HR LAW NEWSLETTER – SEPTEMBER 2024

HR LAW NEWSLETTER – SEPTEMBER 2024

Welcome to the September 2024 HR Law Newsletter. 

This month, we are thrilled to announce Victoria Mitchell as our newest Partner.  We also provide updates relating to the latest employment law legislative amendments and regulations and examine the first legal action lodged by the Fair Work Ombudsman against an external professional service provider for alleged involvement in a company’s failure to comply with a Compliance Notice.

HR LAW ANNOUNCEMENTS

Introducing our newest Partner

We are delighted to announce Victoria Mitchell is now a Partner here at HR Law.

Victoria has and will continue to bring extensive experience in all aspects of employment and workplace relations law.  Victoria is experienced in all areas of employment and workplace/industrial relations law and combines her legal skills and knowledge with practical corporate experience when advising clients.  As both an experienced lawyer and human resources specialist, Victoria provides sound legal advice to clients as she understands the complexities, obligations and legal risks of the management of workplace laws.

Victoria will manage the Gold Coast office, situated in the heart of Coolangatta at Suite 203, Level 2, The Strand, 72-80 Marine Parade, Coolangatta, Queensland.  We are excited for the times ahead as we continue to grow and expand our services in meeting the needs of our clients.

If you would like to contact Victoria or schedule a meeting at our Gold Coast Office, please email Victoria at v.mitchell@hrlaw.com.au or call direct on (07) 5619 8153.

October Webinar – Navigating Enterprise Agreements: Genuine Agreement, Bargaining Implications and Legal Updates

Thinking about negotiating an enterprise agreement?  In our upcoming October webinar, we focus on recent changes to the Fair Work Act 2009 (Cth) affecting the enterprise bargaining process, including the Fair Work Commission (“FWC”)’s power to make intractable bargaining declarations and determinations.

This webinar will provide an overview of key changes and developments in the enterprise bargaining process, including discussion around the Principles of Genuine Agreement, and bargaining implications including industrial action and workplace determinations.  We will also discuss the FWC’s first intractable bargaining determination in Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd, and provide some best practice tips

Please join us via Zoom.  The details are as follows:

Date: Wednesday, 30 October 2024

Time: 10:00 AM

Presented by: Jill Hignett, Managing Partner and Prini Avia, Solicitor

You can register for the webinar here.

Missed our September Webinar?

Earlier this month, we hosted a complementary webinar on Closing Loopholes: Keeping Abreast of the Changing HR Landscape.  In this webinar, we discussed significant amendments to the Fair Work Act 2009 (Cth) through the Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and its successor, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024.

If you missed it, we have posted a copy on our website.  You can access the link here.

RECENT LEGISLATIVE UPDATES

Respect at Work and Other Matters Amendment Act 2024

On Tuesday, 10 September 2024, the Queensland Government passed the Respect at Work and Other Matters Amendment Act 2024 (“the Act”).  These legislative amendments will take effect from 1 July 2025.

The Act introduces historic and sweeping workplace reforms which will strengthen protection for Queensland workers experiencing sexual harassment, discrimination, victimisation, vilification and other objectionable conduct.

One of the major reforms includes the introduction of a positive duty on Queensland workplaces to manage and eliminate discrimination.  Premier Steven Miles MP summarised these changes, stating that “these laws now put the onus on an employer to take reasonable steps to eliminate and prevent discrimination and sexual harassment in the workplace.”

The changes include:

  • Employers will now have a positive legal duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and “other objectionable conduct” under the Anti-Discrimination Act 1991 (Qld).

  • A new prohibition of harassment on the basis of sex.

  • Expanded list of protected attributes under the Anti Discrimination Act 1991 (Qld), including expunged conviction, irrelevant medical records, irrelevant criminal records, homelessness, physical appearance and subjection to domestic or family violence.

  • The prohibition on subjecting another person to a work environment that is hostile on the basis of sex.

  • The extension of time limits for making a complaint to the Queensland Human Rights Commission relating to a contravention on the basis of sex that is a work-related matter has been increased from one year to two years.

  • Queensland workplaces are encouraged to commence reviews of their current policies relating to workplace conduct, in particular policies addressing discrimination, sexual harassment and vilification.

To view the Anti Discrimination Act 1991 (Qld), click here.

To view the Explanatory Notes, click here.

To read the Queensland Human Rights Commission’s summary of these changes, click here.

Right to Disconnect Term

On 23 August 2024, a Full Bench of the FWC finalised the right to disconnect modern award term (“Term”), which has now been added to all 155 modern awards.  The right to disconnect started on 26 August 2024 for non-small business employers. It will start on 26 August 2025 for small business employers and their employees.

The FWC intends to review the Term in 12 months’ time.  As part of the review, interested parties will have the opportunity to raise any practical difficulties which they perceive have arisen in the operation of the Term either generally or in particular industries or occupations.

To view an example of the Term, see clause 13A of the Clerks – Private Sector Award 2020 here.

To view the Full Bench’s Decision on 23 August 2024, click here.

Contractor High Income Threshold

The Fair Work Amendment (Contractor High Income Threshold) Regulations 2024 has come into effect, which introduces a high-income threshold of $175,000.00 (“High-Income Threshold”) for contractors, which is consistent with the current employee high-income threshold.

Independent contractors earning below the High-Income Threshold can apply to the FWC for help resolving disputes about unfair terms in any services contracts that were entered into on or after 26 August 2024.  In addition, the FWC will have the power to make orders setting aside or varying any services contracts with unfair terms.

Further, contractors earning over the High-Income Threshold can choose to ‘opt out’ of the “whole of relationship test”, which was introduced on 26 August 2024.  The “whole of relationship test” determines if a worker is a contractor or an employee by considering the real substance, practical reality and true nature of the relationship.  If a worker gives a written opt out notice to the business, then the “start of relationship test” will apply to the relationship from that date, rather than the “whole of relationship test”.

For more information on the opting out process, click here.

To view the Fair Work Amendment (Contractor High Income Threshold) Regulations 2024, click here.

CASE BRIEF: FAIR WORK OMBUDSMAN LODGES LEGAL PROCEEDINGS AGAINST ROAD TRANSPORT COMPANY AND ACCOUNTANT FOR BREACH

On 8 September 2024, the Fair Work Ombudsman commenced legal proceedings against AWT Transport (“Company”) and their accountant, for failure to respond to a Compliance Notice.

This is the first legal action lodged by the Fair Work Ombudsman against an external professional service provider for alleged involvement in a company’s failure to comply with a Compliance Notice.  This matter puts professionals, including accountants, on notice of the legal consequences for their involvement in a company’s breaches of workplace laws.

These proceedings arose from a complaint made by one of the Company’s casual drivers who had sought assistance from the Fair Work Ombudsman for underpayments between February 2019 and August 2021.  The Compliance Notice was issued in November 2022 with allegations of underpayments for cents-per-kilometre rate entitlements under the Road Transport (Long Distance Operations) Awards 2010 and 2020.  The Company failed to comply with the Compliance Notice as they did not determine the back-pay of a casual employee who was underpaid and failed to repay the owing amount.

The Company is facing penalties of up to $33,000.00 for the alleged failure to comply with the Compliance Notice.  In addition, the accountant faces a $6,600.00 penalty, as it is alleged that the accountant was involved in the contravention because the Company had authorised him to respond to the Compliance Notice on behalf of the company but he failed to take the required actions.  The Ombudsman has also sought an order that the Company pay the alleged outstanding amounts (including interest and superannuation) to the employee.

The matter is listed for a Directions Hearing in the Federal Circuit and Family Court in Brisbane on 4 November 2024.

To read more, click here.

CONNECT WITH US ON LINKEDIN

If you are not already connected with us and you would like to keep up to date with topical employment law matters, please follow us on LinkedIn and subscribe to our email updates.

We also post articles regularly on our website.  Please email us at info@hrlaw.com.au and we will make sure we add you to our mailing list.

The content of this newsletter is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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