There has been a lot happening in the employment and human resources space in recent months. In this newsletter, we take a look at a number of recently introduced laws and obligations which will take effect in the coming weeks.

Modern slavery legislation

On 1 January 2019, the Modern Slavery Act 2018 (Cth) commenced operation. The legislation requires certain entities to report annually in respect of actions taken to address modern slavery risks in their operations and supply chains. 

Modern slavery includes slavery-like practices such as forced labour, trafficking persons and the worst forms of child labour.

Which entities are affected?

Under the legislation, “reporting entities” are required to prepare a “modern slavery statement”. Other entities may also voluntarily provide a statement.

A “reporting entity” includes an entity operating in Australia with consolidated revenue of at least $100 million in a reporting period (being a financial year or applicable accounting period).

What must a modern slavery statement include?

Statements must include a range of information, including a description of the:

  • structure, operations and supply chains of the entity;
  • risks of modern slavery practices in the operations and supply chains; and
  • actions taken to address those risks, including due diligence and remediation processes.

Statements will be published on a publicly accessible register.

There are no penalties for non compliance, however, non-complying entities may be “named and shamed” on a public register.

There is also modern slavery legislation in New South Wales which has been passed and is yet to commence.

We can assist with preparation of a modern slavery statement, advice regarding compliance with modern slavery legislation and managing supply chain risks and issues.

Victorian labour hire licensing scheme

The Labour Hire Licensing Act 2018 (Vic) commenced on 29 April 2019. The scheme introduced a mandatory licensing regime for entities providing labour hire workers. The legislation contains broad definitions which may capture operators which have not necessarily traditionally been considered “labour hire providers”. The basic definition of a labour hire service provider is a person who, in the course of conducting a business, supplies one or more individuals to another person, to perform work in and as part of the business or undertaking of the other person.[1]

On and from 30 October 2019,[2] unlicensed labour hire service providers will face substantial penalties for operating without a licence. Businesses engaging workers via an unlicensed labour hire service provider also face penalties.

Businesses should consider whether the labour hire licensing scheme applies to them, particularly if they:

  • supply staff to other entities; or
  • engage staff who they do not directly employ.

Separate labour hire licensing legislation also applies in Queensland and South Australia.

Portable long service leave

The Long Service Benefits Portability Act 2018 (Vic) introduced a portable long service leave scheme for employees in the contract cleaning, security and community services industries.

Under the scheme, employers who are covered by the legislation are required to:

  • register with the Portable Long Service Authority by 30 September 2019;
  • register workers through a report called a “quarterly return” which includes information such as the names of the workers who have worked for the employer during that quarter, the days they have worked and the pay they have received[3] (with reporting to commence in October 2019)[4]; and
  • pay a levy towards the long service leave balances of relevant employees.

Employees build up long service leave entitlements through the contributions made by their employer(s) which can be taken and paid at the relevant time, even where they have changed employers (subject to the employees meeting various eligibility requirements).

Penalties may apply for non-compliance with certain provisions of the Act, for example, where an employer who is covered by the legislation fails to register with the Authority.

There is already a long-established portable long service leave scheme in the construction industry in Victoria, as well as other schemes operating outside Victoria.

Enhanced whistleblower protections

The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) introduces a number of key changes, including expanding the:

  • types of conduct about which whistleblowers are able to make protected disclosures;
  • individuals who can make a protected disclosure (for example, this will now include relatives of employees);
  • individuals to whom disclosures may be made (for example, this will now include senior managers); and
  • entities that can be the subject of a disclosure.

Whistleblower policy

A further key reform includes the introduction of a requirement that the following entities must have a compliant whistleblower policy in place as from 1 January 2020:

  • public companies;
  • large proprietary companies; and
  • proprietary companies that are the trustee of a registrable superannuation entity.

A compliant whistleblower policy must include, among other things, information about:

  • protections available to whistleblowers;
  • how and to whom disclosures that qualify for protection may be made; and
  • how the entity will support whistleblowers and protect them from detriment.

There are various penalties for breaches of the legislation, including, for example, where a whistleblower is victimised or where there is no compliant whistleblowers policy in place.

Businesses should consider:

  • whether they are required to implement a compliant whistleblower policy; and
  • implementing appropriate training and policies in respect of whistleblower complaints that may arise in the workplace.

Annualised wage arrangements

As part of its 4 yearly review of modern awards, the Fair Work Commission has handed down a series of decisions foreshadowing amendments to a number of awards.[5]

The proposed amendments involve the insertion of standard provisions relating to annualised salaries. The Commission has outlined different standard provisions depending on the industry/occupation and whether the hours and salaries are generally predictable.

A number of requirements may apply to employers, depending on the applicable provisions in their award, including:

  • a requirement to keep a record of which provisions of the award are intended to be covered/satisfied by the annual salary;
  • a requirement to record the method of calculation, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation; and
  • an “outer limit” of hours which an employee can work without being entitled to a payment over and above the annual salary.

The Commission is still reviewing further submissions from interested parties in relation to some final issues.

The new provisions are expected to take effect from 1 March 2020.

Employers paying an annual salary to award-covered employees should consider whether their current employment contracts, documentation and payroll practices are consistent with any annualised wage provisions in the relevant award.