Employment Law for the Time Poor Piper Alderman

February 2024 has been a big month for legislative change, particularly in the contentious arena of industrial relations.  Seemingly out of nowhere, the Government announced it had done a deal on the remaining areas of proposed reform that did not make it into the Closing Loopholes Act 2023.  Adding to the surprise, the Closing Loopholes No. 2 Bill contained significant and substantial amendments to what had previously been proposed, including the much discussed “right to disconnect” provisions. 
In this episode of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar, Partner, as they discuss five key areas of reform:
Casual employment, including definitions and “conversion” provisions; The “right to disconnect”; The definition of employment for the purposes of the Fair Work Act 2009 (Cth); Increases to civil penalties, particularly for civil underpayments; and The impact the new intractable bargaining determination provisions may have on bargaining strategy.  Further written insights relating to the full complement of Closing Loopholes No. 2 reforms will be published in coming days, available at https://piperalderman.com.au/insight/.  Likewise, we will be hosting a webinar on 5 March 2024 to discuss the reforms.  Register via our website at: https://piperalderman.com.au/eventcategory/national-employment-relations-seminar-series/. 
For more analysis on the earlier iterations of “Closing Loopholes” see: 
https://piperalderman.com.au/insight/the-closing-loopholes-bill-brings-more-challenges-for-employers/ https://piperalderman.com.au/insight/closing-some-loopholes-now-and-others-later-an-update-on-the-latest-fair-work-amendments/  For even more practical insights, on 20 February 2024, our Adelaide team will present on “wage theft” and civil underpayments.  Register for the webinar here: https://piperalderman.com.au/event/webinar-beat-the-clock-2024-substantive-law-underpayment-or-wage-theft-understanding-compliance-with-the-fair-work-act-criminalisation-and-the-proposed-safe-harbour-provision/

Following the 2018 Boland Review into the model Work Health and Safety provisions, workplace psychosocial safety has squarely been on the policy agenda.  Combined with recent changes as a result of the Respect@Work Report, the clear policy position, and expectation of society, is one of employers taking responsibility and being accountable for having workplaces that are both physically and psychologically safe. 
In South Australia, its version of amendments to the Work Health and Safety regulations to deal with psychosocial safety commence on 25 December 2023, following similar legislative reform around Australia in each of the jurisdictions with the model Work Health and Safety laws.  Victoria is currently considering similar, though potentially more far-reaching, provisions.  
In this episode of the Podcast, Emily Haar and Emily Slaytor discuss what it means to have a workplace that is psychosocially safe, including what psychosocial hazards are, how to spot them and manage them, and what organisations need to do to both be compliant, but to also prove compliance in the event that a regulator takes interest.  Directors and senior executives in particular need to think about how they will ensure appropriate “due diligence” to comply with their duties as officers under work health and safety law. 
Some resources you may be interested in to explore this further include:
2018 Boland Review: https://www.safeworkaustralia.gov.au/law-and-regulation/model-whs-laws/review-model-whs-laws Respect@Work: https://www.respectatwork.gov.au/ The Safe Work Australia Model Code of Practice:  https://www.safeworkaustralia.gov.au/doc/model-code-practice-managing-psychosocial-hazards-work The US Surgeon-General’s Framework for Workplace Mental Health and Wellbeing: https://www.hhs.gov/sites/default/files/workplace-mental-health-well-being.pdf Curtin University and the University of Sydney, ‘How work design shapes mental health in the Healthcare and Social Assistance industry,’ July 2023, https://8bd0f060-89c2-4f20-bced-abb2e8c5789f.usrfiles.com/ugd/4faa3e_a32fcac432d14fbaac489ab570648843.pdf

The recent High Court decision in Qantas v TWU [2023] HCA 27 focussed on the question of how the general protections in the Fair Work Act 2009 (Cth) work in circumstances where employees did not presently have particular workplace rights (in that case the right to take industrial action), but would have those rights in the future if not for the adverse action being taken. 
While that analysis has rightly been the subject of a lot of interest, the outcome in that case turned on the other key concept in general protections claims – the “reverse onus” where employers need to prove that an unlawful reason did not form a substantive part of their reason for taking the action.  In Qantas, it was apparent that there were clear and appropriate commercial reasons for taking the action that occurred.  The question for the Court at first instance was whether Qantas was able to discharge its burden.
In this episode of the Podcast, Emily Haar and Erin McCarthy discuss how legally-defensible decisions are best made, whether by a Board, the Executive, or others down the “decision-making chain”, drawing on a number of recent (and not so recent) cases in the general protections space, including Barclay, BHP Coal, Kodak, Claremont Coal, Australian Red Cross, Wong v NAB, and Serpanos.  Being intentional about the process, as well as what is considered, and what is documented, in making a decision will best protect employers in the case of a legal claim. 

In comments to the National Press Club on 31 August 2023, Industrial Relations Minister Tony Burke said that the Closing Loopholes Bill will address four key “pillars”: wage theft, casual conversion, labour hire, and “employee-like workers”, and that the Bill would not “reach into every workplace”.  While the Bill certainly deals with those four matters, there is so much more to unpack. 
In this special long-form episode of Employment Law for the Time Poor, join Professor Andrew Stewart and Emily Haar as they discuss the considerable proposed reforms presented by this Bill.  If you think your organisation will not be directly impacted, think again. 
The Bill includes quite complex reforms to the definition of employment, creates new jurisdictions for the Fair Work Commission to deal with non-employee disputes, creates new rights for workplace delegates, and significantly increases the civil penalties for underpayments (while also creating a criminal offence of “wage theft”).  
For additional detail on the Bill, view our Insight here: https://piperalderman.com.au/insight/the-closing-loopholes-bill-brings-more-challenges-for-employers/

Industrial manslaughter may soon be an offence in almost all Australian jurisdictions. Recent amendments in certain jurisdictions have also introduced the recommendation of the 2019 Boland Review to prohibit insurance and indemnities for WHS penalties.  In this episode of Employment Law for the Time Poor, join Emily Haar, Partner, and Joseph Hyde, Associate, for a review of the current status of these provisions, with a particular focus on the South Australian proposed industrial manslaughter legislation. 
With Labor governments having been recently elected in South Australia, New South Wales, as well as federally, the issue of industrial manslaughter is back on the agenda.
South Australia, New South Wales, and Tasmania are the only remaining States that have not yet expressly legislated for this offence. However, public consultation on South Australia’s draft Work Health and Safety (Industrial Manslaughter) Amendment Bill has finished, with the Government now considering the feedback that was provided. The recently elected NSW Labor Government had attempted to introduce industrial manslaughter legislation in 2021. While there is no current Bill before parliament, it is likely to be on the Parliamentary agenda.
At the Commonwealth level, the national model WHS laws are planned to be amended to include the offence of industrial manslaughter, following Australia's WHS ministers agreeing to the move in late February 2023.

The offence generally captures negligent or reckless conduct of a person conducting a business or undertaking (PCBU) or its officers that breaches health and safety duties and causes the death of a person to whom a duty was owed. However, the details of the offence vary slightly in each jurisdiction.
Jurisdiction
Law in force
Law being considered
Maximum penalties
Elements of offence
Prohibition against insurance
SA
 
✓
Body corporate: $15 million.
Individuals: 20 years
Would apply to officers or individuals acting as PCBUs who engage in reckless or grossly negligent conduct causing the death of an individual to whom a health and safety duty is owed.
Not presently included in Bill
Vic
✓
 
Body corporate: nearly $18.5 million. Individuals: 25 years imprisonment.
Negligent conduct by persons, including an employer and its officers, which breaches a duty and which  causes the death of an employee or member of the public
✓
Qld
✓
 
Body corporate: $14.375 million.
Individuals: 20 years imprisonment.
A PCBU or a senior officer’s conduct negligently causes the death of a worker. Includes where a worker is injured carrying out work and later dies.
X
WA
✓
 
Body corporate: $10 million.
Individuals: 20 years imprisonment and/or $5 million fine.
A PCBU engages in conduct that constitutes a failure to comply with their health and safety duty, knowing it is likely to cause the death or serious harm to another person, and causes the death of an individual.
Officers may also be charged but additional elements of the offences must be proven.
✓
NT
✓
 
Body corporate: just over $10.5 million.
Individuals: life imprisonment.
A PCBU or officer intentionally engages in conduct that breaches their health and safety duty and causes the death of an individual to whom that duty was owed, and is reckless or negligent about the conduct and causing the death of that individual.
X
ACT
✓
 
Body corporate: $16.5 million.
Individuals: 20 years imprisonment.
A PCBU or officer engages in conduct that breaches their health and safety duty and causes the death of an individual to whom that duty was owed, and is reckless or negligent about the conduct.
X
NSW
 
✓ (No current Bill before Parliament)
 
Note to Division 5 states:
“In certain circumstances, the death of a person at work may also constitute man

International Women’s Day is observed internationally in March.  In this episode of Employment Law for the Time Poor, join Professor Andrew Stewart, Consultant, and Emily Haar, Partner as they discuss recent amendments to federal legislation designed to address pay equity for women, including the Secure Jobs, Better Pay Act and the recently passed Closing the Gender Pay Gap Act. They also talk about the next batch of changes to the Fair Work Act in the new Protecting Worker Entitlements Bill.  Organisations will need to be across these many changes (with more still to come) to ensure not just legal compliance, but workplaces where all staff feel best supported to succeed