Modern Slavery Act
New Legislation Enacted
On November 29, 2018, the Modern Slavery Bill 2018 was enacted, requiring companies operating in Australia that meet the requisite annual global revenue threshold to submit modern slavery reports. With an effective date to be announced, companies should plan for an early 2019 commencement as the act is obliging entities to publish a “Modern Slavery Statement” on company websites disclosing efforts to ensure that Australian business operations and their supply chain partners are free from slavery and human trafficking. Employers should conduct a risk analysis of their operations to ensure compliance, due diligence, update policies and train employees as necessary.
Domestic Violence Leave
New Legislation Enacted
Effective December 12, 2018, victims of domestic violence are entitled to five days of unpaid family and domestic violence leave, as long as they can establish that they are experiencing family and domestic violence; they need to do something to deal with the impact of the family and domestic violence; and it is impractical for the employee to do so outside their ordinary hours of work. The activity may include making personal safety arrangements, relocation, urgent court hearings and seeking assistance from the police. The leave is available regardless of length of service or work status and is accessible in full at the beginning of each 12-month period of their employment (not accumulated).
Casual Employee Conversion Clause
New Order or Decree
Effective October 1, 2018, casual conversion rights and obligations were inserted into a number of modern awards for casual employees who want to convert their casual employment into permanent. Businesses that employ casual workers must satisfy various requirements before the end of 2018 and review the Modern Awards that may apply to their casual employees in their business to familiarize themselves of any casual conversion clauses that have specific requirements.
Employment Police Checks
Precedential Decision by Judiciary or Regulatory Agency
In Njau v Superior Food Group Pty Ltd, the employee challenged his termination on the basis that the employer had full and complete knowledge of his criminal record for over a year before his dismissal and that the job did not require a clean record. The employer contended that the employee had been dishonest, failing to disclose the full extent of his convictions. The Commissioner of the hearing found that the dismissal was unjust as the employee had consented to a full criminal background check. Employers should ensure that their policies are applied fairly and do not unreasonably deny employment opportunity based on a national police check.
Difficulties of Terminating Employees with Mental Disability
In Robinson v Western Union Business Solutions (Australia) Pty Ltd, the employee went on an extended sick leave alleging a mental disability. After multiple attempts to confirm his return date, the employer terminated the employment, stating in writing that it was due to employee’s “capacity to return to work.” Holding that the termination was an adverse action due to the employee’s mental disability, the federal court ordered the employer to compensate the employee. Employers should be careful when managing employees with disabilities to avoid a finding of discrimination. The reasons for termination must be clear and, if possible, due to the employee’s inability to satisfy an inherent job requirement.