia at $16.5 million.

The Victorian Amendment Act creates a single offence of Workplace Manslaughter applicable to both PCBUs and officers of PCBUs. The offence is structured so that negligent conduct is the central element, supported by safety duty and causation elements. That is, an accused person will be guilty if they engage in negligent conduct, that breaches an applicable safety duty owed to a person and the conduct causes the death of that person.

However, unlike the WA Bill, the Victorian Amendment Act does not require an additional element of neglect, consent or connivance to be proven for an officer to be convicted of the offence. Rather, the Victorian Amendment Act simply recreates the elements of the offence applicable to PCBUs and applies them to “a person who is an officer of an applicable entity”, being corporations, unincorporated associations and partnerships.

Meanwhile, the Northern Territory parliament also introduced an industrial manslaughter offence in the Work Health and Safety (National Uniform Legislation) Amendment Act 2019 (NT Act). The NT Act passed into law on 27 November 2019 and will commence on a date fixed by Gazette notice.

The offence under the NT Act is structured similarly to the Victorian Amendment Act, however it includes an additional requirement to prove recklessness or negligence about the relevant conduct causing the death. Pursuant to the NT Act, the industrial manslaughter offence is punishable by imprisonment for life for an individual or $10.2 million for corporations.

Victoria and the Northern Territory now join Queensland and the Australian Capital Territory as the Australian jurisdictions with industrial manslaughter offences in force.

Duncan Fletcher
Partner
+61 8 6381 7050
duncan.fletcher@kingstonreid.com
Oliver Marshall
Lawyer
+61 8 6381 7056
oliver.marshall@kingstonreid.com
18 November 2019
Kingston Reid – Australia’s Largest New Specialist Workplace Firm – Open for Business
November 18, 2019

Today we are delighted to announce the launch of Australia’s new specialist workplace law firm – Kingston Reid.

We are simultaneously opening offices in Sydney, Melbourne and Perth with a founding team of nine partners and a large team of lawyers ready to service all the workplace needs of our valued clients.

Kingston Reid has hired top legal talent from across Australia to create the nation’s leading specialist workplace law firm. Most of the foundation team have worked together for years at their former firm, K&L Gates. The team is well-known as one of the pre-eminent legal teams for employment, industrial relations and workplace health and safety work in Australia, servicing top corporate clients and all levels of government on all their employment needs.

In launching the new firm, Kingston Reid’s Managing Partner, Alice DeBoos, said, “Our name is new but our experience and our collective footprint in the Australian market is anything but.

“Our new firm is founded by myself and eight other deeply experienced partners who have all been at the forefront of some of Australia’s most significant employment, workplace health and safety, and industrial relations matters.”

Ms De Boos went on to explain that Kingston Reid – the name of the firm chosen by the founding partners – is inspired by the legacy of Charles Kingston and George Reid, who established legislative framework for Australia’s workplaces in 1904.

The firm’s mission is to provide uncomplicated, insightful and visionary employment, workplace relations and safety law advice, delivered with an uncompromising focus on delighting clients.

“Our brand is unashamedly bold, timeless, colourful and unique. It symbolises unconventional ideas, innovation, and our energy, which, combined, will enable us to create a superb culture and an exceptional experience for our clients and our people,” said Ms De Boos.

Kingston Reid works with clients to address their most pressing workplace law matters and navigate the issues that matter the most. The firm represents employers in all workplace-related jurisdictions across all industries, including government, construction, ports and logistics, manufacturing, utilities, retail, banking and finance, professional services, IT and health.

“Our expertise is in working with Australian employers to design and implement cutting-edge workplace strategies which help facilitate their operational needs, navigate important safety matters, and tackle challenging compliance issues – not to mention run and defend all litigation,” Ms DeBoos continued.

Kingston Reid has a national focus, international reach and a global outlook. With more than 40 staff across the offices in Australia, the firm services Australian and multi-national corporate clients across the country.

The firm intends to grow in the future both in respect of its business offering as well as its size. Ms DeBoos added: “We think a lot of top talent will see the benefits of working in a nimble specialist domestic firm that is able to diversify as well as handle the most complex legal work in the market.

“Our move to establish Kingston Reid is not about doing different work or servicing different clients than we previously have; it’s about creating a specialist environment focussed solely on the issues facing employers in the workplace.

“We’ve come from one of the best law firms in the country and now want to apply that experience to creating a platform that only focusses on the world of workplaces, with an uncompromising commitment to client service.