Moores’ child safety experts, Skye Rose and Rena Ou Yang were recently interviewed as guest speakers for the Child Safeguarding Podcast by Poynting Consulting and Advisory. The Child Safeguarding Podcast explores how people and organisations are embedding the National Principles for Child Safe Organisations and creating child-safe environments to protect children from abuse, neglect and exploitation in Australia.
Moores is dedicated to facilitating child safe organisations and empowering children and young people. From preventative work to responding to concerns, we harness our expertise to ensure a supportive and child centered approach. Learn more about our expertise in child safety.
2020 was one of the most turbulent years for employers and employees in recent memory, and now is a great time to review your workplace relations strategy for 2021.
We saw worldwide recessions, state directed lockdowns, and pressure for employers to rapidly pivot to remote and virtual working environments.
From a workplace relations perspective, the pandemic prompted much more than a temporary homeworking experiment and a short term logistical challenge. It tested the foundation upon which our working lives operate, and required organisations, leaders and employees to embrace significant changes to the status quo.
In the midst of these challenges, the federal government moved swiftly to establish IR Working Groups tasked with finding ways to urgently rebuild jobs lost as a result of COVID-19, while our federal courts interpreted historical workplace legislation through the lens of a global pandemic.
For good or for bad, the challenges of 2020 present a learning tool for your workplace relations strategy moving forward. In this article we explore the key learnings from 2020, and what to expect for the year ahead.
One positive outcome of the pandemic is that many industries have embraced remote working.
Working from home arguably offers opportunities to improve our working lives – be it through reduced commuting, greater efficiency and productivity, or flexibility to integrate our professional and personal responsibilities.
For industries that continue to embrace remote working or move towards hybrid models, employers need to balance the improvements with the emerging risks:
One of the additional challenges with continued remote or hybrid working models is a perceived lack of employer visibility regarding EEO compliance.
The rise of remote working has seen bullying, discrimination and harassment materialise in different ways:
We’re also likely to see debate about the extent to which employers can direct employees to obtain a COVID-19 vaccination, with some objecting to the direction on the basis of their disability, religion or political belief.
These challenges present an opportunity for employers to revisit their EEO compliance training and ensure it is contemporary and fit for purpose.
Did you hear about the two teenage entrepreneurs that made $70,000 over the course of a few months operating an E-Commerce store and selling brainteaser puzzles to bored Australians during lockdown?
2020 has seen the rise of the side hustle, enabling people to pursue creative interests or source alternative income.
It is generally settled that an employee’s private life is ‘out of bounds’ and beyond an employer’s jurisdiction. In very limited situations, an employer may have some rights to regulate an employee’s external activities, which may include circumstances where the:
The circumstances of each case will impact an employer’s options to respond to the issue.
Importantly, employers should ensure that any disciplinary action is proportionate to the relevant conduct. In Jackman v Lek Supply Pty Ltd [2018] FWC 6154, Commissioner McKinnon ordered reinstatement of a worker dismissed for conducting personal business affairs during work hours (specifically, the employee had responded to a customer complaint relevant to her hobby business making and selling candles and other related goods).
In this case, the Commissioner acknowledged that, during working hours, the employee should have devoted her full attention to her employer’s interests. However, the conduct could have been rectified by a written warning, and there was no evidence to suggest that her employment duties and personal interests could not co-exist. This can be contrasted to other situations where external activities encroach on an employee’s ability to perform two jobs (e.g. see Bertos v Northern NSW Football Limited [2020] FWC 2819), or where an employee uses an employer’s email and customer lists to set up a related business (e.g. see Post v NTI Limited [2016] FWC 1059).
Long term casual employment remained an unresolved issue for employers throughout 2020, particularly following the judgement in WorkPac Pty Ltd v Rossato [2020] FCAFC 84 whereby the full federal court:
At the time of writing, the High Court has granted special leave for the Full Federal Court’s decision to be appealed, although in the absence of a national and legislated definition, casual employment remains a void of ongoing uncertainty for employers.
The federal government’s IR Omnibus Bill, which passed through both houses of parliament in December 2020, proposes to curb this uncertainty by offering the following definition of casual employment:
“A person is a casual employee of an employer if:
However, we can expect the Omnibus Bill to face continued opposition and criticism in the coming months, including from the Australian Labour Party whom have described the proposed legislation as ‘the worst attack on workers since WorkChoices’.
For the most egregious underpayments, the federal government’s IR Omnibus Bill proposes to introduce criminal prosecution for employers that dishonestly engage in a systematic pattern of underpaying employees.
Maximum penalties are set to involve four years imprisonment, $1.11 million fines for individuals and/or $5.55 million fines for corporations.
It is not entirely clear how, if at all, the federal reforms will interact with the existing Victorian Wage Theft Act 2020 which is due to commence on 1 July 2021. It is possible that, should the federal government’s IR Omnibus Bill be enacted into law, the validity of the Victorian legislation could be challenged on constitutional grounds, rendering it obsolete.
However, irrespective of which regime will apply in 2021, employers can expect regulator powers (such as the Fair Work Ombudsman) to expand with a view to facilitating coercive measures, enforcement and deterrence.
Now more than ever, employers are urged to audit or health check their compliance systems to ensure they are providing minimum employment entitlements under the National Employment Standards and their applicable industrial instruments.
If you would like support on your workplace relations strategy and future proofing your organisation, please contact do not hesitate to contact us.
Click here to register for a link to our recent webinar recording which takes a fresh look at workplace relations in 2020, and how you can best prepare your organisation for what lies ahead,
On 30 October 2020, the Government published the Issues Paper and Terms of Reference (Issues Paper) for its review of the Privacy Act 1988 (Cth) (the Privacy Act).
The review builds on the Government’s announcement in March 2019 of reforms to increase the maximum civil penalties under the Privacy Act and develop a binding privacy code to apply to social media platforms and other online platforms that trade in personal information.
Large scale reforms also will likely mean that, for the first time since the Privacy Act was introduced in 1988, small and micro organisations, including charities, churches, schools and early childhood services which have a turnover of less than $3M will be required to comply.
This arguably represents a significant imposition on a sector which has already seen a drop in income in 2020, even as demand for services, particularly welfare and mental health, has boomed. It is likely to continue to place pressure on smaller organisations to merge to gain economies and scale and be positioned to attract funding. This is not without impact on sector diversity and jobs. Other important mooted changes include:
If implemented, these changes would require organisations to reconsider how they define personal information and necessitate technological change in order to implement and operationalise the reforms. We detail what steps your organisation may need to take to respond to these amendments.
Removal of the small business exemption
Currently, organisations with a turnover of less than $3 million do not need to comply with the Privacy Act. The Government is considering the appropriateness of this threshold and considering its removal. This change would dramatically increase the number of organisations that need to comply with the Privacy Act.
Definition of personal information
In order to keep up with technological advancement, the Australian Competition and Consumer Commission recommended in its inquiry into digital platforms that the definition of personal information under the Privacy Act should include technical data such as IP addresses, location data, device identifiers and any other online identifiers. This change would require an organisation to adapt its privacy processes and procedures to ensure this data is being protected in the same way as other personal information that is collects, uses and discloses.
The right to erasure
Under current law, organisations must delete data once it is no longer necessary. An individual right to erasure of data would remove this burden on organisations and create a right for individuals to request erasure of their data. Subject to some exceptions, this right would not:
Giving individuals more control over their personal information, this right would enable them to make a direct request to an organisation for erasure of their personal information. They would no longer need to request a declaration from the Office of the Australian Information Commissioner (OAIC) to have their personal information deleted.
In response to this recommendation, you may like to consider whether your current organisational data retention practices would enable you to swiftly respond to an individual’s request for deletion of their personal information.
The review is currently considering whether a direct right of action should be created for individuals to enforce privacy obligations, or a statutory tort of privacy should be created.
A direct right of action to enforce privacy obligations
Currently, there is no right under the Privacy Act for individuals to seek compensation through the courts for interference with their privacy. Instead, a privacy complaint must be lodged with the OAIC, and once the OAIC has made a determination, a complainant may then apply to the Federal Court or the Federal Circuit Court to enforce that determination. A direct right of action would enable individuals to bring actions or class actions against organisations to seek compensatory damages as well as aggravated and exemplary damages for breach of privacy.
The Issues Paper states that this direct right of action would be confined to serious rather than trivial breaches of the Privacy Act and a requirement would be imposed on complainants to take genuine steps to resolve their matter (by, for example, attending conciliation) before filing a complaint in court.
Statutory tort of privacy
Instead of a direct cause of action, the Government is also considering a tort for invasion of privacy, which would respond to breaches of privacy. However, the Issues Paper does note that the need for a tort of privacy may be negated by recent changes to criminal law that address serious invasions of privacy, such as image-based abuse. The Issues Paper seems to favour a direct right of action.
We expect further announcements by the Government next year, with a second issues paper due for release in early 2021. In the interim, if you believe your organisation may be affected by these changes, you should consider whether:
Furthermore, given the prevalence of online attacks and data breaches brought about by the pandemic, it is more important than ever that organisations comply with Privacy Act requirements. You are therefore encouraged to ensure:
If you would like further information about the proposed changes to the Privacy Act, or assistance with ensuring your organisation has up to-to-date and compliant privacy practices and procedures, please do not hesitate to contact us.
On 27 November 2020, the Federal Government announced plans to introduce sanctions for charities that fail to join the National Redress Scheme (Scheme) for victims of institutional child sexual abuse.
These plans involve introducing a new Australian Charities and Not-for profits Commission (ACNC) Governance Standard (proposed standard). The proposed standard is intended to promote the desired result of full participation in the Scheme.
The Scheme’s objectives include holding institutions accountable for institutional child sexual abuse. A key component of this involves participating institutions providing redress to individuals who experienced child sexual abuse in connection with those institutions. In order to meet this objective, institutions have been encouraged to join the Scheme following its commencement on 1 July 2018.
However, some institutions have still not joined or signified their intent to join the Scheme. By announcing plans to introduce sanctions for charities that fail to join, the Federal Government is taking a firm stance towards charities which have thus far avoided accountability under the Scheme.
The Federal Government’s plans can be summarised as follows.
Under the new sanctions, registered charities which fail to fulfil their obligation to join, or take reasonable steps to join, the Scheme will be subject to the ACNC’s suite of existing compliance powers, including revocation of charity registration.
In addition to ACNC compliance action, registered charities which fail to join or signify their intent to join the Scheme already risk having their name published on the Scheme website in accordance with Scheme legislation. As well as providing transparency for individuals who have applied or are considering applying to the Scheme, this places public pressure on charities to join.
Although there are currently over 58,000 charities, very few charities are likely to be affected by the proposed standard. The ACNC Commissioner noted that only ‘a very small number’ of Australian charities are likely to be affected by the proposed changes’ .
This narrow application (and the prescriptive nature of the standard) makes the proposed standard an unusual addition to the current Governance Standards (which generally have broad application and are principle-based rather than prescriptive). This could be ameliorated by reframing the proposed standard as a principle applicable to all charities while still achieving the Federal Government’s goal of encouraging charities to join the Scheme.
Specifically, the proposed standard could be reframed to require charities to ‘protect vulnerable persons’ (with an explanatory statement confirming that failure to take reasonable steps to join the Scheme was a breach of the standard). This would:
Treasury is seeking submissions on the draft legislation introducing the proposed Governance Standard until 8 January 2021.
Charities that have been named in the Royal Commission, in an application to the Scheme or in information provided to the Scheme should seek urgent advice on the process to join the Scheme.
Otherwise, charities should always ensure that they are aware of and complying with the Governance Standards, particularly in relation to managing historical claims and the protection of vulnerable individuals. In particular, charities are encouraged to:
For more information or guidance regarding the new sanctions for charities or any of the above, please do not hesitate to contact us.
Further to Moores’ recent article (here) detailing extensions to the JobKeeper Scheme (among other Fair Work Act reforms), the ATO has relaxed a series of deadlines that are relevant to an employer’s eligibility to receive JobKeeper payments in 2021.
As a reminder, the second JobKeeper payment extension period will commence from Monday 4 January 2021, covering JobKeeper fortnights up to Sunday 28 March 2021. For this period:
From 4 January 2021 until 28 March 2021, the decline in turnover test will be satisfied if current GST turnover for the quarter ending 31 December 2020 has declined by the specified shortfall percentage (15%, 30% or 50%, depending on the nature and size of the organisation) in comparison to GST turnover for the quarter ending 31 December 2019.
If you are otherwise new to the JobKeeper scheme, your business can still enrol to participate in the remaining fortnights.
In light of the busy Christmas/New Year period (and catering for increased leave entitlements accessed during this period), the ATO has announced it will give businesses more time to meet their JobKeeper obligations.
More information about the key dates for the JobKeeper scheme (and extensions) can be found here.
Moores is continuing to support many employers navigating the complex requirements of the JobKeeper Scheme and JobKeeper eligibility. If you’d like to understand your rights, responsibilities and options in light of the JobKeeper extension, please do not hesitate to contact us.
Recent high profile cases tell a cautionary tale to employers and employees about public comment and expressing personal views in the course of employment.
Moores’ CEO and Practice Leader, Tessa van Duyn, discusses the increasing use and prevalence of social media, and how employers are taking steps to preserve and protect their reputation through control and monitoring of employees’ private activities online.
Read Tessa’s article published in the Law Institute Journal here or click on the following link for the full publication (p. 44).
For more information or guidance on what is reasonable and lawful monitoring in relation to employee activities online, please do not hesitate to contact us.
The Australian Taxation Office has recently issued Practice Statement Law Administration 2020/3 (PSLA 2020/3) which provides for the administration of penalties imposed under s166(1) of the Superannuation Industry (Supervision) Act 1993 (Cth) (“SISA”) for contraventions involving SMSFs.
PSLAs are internal documents which provide direction to ATO staff on approaches to take when performing duties on the laws they administer. They are not law or public rulings and cannot be relied upon to provide interpretative advice on particular legislation, but do provide helpful insight as to the approach case officers will take.
Section 166(1) sets out a list of the SISA provisions where liability for an administrative penalty applies if that provision is breached. These provisions include many well-known SMSF compliance sections such as the in-house asset rule, the prohibition on borrowings and providing a loan or financial assistance to a member or relative.
The purpose of the section is to encourage voluntary compliance by ensuring that there are consequences where trustees or directors of trustee companies have behaved poorly. Section 166 also aims to shift trustee behaviours for better compliance, particularly where an educational approach taken by the ATO has not been effective.
Penalty amounts for breaches of SISA provisions, measured in penalty units, are also specified in s166. The penalty applies to the trustee of the SMSF. If the trustees are individuals, separate penalties are imposed on each trustee for the same offence. If, however, the trustee is a company, a single penalty is applied which is shared between the directors. Importantly, a penalty must be paid from personal funds, not from the SMSF assets.
The purpose of PSLA 2020/3 is to provide guidance to ATO staff on a number of matters arising from a contravention of a provision listed in s166 of SISA, including penalty remission considerations. It includes a number of indicative examples of compliance treatment and the approach that can be taken by the ATO when considering a remission of penalties.
The ATO has an unfettered discretion to remit all, part of or none of a penalty imposed. According to the practice statement “remission provides the administrative flexibility to ensure that the penalty imposed is appropriate for the observed behaviour”.
The ATO is directed to consider the individual circumstances of the case when making a remission decision and in particular, for each case:
The practice statement also outlines a number of other factors to be considered, including:
Whilst good prior compliance or even attempts to rectify the breach may support a penalty being remitted, this may be outweighed by other factors that would warrant otherwise. It is also important that trustees or directors are aware of their role and responsibilities in acting in this role. The practice statement specifically notes the relevance of the trustee or directors being required to declare that they understand their duties and obligations at the time of setting up the SMSF when considering penalty remission. The trustee declaration form is required to be kept for the life of the SMSF and for a period after wind-up of the SMSF, and made available to the ATO if requested.
A trustee or director who is dissatisfied with a remission decision has rights to appeal in certain circumstances, which may include applying to the Administrative Appeals Tribunal or Federal Court of Australia.
Whilst there should never be an intention to establish and operate a SMSF with a view to contravening any of the administrative penalty provisions, PSLA 2020/3 is now a valuable published tool in understanding the practical approach taken by the ATO around the issue of penalty remission.
Steps or actions that trustees or directors could take which could result in penalties being remitted, all or in part are:
An understanding of the compliance requirements is paramount in operating a SMSF. There are onerous responsibilities imposed on trustees or directors and contraventions of any provision outlined in s166(1) of SISA can result in one or more administrative penalties applying. PSLA 2020/3 now gives an understanding of the approach by the ATO to administering penalties and the factors that will be considered in determining remission of penalties. For more information or guidance regarding any of the above, please do not hesitate to contact us.
The National Employment Standards (NES) has recently been updated to improve unpaid parental leave for parents, including for parents of stillborn babies, infant deaths and premature births.
The key changes are two-fold:
The entitlements are available to full time, part time and casual employees.
For more information on what this might mean for your organisation or how to apply it practically, please do not hesitate to contact us.
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The manager, employed full-time at a Sanity retail business in Hobart, gave evidence to Tasmania’s Anti-Discrimination Tribunal that a delivery driver engaged by Toll Transport had, over a period of four years between 2013 and 2017, engaged in “sleazy, intimidating and favouring behaviour towards her” by:
The Tribunal considered that the allegations were supported by compelling evidence and was “comfortably satisfied” that sexual harassment had occurred, contrary to section 17(2) of the Anti-Discrimination Act 1998 (Tas):
The principal aggravating factor justifying the quantum of damages was a defamation letter the Toll driver had instructed his lawyers to send the manager that demanded she:
The Tribunal described this act as ‘disgraceful’, contributing significantly to the deterioration of the manager’s mental health (but falling short of a diagnosed mental health disorder).
The key lessons that can be distilled from this case are as follows:
For more information or guidance regarding any of the above, please do not hesitate to contact us.
Lucy Orchard v Frayne Higgins [2020] TASADT 11 (1 September 2020)
In 2017, the Fair Work Commission (FWC) was alerted to a number of Awards that were ambiguous about when casual employees are entitled to overtime pay and what rate applies. In October 2020, a Full Bench of the FWC made an important decision regarding overtime entitlements, amending a list of 97 Awards after consulting both employer and union representatives.
Click here for a link to the final determination to see whether the Modern Award covering to your organisation is listed, which includes the Aged Care Award 2010, the Clerks – Private Sector Award 2020, the Children’s Services Award 2020, the Educational Services (Schools) General Staff Award 2020, Educational Services (Teachers) Award 2020 and the Nurses Award 2010.
You might have assumed that the Full Bench would declare that one consistent method of calculating overtime pay for casual employees would apply, but this is not the case. The Full Bench decision confirmed that different Awards require different approaches, so you will always need to check your Award to confirm the correct approach.
The key issue in this case was whether the overtime rate of pay for casual employees under 97 Awards is calculated on a cumulative or on a compounding basis. This table illustrates the difference between the cumulative and compound approach:
Surprisingly, there is no single and consistent approach that is applied across the Modern Award system. The Full Bench took into account existing practices in the industry, the wording of the Award and the views of employer and employee representatives. This means that some Awards will continue to adopt a cumulative approach and some will apply a compounding approach. For example:
Changes to 96 of the 97 Awards considered will come into effect on 20 November 2020. Amendments to the Aged Care Award 2020 will come into effect on 1 March 2021 because the pandemic has affected the ability of employers to make the required adjustments to address the Award variation.
Given that the approach can vary between Awards, employers should pay careful attention to the correct approach for all relevant Modern Awards that apply to their workers. If your organisation is covered by more than one Modern Award, not knowing the differences can result in non-compliance, triggering a liability to rectify underpayments and potentially statutory penalties.
The types of issues our clients commonly encounter include:
There are many strategies for dealing with these types of issues, for example, the solution might be to obtain and rely on legal advice, or to sidestep the issue by adopting a new workplace practice, or to bargain for a new enterprise agreement so that employees’ terms of employment are aligned to your business’ practices (rather than needing to accommodate the arrangements in the Award). There may be others.
For more information or guidance, please do not hesitate to contact us.