Looking Ahead – 2020 Insight

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