Littler Global Guide - Australia - Q1 2019

Browse through brief employment and labor law updates from around the globe. Contact a Littler attorney for more information or view our global locations.

View all Q1 2019 Global Guide Quarterly updates   Download full Q1 2019 Global Guide Quarterly

New Whistleblowing Laws in Australia

New Legislation Enacted

Authors: Naomi Seddon, Shareholder & Merille Raagas, Counsel – Littler United States

The new Australian Whistleblowing laws passed in Parliament on February 19, 2019, and will likely take effect in the next couple of months (July 2019) after it receives Royal Assent. The aim of the Whistleblower Act is to harmonize various current regimes under the federal law, expand protections and remedies for whistleblowers and create a regime for tax misconducts and contraventions. Employers should have a whistleblower policy prepared within the six-month transition period after July 2019 and must be in place by January 1, 2020. Significant penalties apply for businesses and individuals that contravene the Whistleblower Act, which include 5,000 penalty units (AUD1.050m) (or three times the benefit derived or detriment avoided) for an individual; and for a body corporate, 50,000 penalty units (AUD10.5M) or three times the benefit derived or detriment avoided, or 10% of the body corporate’s annual turnover (up to 2.5 million penalty units). Penalties also include imprisonment.

Can Employee’s Silence Be Used as Grounds for Dismissal?

Precedential Decision by Judiciary or Regulatory Agency

Authors: Naomi Seddon, Shareholder & Merille Raagas, Counsel – Littler United States

On January 14, 2019, the Fair Work Commission ruled on whether employers can demand employees to answer questions and if an employee’s silence could be used as grounds for employee dismissal. In the case of Mr Jordan Lamacq v Smerff Electrical, the employer demanded the employee provide information for allegedly taking a cash job on the side while working for him under the threat of losing his job if the information was not provided. The employee refused, so he was fired for failing to carry out a “lawful and reasonable instruction that was consistent to his employment contract”. The Commission found that the language used by the employer was so threatening and offensive that the employee did not have an option to comply and that “silence in the face of a tirade of expletive laden and threatening abuse … is entirely understandable and not an indication that [the employee] was guilty of anything”. Therefore, the FWC decided in favor of the employee. As employees generally enjoy the right against self-incrimination, investigations made by employers should ensure procedural fairness.

Changes to Immigration Visas and Other Related Changes

New Regulation or Official Guidance

Authors: Naomi Seddon, Shareholder & Merille Raagas, Counsel – Littler United States

On March 11, 2019, changes to the Australian immigration system were announced, along with a list of eligible occupations. The changes affect a number of Australian visa subclasses. Occupations are divided into two lists (medium-long term list and short term list) which dictate how long a visa holder can work and stay in Australia. Eight of these occupations were added into the medium-long term list which means that subclass 482 visa applicants under these occupations can be sponsored to stay for up to four years with the option to apply for permanent residency under the subclass 186 visa. The working holiday visa program (subclass 417 and 462) has also been amended to allow visa holders to qualify for a third visa after they have spent six months doing regional work. Additional changes were announced and likely will occur within the next quarter.

State Updates and Labor Hire Licensing Scheme in Australia

Upcoming Deadline for Legal Compliance

Authors: Naomi Seddon, Shareholder & Merille Raagas, Counsel – Littler United States

As part of the state updates: (i) the Government proposes to introduce a compulsory national licensing scheme after the next federal election between now and May 2019; (ii) Victoria’s labor hire licensing scheme is set to take effect on April 29, 2019, with a six-month transition period for employers ending on October 29, 2019; (iii) New South Wales proposes to introduce a state-based licensing scheme after the NSW elections; and (iv) Australian Capital Territory has introduced the scheme which will apply to companies who engage work in the territory but further details are yet to be confirmed. Once established, the National Labour Hire Licensing Scheme will require all labor hire companies to be licensed and will capture overseas-based companies that supply workers directly or indirectly to Australian firms. Scheme compliance will need to be demonstrated under the Fair Work Act, health and safety laws, superannuation and tax obligations and immigration conditions. The proposal is for licenses to be issued for up to three years and would be cancelled anytime if the labor hire firm is noncompliant.

Employees’ Privacy Right Relative to the Use of Biometric Technology


Authors: Naomi Seddon, Shareholder & Merille Raagas, Counsel – Littler United States

The Fair Work Commission (FWC) recently allowed an employee to appeal the denial of his unfair dismissal claim for refusing to use biometric fingerprint scanning technology as part of his employment. The biometric technology was rolled out in the organization predominantly for time-keeping purposes and the employer announced that “all employees must use the biometric scanners to record attendance on site". The employee was dismissed after objecting that he was concerned about his personal information being collected. With the appeal, the FWC Full Bench will examine the progression of biometric technology and its connection to workers’ rights to privacy, as this is the first case that considered whether an employer has grounds to dismiss workers for refusing to provide biometric information.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.