Littler Global Guide - Australia - Q4 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 Q4 2019 Global Guide Quarterly updates   Download full Q4 2019 Global Guide Quarterly

Paid Parental Leave Amendment (Work Test) Bill 2019

New Legislation Enacted

Author: Naomi Seddon, Shareholder - Littler United States

On October 28, 2019, the Paid Parental Leave Amendment (Work Test) Bill 2019 was passed, to enable the paid parental leave work test period for a pregnant woman in an unsafe job to be moved from the 13-month period prior to the birth of her child to the 13-month period before she needs to cease work due to the hazards connected with her employment and the subsequent risk to her pregnancy. The law also extends the permissible break in the paid parental leave work test to enable parents to have a gap of up to 12 weeks between two working days and still meet the work test. Employers should be aware of the practical implications of these new provisions.

Queensland Company and Directors Charged with Industrial Manslaughter

Precedential Decision by Judiciary or Regulatory Agency

Author: Naomi Seddon, Shareholder - Littler United States

On October 25, 2019, a recycling company and its directors were the first Queensland company to be prosecuted for industrial manslaughter under section 34C of the Work Health and Safety Act 2011 (Qld). This prosecution is the first of its kind in Australia under State safety legislation, which is designed to punish companies and senior management whose conduct grossly falls below the standard required and which warrants criminal punishment. The company was accused of negligently causing the death of a worker by failing to separate a mobile plant from pedestrians, after a man was hit and killed by a reversing forklift at a wrecking yard. Two directors were also prosecuted for failure to ensure that the business had those systems in place. Under section 34C, the PCBU (Person Conducting a Business or Undertaking) can be fined up to $10 million for breaches of the Act and directors of PCBUs can also be fined up to $600,000 and be subject to up to five years imprisonment for reckless conduct. Since the complaints were laid, both Victoria and the Northern Territory have amended their legislation to include similar offences into their respective workplace health and safety Acts. Companies should be mindful of the laws in respect to employee safety and in the increased scrutiny that is being placed on directors who fail to ensure that their companies are compliant with health and safety laws.

High Court Agrees to Hear Personal/Carer’s Leave Case

Precedential Decision by Judiciary or Regulatory Agency

Author: Naomi Seddon, Shareholder - Littler United States

On December 13, 2019, the High Court granted the Australian Government and a food manufacturer special leave to appeal a contentious decision on calculating sick and carer’s leave. The parties argue that the decision potentially can cost employers an extra $2 billion a year. The appeal deals with the meaning of “10 days of paid personal/carer's leave” in section 96 of the Fair Work Act and is an important decision for all employers with nonstandard shift arrangements. Since the decision was published in mid-2019, it has caused confusion and uncertainty among employers about the correct way to calculate the entitlements. Prior to the 2019 decision, it had been understood that full-time staff who worked a 38-hour week were entitled to accrue 76 hours of personal leave each year, based on the number of ordinary hours they worked over a normal two-week period. However, the decision effectively changed the wording of the provisions regarding how leave is to be accrued to “10 days” per year.

Welcome Guidance for Foreign Entities on Australia’s New Modern Slavery Law

New Regulation or Official Guidance

Author: Naomi Seddon, Shareholder - Littler United States

The Australian Government has published the “Commonwealth Modern Slavery Act 2018: Guidance for Reporting Entities,” which is designed to assist entities with reporting obligations under Australia's new Modern Slavery Act 2018 (Cth). The Guidance has now included some clarification for foreign entities that are carrying on their businesses in Australia through an Australian subsidiary as it has now been made clear that the parent foreign entities of such subsidiaries are generally expected to be excluded from the reporting requirements under the Modern Slavery Act. Typically, it will only be the Australian subsidiary that is potentially required to report, rather than the foreign parent of the local Australian subsidiary itself being required to report. The Guidance also contains welcome detailed information on what constitutes an entity’s operations and supply chains. It is now clear that a reporting entity is not required to monitor or report on the modern slavery risks associated with how consumers use the products it supplies, which had previously been a concern when the draft laws were initially released.

No Leniency for Employers for Underpayment Claims

Important Action by Regulatory Agency

Author: Naomi Seddon, Shareholder - Littler United States

The Fair Work Ombudsman has made it clear in 2019 that businesses will no longer be given leniency for failing to pay employees correctly even in situations where they self-report underpayments (which has historically been viewed favorably by the Ombudsman). Identification of underpayments and associated record keeping obligations is now a key focus for both the Ombudsman and the Fair Work Commission. Further, the Federal Government is also considering introducing criminal sanctions for deliberate and systematic “wage theft” and the exploitation of vulnerable workers, due to increased public pressure following several high profile cases. The common issues that are now targeted by these bodies include the misclassification of workers, annualized salaries that fail to comply with minimum rates and allowances under applicable awards, ordinary hours and overtime payments, failure to pay applicable penalty rates and loadings, and failure to pay superannuation correctly on all ordinary time earnings (OTEs). Employers should be reminded that conducting regular audits of their workforce to ensure compliance with Australia’s employment laws should be a priority as there is now little tolerance for noncompliance, enforcement is on the rise, and tougher laws are expected to be implemented for noncompliance this year.

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.