Bargaining Representatives Required to Disclose Financial Benefits

New Legislation Enacted

On January 29, 2018, the Fair Work Amendment (Corrupting Benefits) Act 2017 took effect and provides that all bargaining representatives are now required to disclose financial benefits stemming from proposed enterprise agreements before workers vote on them. This will include an obligation to report payments to training funds that are controlled by any of the bargaining organizations or the proportion of commissions earned for employee sign-ups to insurance schemes, as well as director, management and brokerage fees, dividends and trust and share distributions.

In Certain Circumstances, Employer May Be Represented, Even if Applicant Is Not

Precedential Decision by Judiciary or Regulatory Agency

Representing good news for foreign-owned companies, the Fair Work Commission recently allowed a French company to be represented by counsel in an unfair dismissal claim where the applicant was unrepresented. In its application for the right to representation, the French owned-company argued that the employee pursuing the claims was its only Australian-based manager and its French managers only had a limited grasp on the Australian legal system. The Commissioner found that denying approval would be unfair given the company’s minimal presence in Australia and the complexity of the issues involved in the case.

Social Media Post Determined to Be Within the Scope of Employment

Precedential Decision by Judiciary or Regulatory Agency

In an important ruling on out-of-hours conduct, on February 9, 2018, the Fair Work Commission found that an employer did not need to receive a complaint before investigating and then terminating the employment of a worker for sharing a pornographic video with friends and colleagues via social media. The ”nexus“ to the employment was established despite the out-of-hours conduct, and the company had a valid reason to terminate the employment. This serves as an important reminder that having good policies in place on bullying, harassment, and discrimination are essential in these types of cases.

Right to Unpaid Family Violence Leave

New Regulation or Official Guidance

The Fair Work Commission recently ruled that all employees in Australia who are modern award-covered will be entitled to five days of unpaid leave if they are affected by family or domestic violence, effective May 1, 2018. There are currently 122 modern awards, and the change will be applied to all 122, as well as full-time, part-time, and casual employees who are covered by one of the awards. The Government announced its intention to extend this benefit to all Australian workers in the future.

Jail Time for Employers Who Underpay Superannuation, Per Proposed Law

Proposed Bill or Initiative

Under a proposed law, employers who fail to pay their employees the correct superannuation entitlements will soon face up to 12 months imprisonment, in addition to financial penalties. Also, it would make it mandatory for all employers, including small employers, to use the government’s new ”Single Touch Payroll“ technology for payroll functions, including tax reporting. The new law will also allow the Australian Tax Office to search for non-compliance, rather than merely acting upon employee complaints.