Domestic violence leave and family friendly work arrangements
Domestic and family violence leave and family friendly work arrangements remain issues of public importance in 2018. Over 1.6 million Australian workers now have access to paid domestic and family violence leave in union negotiated workplace agreements. Arising from this, we anticipate there will be a continued push by employees and unions for domestic and family violence leave.
In late 2016 Queensland became the first state in Australia to introduce legislated domestic and family violence leave arrangements in the Industrial Relations Act 2016 (Qld).
In 2016 the ACTU made a claim as part of the four yearly review of modern awards to include in all modern awards an entitlement to ten days' paid family and domestic violence leave per year and an additional two days of unpaid leave on each occasion. Ultimately, the unanimous decision of the Full Bench of the FWC was to reject the ACTU’s claim, however Deputy President Gooley and Commissioner Spencer expressed the preliminary view that all employees should have access to unpaid family and domestic violence leave. They also said that employees should be able to access personal/carer's leave for the purpose of taking family and domestic violence leave. In a Statement issued on 19 October 2017, President Ross confirmed that there was progress towards a measure of agreement in relation to a draft model unpaid family and domestic violence leave term.
On 5 December 2017 the Federal Opposition also announced that it is committed to including the right to ten days' paid domestic and family violence leave in the National Employment Standards.
Against this background, employers can expect increasing pressure to introduce paid domestic and family violence leave for their employees. This raises a number of important considerations, including the relationship with paid personal/carer's leave and the breadth of the specific circumstances in which domestic and family violence leave can be accessed.
Family friendly work arrangements
On 12 January 2018, the FWC released a Statement and published three background papers as part of its four yearly modern award review proceedings.
These papers also deal with casual conversion. Submissions are due by 4pm on Friday 2 February 2018.
Scope of bullying and unfair dismissal regimes under FW Act
In 2018, we can expect that unions and employees will continue to test the scope of the bullying and unfair dismissal regimes under the FW Act.
In 2017 we saw the bullying scheme under the FW Act applied in an expansive way. Of particular note were the decisions of Trevor Yawariki Adamson [2017] FWC 1976 (where the Chairperson of an Executive Board was held to be a "worker" within the meaning of the scheme) and Lynette Bayly [2017] FWC 1886 (where the Commission issued an interim order preventing an employer from continuing an investigation and taking disciplinary action against an employee, pending the determination of the employee's application for a stop bullying order).
Similarly, a Full Bench of the FWC took a broad approach to the concept of dismissal under the unfair dismissal regime in the decision of Khayam v Navitas [2017] FWCFB 4092, finding that where a maximum term contract expires and is not renewed this may be a termination of the employment at the employer's initiative.
Our Employment Alerts about these decisions can be accessed here.
Changes to immigration and citizenship laws affecting worker mobility
Changes to immigration and citizenship laws will remain in the spotlight in 2018.
Reforms to the work visa regime will see the abolition of the temporary work (skilled) subclass 457 visa program in March 2018. Existing 457 visas will remain in effect, meaning any foreign worker holding a 457 visa will be permitted to remain in Australia until the expiration of their visa. Where an employer can demonstrate genuine skill shortages they will continue to be able to recruit and employ foreign workers through the new Temporary Skill Shortage (TSS) visa program, although the TSS will introduce new eligibility criteria and change the visa validity periods for some foreign workers.
Employers and foreign workers will also need to navigate corresponding reforms to the permanent skilled work visa programs. The Employer Nomination Scheme and the Regional Sponsored Migration Scheme will undergo further reforms, associated with the introduction of the TSS visa, which will involve further restrictions to eligibility criteria. The changes will include:
- an increase in the time duration for transition to permanent residency (from two years to three years)
- a maximum age limit (45) for all applicants
- increased work experience requirements
- changes to the use and composition of occupation lists; and
- payments to the Skilling Australians Fund (as a method of demonstrating commitment to, and investment in, the training of Australian workers for each foreign worker who is nominated by an employer).
Employers should consider the upcoming changes both in terms of any affected employed foreign workers and the impact on future workforce planning.
Citizenship will also continue to be a hot topic in 2018. Potential citizenship applicants have been given a reprieve from tightened citizenship eligibility requirements following the rejection of the Australian Citizenship Legislation Amendment (Strengthening the Requirements for Australian Citizenship and Other Measures) Bill 2017 by the Australian Parliament. However, employers and foreign nationals should continue to monitor developments for proposed changes in 2018 and beyond.
Penalty rates
We don't expect to see significant movement on penalty rates in 2018.
A challenge by United Voice and the Shop, Distributive and Allied Employees Association to overturn the FWC's decision to reduce Sunday and penalty rates in a number of modern awards was dismissed by a Full Court of the Federal Court in October 2017 (see Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 (11 October 2017).
The Hon. Senator Doug Cameron sought to introduce amendments to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 which would have the effect of reversing the FWC's decision. Recent reports indicate that the amendments do not have the support required.
In the meantime employers are well advised to review the arrangements for the phasing in of reductions to Sunday rates in the General Retail, Fast Food, Restaurant, Pharmacy and Hospitality Industry Awards which have effect from July each year.
Four yearly modern award review
It is also unlikely that 2018 will see the start of another four yearly review of modern awards – the last review hasn’t finished yet!
In accordance with section 156 of the FW Act, the second four year review is due to commence as soon as practicable after 1 January 2018. The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 provides for the repeal of the requirement for the FWC to conduct four yearly reviews of modern awards. However, this Bill is not yet law.
In light of the volume of work still required to complete the First Review, the President of the FWC has expressed the provisional view that it is not practicable to commence the Second Review until the First Review has been completed and parties have had the opportunity to consider how the modern awards reviewed under the First Review operate in practice. The FWC sought submissions on the President’s provisional view by 21 December 2017.
Anti-bribery policies and procedures
Early 2018 is the time to review and update your organisation's anti-bribery policies and procedures.
On 6 December 2017, the Australian Government introduced the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 into Parliament.
The new laws will mean that companies need to have "adequate procedures" in place to proactively guard against foreign bribery, or else they may automatically be held responsible for bribery committed for the profit or gain of the company by its employees, contractors and other service providers, even if the company had no knowledge of the bribery.
Changes to chain of responsibility laws
Changes to the chain of responsibility provisions in the Heavy Vehicle National Law will commence in mid-2018. The new laws will provide that every party in the heavy vehicle supply chain has a positive duty to ensure the safety of their transport activities.
All parties in the supply chain will have a primary duty to ensure, so far as is reasonably practicable, the safety of the party’s transport activities relating to a vehicle. Parties must, so far as is reasonably practicable, eliminate or minimise public risks to safety.
Executive officers of a legal entity will have due diligence obligations to ensure that the entity complies with its primary duty.
These changes better align the HVNL with the model WHS laws, and will be relevant to entities who use heavy vehicles as part of their supply chain, including through the engagement of contractors.
Brexit
The UK Government formally started the Brexit ball rolling by triggering Article 50 of the EU treaty on 29 March 2017, and the negotiations between the United Kingdom and European Union over the Brexit process will continue into 2018. With just over one year until 29 March 2019 when the clock expires on the two year Brexit negotiation period, there remains much yet to be agreed. This means that as 2017 drew to a close there was considerable uncertainty about how a post-Brexit UK will look. That uncertainty has led some companies to begin the process of moving operations and employees elsewhere, and it is likely that that will continue into 2018.
However, the prospect of a "cliff-edge" Brexit (without a negotiated exit) has abated. In December, the UK government reached an in-principle agreement with the European Commission on three key areas of negotiation: the status of UK nationals living in other member states and of EU citizens living in the UK, Northern Ireland and the financial settlement. The basic principle in terms of citizens' rights is that both UK and EU citizens will be allowed to continue exercising the EU-derived rights that they were already exercising as at the date of the UK's withdrawal. This means that UK companies who employ locally-resident EU citizen workers (and vice versa) will likely be able to continue employing them post-Brexit without the need for new immigration arrangements. However, businesses will still need to keep a close eye on the negotiations and the shape of the UK and European countries' post-Brexit immigration policies.
It seems unlikely that there will be immediate or profound changes to UK employment law as a result of Brexit. The so-called "Great Repeal Bill", introduced during 2017, copies EU law into UK law, with the result that post-Brexit the UK parliament will then be able to pick and choose which parts of EU law to keep and which to amend or repeal. Workers' rights formed a prominent part of both major parties' campaigns during the 2017 general election and there is little political will to wind back the protections that EU law provides for workers. However, there may well be some medium to long term changes depending on the economic and political climate in the UK.
You can read more about Brexit, and keep up to date with the latest developments, at Ashurst's Brexit Hub.
European General Data Protection Regulation
2018 will be a very significant year for privacy and data protection law.
Australia
In Australia, businesses should be preparing for the Notifiable Data Breaches scheme which will take effect from 22 February 2018. The scheme applies to all organisations and agencies that already have obligations under the Privacy Act 1988 (Cth) in respect of personal information. This scheme introduces an obligation to notify people whose personal information is involved in a data breach that is likely to result in serious harm.
Global
The European General Data Protection Regulation (GDPR) will become directly applicable in all EU member states from 25 May 2018. The GDPR affects all businesses established in the EU which are controllers or processors of data. For businesses which are established in EU countries, the significance of the GDPR is that it will apply to data controllers and data processors who are not established in the EU and who process data which relates to data subjects who are within the EU, irrespective of where the data is processed. Previous legislation only applied to controllers established outside the EU who processed data within the EU.
Businesses will be working hard during the first half of 2018 so that they can be GDPR-ready by 25 May 2018. Australian employers should take this opportunity to consider whether the GDPR might affect them and, if so, the steps that will need to be taken to comply. Of particular relevance in relation to employees is the GDPR's stricter approach to consent as a lawful basis for data processing – it will be much harder under the GDPR to show that employees have freely given consent to their data being processed by their employer, particularly where consent is set out in an employment contract. Further, under the GDPR individuals will have increased rights to access their personal data held by their employer.
You can read more about the GDPR and our suggested steps towards compliance here.
