Cases and Legislation June 2020 NEWS ALERTS NSW Work Health Safety Legislation Amendments The Work Health and Safety Act 2011 (NSW) (WHS Act) was recently amended giving effect to some of the recommendations of the 2018 national review of the modern WHS Act. ...
Across Australia, businesses and employees alike have been hit hard by events in the first half of 2020. Slowly but surely, we are turning towards the “new normal” as restrictions begin to ease, business picks up again and employees return to work and to the workplace.
Given the tumultuous start to the year we have all had, it is understandable that some employers have been forced to push their compliance and other workplace management projects to the bottom of the list.
As things begin to improve, now is the time to turn your attention to those projects or updates that have, until now, not been a priority.
In this Workplace Relations Review, we are taking a look at the things you might have missed and should prioritise now as we move forward and bring our workplaces and teams back together.
Modern Awards Review
Since January 2014, the Fair Work Commission (FWC) has been progressively undertaking a review of the modern awards – the first comprehensive review since the modern awards commenced in 2010.
Modern award variations
Two of the biggest changes to the modern awards as a result of the review have been to the layout and the language, with an increased focus on plain language to make the modern awards easier to read and understand. For instance, many modern awards now have schedules that conveniently summarise the rates of pay for particular circumstances, such as ordinary hours, shiftwork, and penalty rates.
Throughout the review, the FWC also considered a number of common issues across all the modern awards and made amendments to the awards accordingly. Some of the major common issues that have been addressed since the commencement of the review in 2014 include (but are not limited to):
- mechanisms for requesting flexible work arrangements under the Fair Work Act 2009 (Cth) (FW Act);
- the ability for casual employees to request to convert to permanent employment in certain circumstances;
- changes to the provisions that deal with the accrual of excessive annual leave and the cashing out of annual leave;
- the removal of abandonment of employment clauses in the modern awards; and
- a new requirement that termination payments be made to an employee within 7 days of the termination of employment.
Most recently, the FWC amended and inserted provisions into a number of modern awards relating to annualised wage arrangements. These variations were significant as they affected a wide range of employers and the terms and conditions that govern their employment relationships with new and existing employees. The new provisions require employers to set out their methodology for calculating annualised salaries and impose greater record-keeping and reconciliation requirements. These changes came into effect on 1 March 2020 and are set out in more detail in our previous E-update here.
Final stages of the 4-yearly review
The FWC is now approaching the final stages of the review and there have been a number of final variation determinations, resulting in extensively updated modern awards.
For the final stages, the modern awards were separated into three tranches, with the first of these varied awards coming into operation on 4 February 2020. Some of the modern awards varied in this first tranche included the Animal Care and Veterinary Services Award, Legal Services Award, Market and Social Research Award, Real Estate Industry Award and Sporting Organisations Award.
The second tranche of modern awards have been varied in groups. The first group comprising of 12 varied awards commenced on 13 April 2020 while a further 20 varied awards commenced on 4 May 2020. This included the Aboriginal Community Controlled Health Services Award and the Commercial Sales Award.
These reviewed modern awards now refer to the year 2020 in their titles. Given the extensive review process undertaken, it is strongly recommended that as the review process draws to a close, employers review the modern awards relevant to their workplace to identify whether the awards have been updated and whether amendments to workplace practices and employment contracts are necessary.
There will be further variations, with the next group of varied awards to come into operation on 29 May 2020 and 18 June 2020.
The final variations in some of these awards are quite significant. For example, during the review process, the FWC determined to remove vehicle manufacturing from the Vehicle Manufacturing, Repair, Services and Retail Award and insert it into the Manufacturing and Associated Industries and Occupations Award 2020 (Manufacturing Award). The future Manufacturing Award provides that industries and parts of industries in the:
- manufacturing, assembling or repairing of carriages, carts, wagons, trucks, motor cars, bodies, motorcycles, railway cars, tram cars, sidecars or other vehicles or parts or components or accessories in wood, metal and/or other materials; and
- manufacturing, assembling, fabricating, installing, servicing, maintaining, reconditioning or repairing of engines or vehicle servicing equipment and agricultural machinery or implements or the like,
will be included in the definition of “Manufacturing and Associated Industries and Occupations”.
This means that, from 29 May 2020, employers in the vehicle manufacturing industry (or falling in the industries above) will need to check their award coverage as they may now by covered by the Manufacturing Award and the minimum terms and conditions under the Manufacturing Award will apply to relevant employees.
Other awards where final variation determinations have been issued, and their anticipated commencement dates, are as follows:
29 May 2020:
- Clerks – Private Sector Award 2020
- Contract Call Centres Award 2020
- Educational Services (Schools) General Staff Award 2020
- Hospitality Industry (General) Award 2020
- Local Government Industry Award 2020
- Rail Industry Award 2020
- Restaurant Industry Award 2020
18 June 2020:
- Aircraft Cabin Crew Award 2020
- Amusement, Events and Recreation Award 2020
- Business Equipment Award 2020
- Dredging Industry Award 2020
- Health Professionals and Support Services Award 2020
- Horse and Greyhound Training Award 2020
- Journalists Published Media Award 2020
- Marine Tourism and Charter Vessels Award 2020
- Marine Towage Award 2020
- Miscellaneous Award 2020
- Pest Control Industry Award 2020
- Ports, Harbours and Enclosed Water Vessels Award 2020
- Professional Employees Award 2020
- Seagoing Industry Award 2020
- Security Services Industry Award 2020
- Sugar Industry Award 2020
- Supported Employment Services Award 2020
Conclusion of the 4-yearly review process
As this review process draws to a close, we note that the requirement for the FWC to undertake a 4-yearly review of the modern awards was repealed at the end of 2018. Accordingly, while the FWC retains the power to review, amend and revoke provisions in the modern awards, it will no longer be obligated to carry out a 4-yearly review.
Employers should now ensure that they review the most recent versions of the modern awards that apply to their employees and ensure that their employment contracts and payroll systems are compliant. For those awards where variations are yet to commence, employers should take the opportunity now to familiarise themselves with the proposed modern awards and determine if changes are needed to employment contracts and minimum terms and conditions in anticipation of the commencement of the variations.
Once employment contracts have been reviewed and brought up to date, it is only appropriate that employers turn their attention to their policies and procedures.
Not only is it important to have policies in place to ensure an appropriate standard of behaviour of employees, but in some instances, policies will also be required for legal compliance purposes. Therefore, employers should ensure that their policies and procedures are adopted, up to date, legally compliant and that employee training is effectively and regularly conducted.
Anti-discrimination legislation in Australia makes it unlawful for employers and employees to discriminate against or harass a person in their employment on the basis of a “protected attribute”.
Employers have an obligation to ensure that workplaces are free from discriminatory or harassing conduct and behaviour. Anti-discrimination legislation does this by placing liability on employers for the unlawful discriminatory or harassing conduct of employees. An employer may be vicariously liable for the conduct of an employee if it is found that the employee breached anti-discrimination legislation.
An employer may be able to avoid vicarious liability if it is able to demonstrate that it took “all reasonable steps” to prevent employees from engaging in unlawful discrimination and harassment. The employer has the onus to prove that it took steps to prevent the conduct and one of the most basic steps that employers can and should take, is to have in place an anti-discrimination policy.
An anti-discrimination policy should outline what is and what is not unlawful discrimination and harassment, that breaches of the policy will be taken seriously, and that disciplinary action could result if an employee engages in unlawful discrimination or harassment. It should also outline how complaints can be made and how the employer will respond to complaints.
It will not be sufficient for employers to simply have anti-discrimination policy in place, as “all reasonable steps” will also require that employers train employees in the policy and consequences for breaches.
This was highlighted in the Full Federal Court decision in Von Schoeler v Allen Taylor and Co Ltd Trading as Boral Timber (No 2)  FCAFC 13 where the Full Court held that the employer was liable for the sexual harassment committed by an employee. The Full Court was not satisfied that the employer took all reasonable steps to prevent the employee from engaging in the sexually harassing behaviour. In particular, there was no evidence that the employee was aware of the employer’s Sexual Harassment Policy and Harassment Policy and there was limited evidence that the employer trained employees in the seriousness and consequences of engaging in sexual harassment.
Employers have an obligation under work health and safety legislation to ensure the health and safety of employees. The adoption and implementation of a workplace anti-bullying policy is an important measure to control or eliminate the risk of bullying in the workplace.
An anti-bullying policy should identify what is bullying behaviour, the expected standard of behaviour of workers, the obligations on managers and supervisors and the process for lodging and responding to workplace bullying complaints. Having an anti-bullying policy will be necessary to demonstrate management’s response to workplace bullying risks if a complaint is made to a work health and safety regulator.
Where an application for orders to stop bullying is made to the FWC, it will consider whether there is an anti-bullying policy in place and if there has been compliance with the policy. The FWC may make orders requiring the employer to adopt an anti-bullying policy or review its policy if it is inadequate in dealing with the risk of workplace bullying.
Accordingly, it is important for workplace anti-bullying policies to be up to date and compliant.
Where employers take this opportunity to review their anti-discrimination and other policies, it is a useful reminder to also review any separate grievance policy and procedures. This will be particularly important if any of the policies refer to making and managing complaints under the separate grievance policy. The policies should be consistent and reflect the process which will be followed if a complaint is made.
Changes to whistleblower laws under the Corporations Act 2001 (Cth) (Corporations Act), which came into force from 1 July 2019, made it a requirement for certain corporations to have in place a Whistleblower Policy. From 1 January 2020, public companies, large proprietary companies and corporate trustees of superannuation entities are required to have a Whistleblower Policy that addresses the new whistleblower regime under the Corporations Act.
In accordance with the Corporations Act, the Whistleblower Policy must at a minimum address:
- The whistleblower protections;
- Protected disclosures and how protected disclosures can be made;
- Support given to whistleblowers and protection of whistleblowers;
- Investigation of protected disclosures;
- How the fair treatment of employees mentioned in a disclosure will be ensured; and
- How the policy will be made available to officers and employees.
It is recommended that employers who are legally required to have a whistleblower policy but are yet to implement such a policy (or have not reviewed an existing policy to ensure its compliance with the new whistleblower regime) take steps to do so now.
Work Health and Safety
As employees return to work, return to the workplace and as business picks up, now is the time for employers to revisit and refresh their work health and safety (WHS) practices.
WHS laws vary by State and Territory, but all WHS laws require employers to do everything reasonably practicable to provide a safe and healthy working environment for workers and visitors to the workplace. Whilst we all now have one more common risk to contend with in all aspects of life, health and safety at work remains as important as it ever was.
Employers should take this time to review their WHS policies and other WHS material, such as safe work method statements and risk assessments. Employers should review their WHS obligations and ensure that their policies and practices are compliant with the applicable State or Territory legislation and any associated regulations.
Employers should also be aware that State and Territory regulators and Safe Work Australia regularly issue guidance material, which is considered by courts and tribunals to set the minimum standards expected of employers.
For example, Safe Work Australia has released an updated Guide to Preventing and Responding to Bullying in the Workplace. The Guide is regularly referred to by regulator investigators who, in our recent experience, point particularly to the Guide’s recommendation that employers conduct surveys about bullying in the workplace in order to identify and then take steps to eliminate the risk.
Employer’s should also be prepared for the possibility of a safety inspection from a representative of a State or Territory WHS regulator, which are also on the rise.
Employers must provide inspectors with access to relevant safety records, including records on consultation, WHS training, policies, practices, incident records and other WHS materials like safety checklists.
Now is the time to tidy up your WHS practices and record keeping to ensure they are compliant and can pass any safety inspection, both for the protection of the employer but most importantly, for the health and safety of employees.
Underpayment claims continue to be a hot topic in 2020 with a number of large, household-name businesses self-disclosing significant underpayments.
The Fair Work Ombudsman
Last year, the Federal Government announced an increase to the funding of the Fair Work Ombudsman (FWO) to enable an increase in its enforcement activities. The FWO announced that it would be using the money to focus on underpayments in franchise networks, supply chains and sham contracting.
Since then, the FWO Migrant Workers’ Taskforce released a report recommending a range of changes to the enforcement powers of the FWO including increased information gathering powers and amendments to the FW Act enabling courts to make “additional enforcement orders”, such as adverse publicity orders.
The recommendations are currently under consideration as the FWO’s enforcement activity continues.
Wage Theft Bill 2020 (Vic)
In Victoria, the Wage Theft Bill 2020 has been introduced to Parliament. If passed, the legislation will make the deliberate withholding of wages a criminal offence, attracting penalties of $198,264 for individuals, $991,320 for companies or up to up to 10 years imprisonment.
Other criminal offences under the proposed legislation include dishonestly falsifying pay records in an attempt to cover up any underpayments.
Employers are also reminded of the amendments to the FW Act introducing the concept of a “serious contravention.”
A serious contravention occurs when a person knowingly contravenes a provision of the FW Act and that contravention forms part of a systematic pattern of conduct. Penalties for serious contraventions are ten times higher than the other civil penalties under the FW Act.
Accordingly, ongoing underpayment of wages can not only result in a high wages bill but can also result in serious penalties for an employer and any individuals involved in the underpayments.
Identify the most recent versions of the modern awards that apply to your employees and work with your legal and payroll partners to ensure that your employment contracts and payroll systems are compliant.
Organise a review of your policies and procedures to ensure they are up to date, legally compliant and that employee training is effectively and regularly conducted. For example, do you have:
- An anti-discrimination policy?
- An anti-bullying policy?
- A whistleblower policy?
Arrange for an audit of your WHS documentation to make sure that you have relevant safety records, including:
- records on consultation and WHS induction/training;
- incident records; and
- other WHS materials like safety checklists.
Also ensure that the above WHS records are up to date, compliant and readily available if you are ever required to produce them to a WHS inspector or in response to a subpoena.
Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on firstname.lastname@example.org.
Information provided in this update is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this update, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.