2018 was a busy time period for proposed reform to the employment law regime in Australia, as multiple bills are currently being discussed at both federal and state parliaments.

This article will summarise the progress made in the reform process over the past year in Australia.

Whistleblowing Reform

In December 2018, the Senate passed the Treasury Laws Amendment (Enhancing Whistleblowers Protections) Bill 2018 after multiple rounds of amendments to the version of the bill introduced in December 2017.

Key reforms contemplated by the original bill in December 2017 included:

  • Expanding the categories of people who can receive whistleblower protections;
  • Expanding the types of disclosures that can be protected (including anonymous disclosures, and disclosures to the media in limited circumstances);
  • Expanding the protections and remedies for victimized whistleblowers;

Mandating that all large companies have in place internal whistleblower policies which meet certain requirements.

The Bill met with criticism for not doing enough to implement the 2017 recommendations of the Parliamentary Joint Committee. Other concerns raised included unintended impacts on corporations seeking to implement the reforms. The key amendments made to the Bill in the Senate, in part response to those criticisms, were:

  • Excluding direct managers and supervisors from being eligible recipients of disclosures: the definition of ‘eligible recipient’ for disclosures has been limited to company officers and senior managers. At least theoretically, this should limit the number of people that companies need to train on how to handle whistleblowing disclosures.
  • Carving out workplace grievances: disclosures relating to a ‘personal work-related grievance’ will not be protected under the new regime, unless the grievance relates to victimization following an initial legitimate protected disclosure. Practically speaking, this should keep usual workplace related issues separate from the whistleblower regime.
  • Clarifying when public disclosures will be protected: a concept of ‘public interest disclosure’ has been added to the Bill to sit alongside the emergency disclosure provisions (which themselves have been amended). In summary:
    • A whistleblower, after disclosing to a Commonwealth regulator and waiting 90 days, can disclose their information to a member of parliament or a journalist if they have reason to believe that no action has been taken in relation to a matter of ‘public interest’.
    • In relation to emergency disclosures (matters of danger to the health and safety of people or the environment), the requirement to wait a reasonable time has been removed.
    • This should mean that disclosures relating to the financial system will now sit within the 90-day public interest category, rather than the emergency disclosure category.
  • Duties to support whistleblowers: if a company has a duty to prevent a person (such as an officer or a manager) from causing detriment to a whistleblower and detriment is caused by that person, a court may order the company to pay compensation to the whistleblower. This might give further comfort to whistleblowers who are the subject of reprisals from company officers and managers.
  • No due diligence defense: employers will not be able to rely on having exercised due diligence and taken reasonable precautions to avoid their employees causing detriment to whistleblowers, as a defense to Court action taken by victimized whistleblowers. However, if a company has taken those steps, that will be relevant to the exercise of the Court’s discretion in awarding relief to the whistleblower.
  • Increased penalties: the government also proposes to significantly increase the penalties payable for breaching whistleblower provisions. These amendments are set out in the Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Bill 2018; for companies, the maximum penalty is proposed at the greater of AUD 10.5 million, 3 times the value of the benefit gained from the conduct, or 10 percent of annual turnover.
  • Delayed commencement: there will be a delay after passage of the Bill before the reforms come into effect, and a further 6 month period after that for companies to ensure they have compliant whistleblower policies.

Trend on Labour Hire Regulation

Multiple states across Australia have had significant developments in respect of their respective labour hire licensing regime. As the development in this area of law is constantly evolving, with more states taking greater initiative in either regulating or deregulating labour hire, we strongly recommend closer monitoring on the latest developments.

  1. Victoria: Victoria has introduced new laws to regulate labour hire. From 2019, providers of labor hire services in Victoria will be required to hold a licence. Businesses that engage labor hire will be required to use only licensed providers. In order to obtain a licence, labor hire providers will be required to demonstrate compliance with workplace laws, labor hire laws, and minimum accommodation standards and to pass a “fit and proper person test”.  Non-compliance can lead to civil and criminal penalties.
  2. South Australia: The South Australian Government has announced its intention to repeal its labour hire licensing regime. It is expected that the government will introduce legislation before the end of the year to repeal the Labour Hire Licensing Act 2017. No further applications for licences from labour hire providers are being accepted and past application fees are eligible to be refunded.  It remains to be seen whether any alternative arrangements are recommended by a taskforce which has been established to consider whether existing laws are adequate to protect labour hire workers from exploitation.
  3. Queensland: The Queensland Labour Hire Licensing Act 2017 commenced on 16 April 2018, with a 60-day transitional period post-commencement. Labour hire providers would have until 15 June 2018 to apply for a licence to continue operating as a labour hire provider in Queensland.
  4. Australian Capital Territory: The ACT Government has announced in August 2018 its intention to introduce a labour hire licensing regime that will apply to companies who engage work within ACT. The terms of the proposed act has yet to be announced, but is expected to be similar to that of Queensland and Victoria.
  5. Federal Government: Bill Shorten, the Leader of the Opposition, has expressed the Labor Party’s intention to legislate on labour hire if Labor wins the next federal election in May 2019.

Posted by Helen Colquhoun

Helen Colquhoun is Partner and Head of Employment, Hong Kong, at DLA Piper. She is triple qualified in New York, England and Wales, and Hong Kong. She advises employers across a range of industries on both contentious and non-contentious employment issues (particularly for international employers requiring Hong Kong, US and UK advice) such as risk management, restructuring, managing employee hiring and terminations, design of incentive schemes, and drafting contracts and handbooks. As a triple qualified employment lawyer with over 12 years' experience, Helen is well-placed to provide a single source of advice for clients who require advice in more than one jurisdiction.

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