Fwd: Thinking 07 Feb 2020 What are your top workplace priorities for 2020?

The implementation of changes to modern awards arising from the award review process (which is expected to conclude in 2020) will need to be a priority for employers to ensure compliance.

From 1 March 2020, existing annualised wage arrangements in a number of modern awards will be replaced with revised provisions that incorporate additional (and substantial) reconciliation, time recording and record keeping requirements.  Affected industries include mining, banking, telecommunications, clerks, legal services, pharmacy, rail, oil refining, manufacturing, horticulture and hospitality.

The new provisions impose the following obligations on employers in respect of their employees that are the subject of annualised wage arrangements contained in a modern award:

• Employers must advise employees in writing and keep a record of, or specify in the written agreement:
• the method by which the annualised wage has been calculated, including specification of each separate component of the annualised wage and any overtime or penalty assumptions used in the calculation; and
• the outer limit number of ordinary hours which would attract the payment of a penalty rate and the outer limit number of overtime hours which the employee may be required to work in a pay period or roster cycle without being entitled to an amount in excess of the annualised wage.If hours are worked beyond these outer limits, such hours will not be covered by the annualised wage and must separately be paid for in accordance with the award.
• Employers must keep a record of the starting and finishing times, and any unpaid breaks taken, of each employee subject to an annualised wage arrangement.The record must be signed by the employee or otherwise acknowledged as correct in writing (including by electronic means), for each pay period or roster cycle; and
• Every 12 months, or upon termination of the employee's employment, employers must compare the annualised wage with the amount of remuneration that would have been payable to the employee under the award provisions, and rectify any shortfall within 14 days.

On 23 December 2019, the FWC published draft variation determinations for the impacted awards.  Interested parties have until 31 January 2020 to comment on the drafting of the revised provisions. However, the FWC will proceed on the basis that the revised provisions will commence operation on 1 March 2020, except in respect of the Hospitality Award, the Marine Towage Award and the Restaurant Industry Award because substantive matters affecting these awards are still under consideration. 

The key advantage of an annualised wage arrangement under a modern award is that it allows the employer to spread the cost of the award entitlements over a year, and employees have fluctuations in earnings evened out over the year.  However it will not be suitable for all employees (such as part time employees), and employers will need to consider whether they can comply with the record keeping obligations under the revised provisions.  The FWC has indicated that the revised provisions do not "invalidate or regulate" contractual annualised salary arrangements that compensate for or "buy out" identified award entitlements, suggesting that it may be open to employers to not engage with the award provisions at all. 

The new year provides an opportunity for employers to conduct an audit and review the arrangements they have in place for  employees on annualised salary arrangements (whether pursuant to an award, enterprise agreement or contract) and determine whether the arrangements continue to be fit for purpose and legally compliant.

2019 saw a surge in the number of claims relating to wage underpayments. We expect this trend to continue in 2020 and that the Fair Work Ombudsman will continue to be active in this space.

An underpayment may be the result of deliberate attempts to subvert the law, or inadvertent payroll errors or misapplication of an industrial instrument (commonly through the use of annualised salaries).  Regardless of whether an alleged breach is deliberate or inadvertent, any contractual or legislative breach will carry significant legal, financial and reputational consequences.

We also expect class actions in respect of wage compliance issues to continue to increase.  Class actions have also been commenced asserting that an industrial instrument has been wrongfully approved.  Employers operating under older industrial agreements should be aware of the risk that questions could be raised about the validity of the approval of such agreements. 

Two recent developments will likely affect the forum and availability of funding for such class actions:

• The Federal Court in Turner v Tesa Mining (NSW) Pty Limited [2019] FCA 1644 ruled that litigation funders will now be expected to lodge security for potential future adverse costs orders. The court ruled that the "no costs jurisdiction" protections afforded to employees and employers under the FW Act are not available to non-party funders who are using the litigation for commercial advantage.This decision may have the effect of decreasing the number of class actions that litigation funders are willing to fund in the federal jurisdiction.
• The Victorian Government also recently introduced the Justice Legislation Miscellaneous Amendments Bill 2019 (Vic).The Bill, if passed, would allow contingency fees to be paid to plaintiff law firms in class action proceedings.The introduction of this legislation may lead to more class actions being commenced in Victoria, as opposed to the Federal Court and courts in other States, where the prohibition on contingency fees currently remains.

Reforms to the whistle-blower protections regimes that apply to the private sector in Australia commenced on 1 July 2019.  In 2020, we expect to start to see the practical implications of these reforms as employers grapple with them in practice. 

For example, will the laws apply to disclosures made by employees based overseas? How will recipients of disclosures obtain consent to investigate the disclosure? How will board directors manage their new obligations as eligible recipients of disclosures?  

The reforms expanded the range of people who can make a protected disclosure, the range of conduct that may be the subject of a protected disclosure and the range of people who may receive a disclosure.  They also remove the requirement that protected disclosures be made "in good faith".

The  protections available to whistle-blowers have been strengthened, and whistle-blowers have access to a broader range of remedies if they suffer detriment relating to the making of a protected disclosure.

The reforms introduce a requirement for certain businesses to have a whistle-blower policy in place. Public companies, large proprietary companies, and proprietary companies that are trustees of a registrable superannuation entity, were required to have a compliant whistleblower policy in place from 1 January 2020.

In November 2019, ASIC released regulatory guidance in relation to drafting whistle-blower policies.  The regulatory guidance imposes requirements on organisations beyond what is set out in the legislation.  While not legally binding, it gives an indication of what the regulator expects to be included in whistle-blower policies.

Corporations may also be exposed to significantly higher civil penalties now that the whistle-blower reforms and a related Bill on penalties have both commenced operation (from 1 July 2019). This includes civil penalties of up to $1,050,000 for individuals and up to $10,500,000 for companies, or potentially more in certain circumstances.

In December 2019, the High Court granted leave to appeal the Full Court's decision in Mondelez v AMWU [2019] FCAFC 138 concerning the calculation and payment of personal leave by employers (see our Alert).

The decision on appeal held that the National Employment Standards provide all employees access to 10 working days of personal or carer's leave for each year of service, regardless of how many ordinary hours the employee works.For  the employees in this case, the effect of this was that employees working different shift patterns accrued different amounts of personal leave. For employees who work 12 hour shifts, the employee's NES accrual will cover the equivalent of 120 productive hours of paid personal leave per year (accruing year to year). This compares to 76 productive hours for an employee working the same total number of ordinary hours, but spread over five shifts per week.

If the decision is not overturned by the High Court (or by legislation), some employers may need to undertake a major reconciliation of leave accruals and usage for at least the past six years. The decision is likely to result in significant under and over accrual issues for some employers, and potential associated under and overpayments for employees working non-standard patterns of work.

Correctly characterising an employment relationship as one of casual or permanent employment was a focus of litigation and regulatory change in 2019. There will be further developments on this front in 2020.

In our 2019 edition of Fwd: Thinking - What are your top workplace priorities,  we discussed the decision of the Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131 (Workpac v Skene). In that case, it was held that casuals engaged with regular and predictable working hours may be entitled to the same payments and benefits, such as paid annual leave, as permanent employees under the National Employment Standards and any applicable industrial instrument, such as an award.

The decision resulted in regulatory reform; the Commonwealth Government introduced amendments to the Fair Work Regulations 2009 (Cth) to address "double dipping" concerns; that is, where an employee has been paid a casual loading, in part in lieu of annual leave, and then the employee gains an entitlement to paid annual leave in accordance with the WorkPac and Skene decision and as a result would be paid twice for the same entitlement.

Workpac also filed a separate test case to challenge the decision in WorkPac v Skene with respect to "casual" employees and clarify the position in relation to "double-dipping" to claim entitlements under the NES and/or relevant industrial instruments in addition to casual loadings. That test case was heard by the Full Federal Court last year, and awaits judgment.

It remains possible that either party will appeal the decision to the High Court and seek clarity on the treatment of casual employees and casual entitlements. This is a key area to watch in 2020.

Late last year the Australian Government released the second exposure draft of the Religious Discrimination Bill 2019 (Cth) (RD Bill 2).

If passed, the RD Bill 2 will bring legislative protections for religious beliefs and activity to the same standard as those already afforded under Federal anti-discrimination law against discrimination on a wide variety of attributes, including age, disability and sex. If the RD Bill 2 is enacted, employers will need to consider the impact of these new protections on their existing policies and practices, particularly in relation to the use of social media outside of work by employees.  In particular, employers should take care not to unreasonably encroach on religious activities undertaken by employees outside of their course of employment. 

However, the RD Bill 2, if passed, will not provide a blanket entitlement for employees of a particular religious belief to espouse their views in any context, and in any way.  The RD Bill 2 does not protect the expression of religious beliefs that are malicious, or that would (or are likely to), harass, threaten, seriously intimidate or vilify another person or group of persons, or allow or incite conduct that constitutes a serious offence.

The First Exposure Draft

The First Exposure Draft of the Bill was released on 29 August 2019, and was subject to significant scrutiny from industry and community advocacy groups.

One of the notable features of the First Exposure Draft was referred to as the "Folau clause" in the press (referring to the termination of Israel Folau's employment by Rugby Australia over a controversial Instagram post), which provided that it is unlawful discrimination for a business with annual revenue above $50 million to impose an 'employment requirement' limiting an employee's ability to express their religious views outside their employment, unless the condition is necessary to prevent "unjustifiable financial hardship" to their business.

Submissions on the First Exposure Draft contended that the "Folau clause" was inconsistent with other legal obligations imposed on businesses, including obligations under work health and safety legislation to reasonably prevent bullying and other conduct that could adversely impact the mental health and wellbeing of workers.

The Second Exposure Draft

After community consultation, the Second Exposure Draft (RD Bill 2) was released on 10 December 2019. Submissions can be made on this draft until 31 January 2020.

RD Bill 2 broadens the protection provided in some respects.  For example, religious hospitals, aged care facilities, and accommodation providers are permitted to take faith into account when making employment decisions.

RD Bill 2 also addresses some of the issues raised during consultation on the First Draft.  For example, RD Bill 2 now expressly contemplates that religious bodies:

• are permitted to give preference to people who share the religious body's religion (compared with people who are not of that religion); and
• will not be held to have engaged in discriminatory conduct if they engage in conduct to avoid injury to the religious susceptibilities of adherents of their faith (although this does not extend to conduct with otherwise unlawful under any other law of the Commonwealth, including the Sex Discrimination Act 1984).

RD Bill 2 has not, however, addressed concerns about the "Folau clause", in that subsection 8(3) still provides that an employer conduct rule – for example, a social media policy – that would have the effect of restricting or preventing an employee from making a statement of belief, other than in the course of the employee’s employment, is not reasonable unless compliance with the rule by employees is necessary to avoid unjustifiable financial hardship to the employer.

In practice, what this means is that, unless an employer with revenue above $50 million can demonstrate that a rule or code of conduct is necessary to avoid unjustifiable financial hardship, they will not be allowed to impose rules or codes of conduct on their employees which prohibit or limit the making of statements of religious belief in their free time, provided those comments are made in good faith, and could reasonably be considered to be in accordance with the doctrines, tenets, beliefs or teachings of the speaker's religion.

If passed, the Work Health and Safety Bill 2019 (WA) (WA Bill), which was introduced in December 2019, will modernise and consolidate existing Western Australian safety law into a single Act, covering all workplaces, to substantially mirror the national model WHS legislation. 

Some of the additional reforms proposed by the WA Bill involve Western Australia (like NSW) accelerating national review recommendations (See Other Developments below), including new industrial manslaughter offences (see our Safety Matters Alert for further detail) and a prohibition on insurance or other indemnities for WHS penalties.  Other reforms are more distinct to Western Australia, such as the inclusion of a new, specific duty of care for "WHS service providers".

2020 may see the first industrial manslaughter prosecution (under WHS laws) in Australia play out.  In October 2019, Workplace Health and Safety Queensland commenced a prosecution against Brisbane Auto Recycling Pty Ltd under section 34C of the Work Health and Safety Act 2011 (Qld). The prosecution relates to a fatality in May 2019 where a worker was killed by a reversing forklift.  Two of the company's directors have also be charged with engaging in reckless conduct that resulted in the death of a worker.  The case, if defended, is likely to provide guidance on the scope of the offence, and may impact on if and how, remaining jurisdictions decide to implement similar offences.

Queensland has also indicated its intention to extend industrial manslaughter laws to also apply to the resources sector in 2020. A bill was introduced into the Queensland Parliament on 4 February 2020 to amend safety laws in these industries.

In 2020 the industrial manslaughter offences legislated by Victoria and the Northern Territory in late 2019 will commence, increasing the total number of States and Territories with industrial manslaughter laws to four (see our Safety Matters Alert for further detail).

The Victorian offences will come into effect no later than 1 July 2020, while the Northern Territory provisions are expected to be gazetted early this year.

Western Australia's proposed industrial manslaughter laws are expected to be debated by the parliament over the course of the new year as part of the WA Bill introduced into the lower house late last year (see previous article).

We expect to see further developments in 2020 to prevent sexual harassment in the workplace and better manage its aftermath, both in Australia and the UK.

The Australian Human Rights Commission's report into its National Inquiry into Sexual Harassment in Australian Workplaces was due to be released in late 2019.  We expect it will be released in 2020.

The Inquiry is the first of its kind globally. It ran for 12 months and examined systemic issues underlying sexual harassment in the workplace, the economic impact of sexual harassment, the adequacy of the existing legal framework, and will provide recommendations for change in order to better prevent sexual harassment in the workplace. In doing so, the Inquiry undertook in depth research on sexual harassment, conducted national consultations and invited public submissions.

During 2019, the UK government responded to a consultation on possible measures to prevent the misuse of confidentiality clauses or NDAs to settle workplace harassment or discrimination complaints. The UK government announced its intention to introduce legislation curbing the use of NDA provisions in employment contracts and settlement agreements. No date has yet been set for the introduction of these reforms. However, it is likely that there will be some further developments, possibly including further consultation or draft legislation on NDAs and the broader issue of sexual harassment in the workplace, during 2020.

Labour hire licensing is another regulatory area that is set to expand in 2020 and beyond. 

The Queensland scheme

Prosecutions of non-compliant labour hire providers in Queensland are expected to ramp up in 2020, as the Queensland Government continues to demonstrate its appetite to more tightly regulate this industry.

In 2018, the Queensland Labour Hire Licensing Act 2017 commenced, which establishes a mandatory licensing scheme to 'protect labour hire workers and support responsible labour hire providers'.

The scheme, administered by the Office of Industrial Relations, requires all labour hire providers operating in Queensland to be licensed under the scheme (which includes labour hire providers based interstate or overseas who supply workers in Queensland).Labour hire providers who apply for registration under the scheme are required to demonstrate that they are a fit and proper person to supply labour, that they are financially viable, and that they are (and will) comply with relevant Queensland laws.

In the two years since the scheme began operating, the Queensland Government has taken seriously its commitment to tightly regulate the labour hire industry.  As at October 2019, there had been approximately 135 licence applications withdrawn, 18 licence applications refused, 164 licences suspended, 38 licences cancelled, and 14 licences granted with conditions. 

Prosecutions of labour hire companies failing to comply with the scheme are also on the rise.  In October 2019 alone, three separate labour hire providers were prosecuted, each of whom were fined between $25,000 to $75,000 for contravening the Act.

The new Victorian scheme

2019 saw the commencement of the Victorian labour hire licensing scheme, administered by the new Labour Hire Authority.  The Victorian scheme now operates such that only labour hire providers that have been granted a licence, or have a decision pending on their application, are allowed to operate in Victoria. 

At the time the scheme commenced, approximately 3,841 license applications had been received, and 464 approvals had been granted (although providers who lodged their application prior to the commencement of the scheme, but who had not received a response to their application, are permitted to continue operating as normal until a decision is made to grant/refuse the license).

A proposed national approach

Last year, the Commonwealth Attorney-General also revealed to the Senate's Education and Employment Committee that he had reached out to State and Territory counterparts to kick-start discussions about a national labour hire licensing scheme.  This national initiative comes off the back of Victoria and Queensland introducing and administering their own schemes, as discussed above, and recommendations from the Migrant Worker Taskforce.

South Australia has also introduced its own scheme, and although it currently remains in force, the incumbent Liberal South Australian government has announced its intention to amend the South Australian scheme to narrow its scope to the horticulture, meat and seafood processing, cleaning and trolley collection industries.

The Commonwealth Attorney-General's proposed national scheme would regulate labour hire licensing in what he considers four high-risk sectors:  cleaning, horticulture, meat processing, and security.  However, the Attorney-General has also acknowledged that in implementing a national scheme for these sectors, regard should be had to minimising the administrative burden that comes with duplicate schemes at a national and state level. The Commonwealth Attorney-General proposed eight guiding principles for a national scheme:

• Mandatory registration: Mandatory registration for labour hire operators
• Scope: National scope to "capture appropriate labour hire arrangements"
• Coverage: To cover "high-risk" sectors, and otherwise coverage would be subject to stakeholder consultation
• Registration: Labour hire operators would register and supply prescribed information about the owners/operators and the business
• Fees: Registered labour hire operators would pay annual fees
• Approval process: The Fair Work Ombudsman would manage the scheme (and registration and compliance)
• Public register: The Government would maintain a public register of registered labour hire operators
• Host penalties: Hosts will face penalties if they use unregistered labour hire operators

Looking to 2020

In the year ahead, we expect that the Commonwealth Attorney-General will continue to pursue a proposed national labour hire licensing scheme for cleaning, horticulture, meat processing, and security, and may consult with industry on the proposal.  We also anticipate that other States and Territories will consider whether to adopt their own schemes, in the same vein as Queensland and Victoria.

Nationally, labour hire providers should be mindful of compliance with the Queensland and Victorian scheme, particularly in light of the focus Queensland is currently placing on prosecuting non-compliance.

Following the Federal Election in 2019, there have been calls for industrial relations reform by employer and business groups. The Prime Minister has asked the Attorney-General, in his capacity as Minister for Industrial Relations, to take a "fresh look" at Australia's industrial relations system to identify how it is operating and where there are impediments to shared gains for employers and employees. The progress of these considerations and any potential reforms will be a key area for employers to watch in 2020.

The Attorney-General's Department has issued discussion papers and invited submissions on three discrete aspects of the industrial relations system:

• Improving protections of employees' wages and entitlements: strengthening penalties for non-compliance
• Attracting major infrastructure, resources and energy projects to increase employment – Project life greenfields agreements
• Cooperative Workplaces – How can Australia capture productivity improvements from more harmonious workplace relations

In a year where compliance with workplace laws and payment obligations has been in the spotlight, the penalties paper considers the adequacy of the existing civil penalty framework in the Fair Work Act and the introduction of criminal sanctions for the most serious forms of exploitative workplace conduct.

Recognising the significance of major infrastructure projects to the Australian economy, the greenfields paper flags a proposal to extend the nominal life of greenfields agreements to the duration of a project, promoting the industrial certainty needed to attract investors and limiting project delays and costs incurred due to protected industrial action.

Starting from the premise that widespread improvements at the enterprise level translate to stronger economic performance across the economy, the cooperative workplaces paper seeks submissions from the private sector on "best practice" collaborative techniques that drive business performance and productivity, job creation and better outcomes for employees.The closing date for submissions is 28 February 2020.

We can expect industrial relations reform to garner further attention in 2020, with the Attorney-General already flagging additional discussion papers on topics as wide ranging as the compliance and enforcement tools available to the Fair Work Ombudsman and the Courts, mechanisms to recover unpaid wages, the Small Business Fair Dismissal Code, casual employment, enterprise bargaining and the Commonwealth Construction Code.

For employers wanting to make enterprise agreements, compliance with enterprise bargaining and pre-approval processes has been an increasingly detailed and challenging area. It will remain a priority for 2020 for those who engage in enterprise bargaining, so that their agreements are properly made and able to be approved by the FWC and not subject to challenges as to its validity.

For more information, see our January 2020 Employment Alert.

We expect to see amendments to the model WHS legislation in the course of 2020, following SafeWork Australia's publication of the final report of Marie Boland's national review of the model WHS laws, in February 2019.  To date, Victoria and the Northern Territory have responded by enacting industrial manslaughter offences (see above), NSW has prepared a comprehensive response as below, but the response of other states and territories is yet to be seen.

In June 2019, SafeWork Australia released a Consultation Regulatory Impact Statement (RIS) on the anticipated impact of implementing the review's 34 recommendations and feedback closed on 5 August 2019 (see our Safety Matters Alert).  SafeWork Australia was anticipated to provide a Decision RIS to Ministers late last year.  Assuming this timetable has not been delayed, we should expect to see amendments to the model WHS legislation in the course of 2020.

Whatever the timing of the revised model legislation, NSW is on track to legislate a number of the national review recommendations in the first half of the year, with proposed amendments to the Work Health and Safety Act 2011 (NSW) introduced into the lower house on 12 November 2019 (NSW Bill).  The NSW Government has emphasised that careful consideration has gone into selecting which proposals should be pursued, focusing on those which are likely to be made to the model laws in due course.  So, the proposed legislation may provide some useful insight into the direction that SafeWork Australia and Ministers will take later this year.

Some of the key issues contained in the NSW Bill are: 

Reference to existing manslaughter offence

As noted in our recent Safety Matters Alert, the NSW Bill opts to confirm the application of the existing criminal offence of manslaughter rather than introducing a new offence of industrial manslaughter. The proposed amendments would insert a note at the start of the offences and penalties division of the Act to make it clear that, in certain circumstances, workplace deaths may be prosecuted as manslaughter under the Crimes Act 1900 (NSW).

"Enhanced" Category 1 offence

The NSW Bill seeks to introduce gross negligence as an alternative fault element to recklessness for Category 1 offences. Unlike recklessness, gross negligence will not require the Prosecutor to prove matters relating to the subjective state of mind of the defendant, making it easier for the Regulator to successfully impose the highest penalties in response to the most serious of breaches.

Significant increases to penalties

The NSW Bill seeks to increase the penalties for Category 1 offences to up to five years' imprisonment or a fine of $346,500 for individuals and a fine of $3,463,000 for corporations.  The NSW Bill also seeks to increase maximum penalties to reflect increases in the CPI since 2011 and create a mechanism to ensure that penalties continue to increase annually on this basis.

Prohibition of insurance for WHS penalties

The NSW Bill seeks to make it an offence to enter into, provide or benefit from insurance or indemnity arrangements that cover a person's liability for a monetary penalty for a WHS offence.  The amendments are not proposed to apply retrospectively, but would apply to any roll-over or renewal of arrangements.

Both insurers and PCBUs would be liable under the new offence, which also extends to officers where the person aids, abets, counsels, procures, induces or is otherwise knowingly involved in the offence.

Policies that provide for coverage for legal fees for safety investigations and prosecutions are not captured by the proposed offence.

Increased Inspector powers

The NSW Bill seeks to increase the scope of Inspector powers in order to "streamline" investigative processes. The amendments will, amongst other things, enable an inspector to continue to exercise their powers under section 171 (to require production of documents and answers to questions) up to 30 days after they or another inspector has entered a workplace, without having to re-enter that workplace.

The changes may indirectly benefit PCBUs and workers by minimising the disruption to business and the potential distress for those affected by a workplace fatality or injury that tends to accompany multiple inspector attendances.

The status of workers engaged to perform work as an "employee" or "contractor" is a perennial issue. In 2020, the future of work and worker status will continue to be a focus of regulatory consideration and litigation in Australia, the United Kingdom, and throughout Asia – particularly focussed on contemporary labour models.

Australia

United Kingdom

In the UK, the appeal of the Aslam v Uber BV case concerning the status of a driver is due to be heard by the UK's highest court in 2020. There are a number of other cases making their way through the employment tribunal system concerning worker status. 

Employment status will also be a focus for employers who engage individuals through self-employed or consultancy arrangements, as tax changes are due to come into effect in the UK from April 2020 which extend existing "off-payroll" tax rules to large and medium-sized companies in the private sector.  These rules can cause a person to be in "deemed" employment for tax purposes, and will increase the compliance burden and tax bill for many companies.

With effect from April 2020, a number of UK legislative changes under the Employment Rights Act 1996 (UK) come into effect including a new right for all workers (not just employees) to receive a written statement of terms, and some further rights for agency (labour hire) workers. The reforms will not apply to self-employed independent contractors. The Conservative party also indicated that it wants to encourage flexible working as a default, and to increase access to family-friendly leave.

Consideration by the UK Government dealing with individual worker rights is likely to be a continued focus.

Asia

In Asia,  the status of workers and self-employed persons has also been a focus of public debate. In Singapore, the Tripartite Alliance (a body established by the Ministry of Manpower (MOM), National Trades Union Congress, and Singapore National Employers Federation) has issued a Tripartite Standard for Contracting with Self-Employed Persons. The Ministry of Manpower has also released a statement concerning its support and programs for self-employed persons, including "Contribute-as-you-Earn" schemes for healthcare insurance, and also income supplements. Further reforms or guidance materials will be a likely focus of the Government in this area.

The Modern Slavery Act 2018 (Cth) commenced on 1 January 2019. Some Australian entities will be required to issue their first Modern Slavery Statement under this Act by 31 December 2020.

The Act requires entities with an annual consolidated revenue of more than $100 million to report annually on the risks of modern slavery in their operations and supply chains, and actions to address those risks.  While the Modern Slavery Act 2018 (NSW) was expected to commence on 1 July 2019, a commencement date has not yet been proclaimed.  When the NSW Act will commence (or whether it will commence at all) is unclear.

Entities that fall within the scope of the laws should review existing policies to monitor and combat modern slavery and conduct audits on suppliers and supply contractors to identify and mitigate any modern slavery risks prior to the first reporting deadline.

Entities are required to provide their first Modern Slavery Statement within six months after the entity's first 12-month reporting period, which can be a financial year, or another annual accounting period applicable to the entity, starting after 1 January 2019.  For entities whose annual accounting period is the calendar year, the first statement will be due by 30 June 2020.  For entities with a financial year accounting period, the first statement will be due by 31 December 2020.  

Employers commonly use managerial or salaried staff to cover the work of employees engaging in strikes or other forms of protected industrial action.  In 2019, the AMWU raised a novel argument that such an approach constitutes unlawful adverse action against striking employees: AMWU v O-I Operations (Australia) Pty Ltd [2019] FCA 1272.

In considering the union's application for an interlocutory injunction to restrain a glass manufacturer from deploying managerial and salaried staff to cover the maintenance work usually performed by striking maintenance employees, the Federal Court accepted that the conduct might amount to adverse action by altering the position of the maintenance employees to their prejudice.  However, the Court was not satisfied that the adverse action was taken for any unlawful reason, emphasising that the use of staff was actuated by the need to get the work done and not as a form of punishment or pay back to maintenance employees for engaging in the action.

Whilst it is difficult to envisage a circumstance in which the use of managerial or salaried staff as contingency workers during protected industrial action would constitute unlawful adverse action, employers should be cautious about continuing to use staff to perform the work after the industrial action has ceased and should ensure that the decision to use staff is not unlawfully motivated.  Employers also need to consider work health and safety risks if staff are not properly trained to perform the work, and whether using staff would be in breach of the terms of the enterprise agreement.

A key focus for the Coalition Government in 2019 was its proposed, and unsuccessful, Ensuring Integrity Bill.  We expect that the Government will come back to the Parliament in 2020, seeking to have the revised bill passed as quickly as possible when they resume next week.

The Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 (Cth) was put to the Senate in July 2019 after passing the House of Representatives, and sought to (amongst other things):

• amend the Fair Work (Registered Organisations) Act 2009 (FW(RO) Act) to include prescribed offences which, if committed, would lead to registered organisations being automatically disqualified; and
• provide the Federal Court with the power to: disqualify officials from holding office; cancel the registration of an organisation; and appoint an administrator to an organisation.

However, in November 2019, the Senate voted down the Bill.

This is the second time such legislation has failed to be passed by both houses of Parliament, after the Turnbull Government failed to secure support for similar legislation in 2017.

Looking to 2020

The Coalition intends to seek reforms to the FW(RO) Act and introduced further amended legislation to the Senate on 5 December 2019 – aptly titled, the Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill 2019 (Cth) (Ensuring Integrity No. 2).

Ensuring Integrity No. 2 contains checks and balances including that:

• the Minister must trigger an independent review of the amendments to the FW(RO) Act to be undertaken after two years of Ensuring Integrity No. 2 being assented to by the Governor-General;
• there are additional factors to be considered and applied when determining whether an organisation should be disqualified.These include:
• a disqualification order to be made, it must be established that the 'disqualification would not be unjust; and
• a person must be shown to be 'not fit and proper'.

Ensuring Integrity No. 2 also includes an additional Schedule, which details the functions of the Registered Organisations Commissioner.

The substantive provisions of Human Rights Act 2019 (Qld) commenced operating on 1 January 2020.  The Act forms part of a suite of administrative laws in force in Queensland, and holds the State government to account for actions which are incompatible with human rights

For example, the Act requires "public entities" in Queensland to consider human rights during all decision-making processes, and only constrain human rights in certain circumstances and after careful consideration by the decision-maker.  "Public entities", for the purposes of Act, include Queensland Government departments and agencies, public service employees, police officers and Ministers, and other organisations that perform functions of a public nature on behalf of the state.  Courts and tribunals are public entities only when they are acting in an administrative capacity, and not when exercising judicial functions.

The Act protects 23 fundamental human rights drawn from international human rights law, including:

• recognition and equality before the law;
• right to life, liberty and security of person;
• freedom of thought, conscience, religion and belief;
• privacy and property rights;
• freedom of expression, peaceful assembly and association;
• protection of rights in criminal proceedings; and
• protection of cultural rights, with special protection for the cultural rights of Aboriginal and Torres Strait Islander peoples.

The Act requires all new Bills introduced before the Parliament of Queensland to be accompanied by a statement outlining the extent to which the Bill is compatible with the human rights protected by the Act, and if applicable, an explanation as to why any incompatibilities are reasonable and justifiable.  The Act also requires all existing statutory provisions to be interpreted in a way that maximises compatibility with human rights.

The Act provides an avenue for an individual to commence legal proceedings seeking relief or remedy (but not damages) in the event that a public entity fails to comply with its obligations under the Act, provided that the individual belongs to a class of persons whose human rights have been limited by the relevant decision.

The Queensland Human Rights Commission is also empowered to investigate complaints against decisions made by public entities which allegedly breach the obligations imposed on them by the Act.  If the Commissioner decides to investigate and resolve a complaint, they may direct the parties to attend a conciliation session.

The Victorian Parliament introduced the Gender Equality Bill 2019 (Vic) (GE Bill) on 26 November 2019.  If passed, it will impose new obligations on the Victorian public sector, universities and local councils to plan, implement strategies and report on gender equality in the workplace.  These entities will also be required to promote gender equality across the wider community through considering how policies, programs and services impact people of different genders.

The main features of the GE Bill are:

• a requirement for certain Victorian public sector organisations to develop, implement and publicly report on progress against Gender Equality Action Plans;
• a requirement that covered entities undertake Gender Impact Assessments on certain policies, programs and services to consider the impact on people of all genders;
• the development of tailored targets and quotas through regulations, drawing on baseline data provided by organisations as part of their first Gender Equality Action Plans, jurisdictional comparisons and best practice research;
• a requirement that covered entities report on progress against key indicators of workplace gender equality and any applicable targets or quotas, as well as progress on the implementation of strategies and measures within Gender Equality Action Plans;
• a proposal that purchasing and funding guidelines be issued to ensure that the Victorian Government promote gender equality through procurement and funding policies and practices;
• a compliance framework and the introduction of a body to perform education, enforcement, monitoring and compliance functions.

The GE Bill will apply to certain organisations that have 50 or more employees, including:

• public service bodies;
• public entities;
• special bodies (as defined by s 6 of the Public Administration Act 2004 (Vic));
• local government;
• universities;
• Court Services Victoria; and
• the Office of Public Prosecutions.

Overall, over 300 organisations will be covered by the GE Bill.  All covered entities under the GE Bill will be required to take action to achieve workplace gender equality and promote gender equality across the wider community.

The GE Bill also establishes the Public Sector Gender Equality Commissioner, who will promote and advance the objectives of the GE Bill and perform monitoring, compliance and enforcement functions.  In certain circumstances, the Public Sector Gender Equality Commissioner can take steps to ensure defined entities comply with their obligations under the GE Bill.

If passed, the GE Bill will commence on 31 March 2021, to provide covered entities with enough time to understand, prepare for and meet their obligations.

For employers with a UK presence, Brexit remains an issue to watch.  Having won the December 2019 general election, the Conservative party has taken Britain out of the EU on 31 January 2020. The next year will involve significant negotiations on the terms of the trade deal between the UK and EU, and possibly also between the UK and USA.  In terms of what this means for employment law, the Conservative party's election manifesto stated that workers' rights currently guaranteed under EU law would be replicated in UK law at the time of Brexit, but no guarantee is given as to future harmonisation with the position in the EU.

Freedom of movement is expected to apply until 31 December 2020, and the rights of EU citizens to live and work in the UK beyond 31 December 2020 is intended to be protected provided they are UK-resident by that date.  However, a key issue will be details of the new immigration system which will be required after 31 December 2020.  The Conservative party has indicated that it intends to bring in an Australian-style points based immigration system, prioritising those with good education and qualifications and treating EU and non-EU citizens equally.

During 2020, employers in the UK who currently employ European nationals may want to consider providing these individuals with support and information in relation to the process for applying for settled or pre-settled status.  Employers should keep abreast of Brexit developments more generally, and consider how changed immigration requirements and/or sector-specific changes due to a trade deal with the EU may affect their business operations and staffing going forward.

We may also see further details during 2020 of other reforms that have recently been the subject of UK government consultation, such as in relation to ethnicity pay gap reporting and workplace health and wellbeing.  

For further discussion about proposed developments in the United Kingdom in 2020, see our United Kingdom colleagues' December 2019 Employment Briefing.

With uncertain economic conditions, we expect 2020 to bring a further tightening of rules around the hiring of foreign workers in the Asia Pacific region.  In 2019, we saw increased enforcement of regulations regarding the presence of foreigners in Thailand and changes to the types of roles that can be filled by foreigners in Indonesia.  Already in 2020, the Singapore government has announced its intention to update the Fair Consideration Framework, a policy that requires employers to maintain a "Singaporean core" and sets out mandatory requirements that must be met before a foreigner can be hired in a professional or managerial role.

Legislative changes will take effect in a number of jurisdictions in 2020 to provide employees with enhanced terms and conditions, such a shorter notice period for termination of employment in in Japan, additional leave types in South Korea and increased paternity leave in Hong Kong SAR.