2020 vision: a legal perspective on what will impact the Australian workplace this year

HR changes

2020 begins with the draft Religious Discrimination Bill 2019 released by the Prime Minister and Attorney General and expected to be introduced into Federal Parliament this year. The Bill would see the introduction of laws addressing discrimination on the basis of religion in employment and areas of public life. If the Bill is passed, all Australian employers will need to understand how it affects their management of religious issues in and outside the workplace, writes Anna Creegan.

A new year and a new decade. A new direction in the Australian workplace?  With legal and social changes, this year promises to be a significant one for HR professionals in Australia. The workplace continues to be an area of focus for lawmakers and regulators and remains a forum for broader social issues to manifest. Herbert Smith Freehills partner Anna Creegan on what to expect in 2020 in the Australian workplace.

  1. Religion

With the Prime Minister and a star Wallabies back publicly sharing their commitment to religious belief, in 2019 conditions were ripe for a reassessment of religion in Australian public life. 2020 begins with the draft Religious Discrimination Bill 2019 released by the Prime Minister and Attorney General and expected to be introduced into Federal Parliament this year.

The Bill would see the introduction of laws addressing discrimination on the basis of religion in employment and areas of public life. Notable exceptions to discrimination on the basis of religion in employment would include employment for domestic duties, religious hospitals, aged care facilities, accommodation providers, and where the individual cannot perform the inherent requirements of the role. The Bill would create a new office of the Freedom of Religion Commissioner, within the Australian Human Rights Commission.

If the Bill is passed, all Australian employers will need to understand how it affects their management of religious issues in and outside the workplace.

  1. Climate

2020 begins with climate dominating the national discourse. But could this become a workplace issue? It seems it already has.

First, there are direct impacts. Employers are presented with new challenges in the form of air quality issues and temporary absences from work by volunteer firefighters and others affected by climate issues.

Then there are less tangible changes. Our firm’s 2019 report, Future of Work, returned data from a survey of 375 executives at large corporations across the US, UK, Europe, Middle East, Africa, Asia, and Australia. It tells of an anticipated rise in workplace activism which is increasingly focused on social and environmental issues, particularly climate change. Larger companies and in particular mining companies predict a rise in activism triggered by environmental issues, the report notes.

As 2019 ended, institutional investors reduced investment in fossil fuel stocks. BlackRock described sustainability as its ‘new standard for investing’. It seems reasonable to expect employee activism to follow, and there are indications that this is already happening. Our report records that Microsoft, Google, Amazon, Facebook and Twitter employees were active in coordinating 2019 climate protests. And in late 2019, CFMMEU National President Tony Maher joined those identifying a ‘lack of progress’ in Australia on climate and energy, contemplating (in a submission to the Select Committee into Jobs for the Future in Regional Areas) falling incomes and prospects for people in coal regions without major government programs.

Expect climate to be an emerging issue in Australian workplaces this year.

  1. Safety

This year will see industrial manslaughter offences take effect in Victoria in July, and possibly in Western Australia.

These new laws would follow the industrial manslaughter offences already in force in Queensland and the ACT.  Further Industrial manslaughter offences are proposed in all other jurisdictions except New South Wales and Tasmania.

The message is clear, as articulated by the Chief Executive of WorkSafe Victoria, Colin Radford. In a February 2020 release, Mr. Radford said “employers are on notice to take their health and safety obligations seriously or risk jail if your negligence causes a worker’s death. If you show a reckless indifference to human life, you will face the full force of these new laws.”

Mental health has received similar attention. New safety laws that are expected to take effect in WA this year define ‘health’ as ‘physical and psychological health’. This gives a clear duty to ensure the psychological health of workers engaged in the business, at least while they are at work. This followed the Western Australian Government’s release of the Code of Practice: Mentally healthy workplaces for fly-in fly-out workers in the resources and construction sectors, which recommended a range of measures to assess and control risks associated with FIFO work.

These changes expand traditional concepts of workplace safety and create significant consequences for employers and their senior personnel if safety laws are breached.

  1. Money, time and job security

Perhaps the biggest issue for Australian employers in 2020 will be ongoing scrutiny of their practices in engaging and paying staff and keeping records of hours worked.

There are a number of issues at play here:

  • Fair Work Ombudsman investigations – targeting non-compliance with awards, enterprise agreements, the Fair Work Act, and sham contracting.
  • the ATO’s Single Touch Payroll system – giving employees easy access to information on income, employer superannuation contributions and tax withholdings.
  • updated modern awards – creating new limits on the use of annualised wages for staff in clerical, horticultural, pharmacy, banking, finance and insurance, mining, local government, and other areas, from 1 March 2020. These changes will:
  • give employees an entitlement to pay in addition to an annualised wage where they work above a set number of hours in a roster cycle or pay period.
  • require employers to give employees information about how the annualised wage has been calculated.
  • require employers to conduct 12 monthly reconciliations of the annualised wage against the employee’s award entitlements (from the start of the annualised wage arrangement); and
  • require employers to keep a record of start and finish times, and any unpaid breaks, for employees subject to an annualised wage.

Whether an employer can simply opt-out of the annualised wages requirements of awards by using a common law annualised salary is the subject of much discussion. Employers should consider this carefully.

  • the Modern Slavery Act – introduced in 2018, which requires Australian entities (or entities carrying on business in Australia) with at least $100 million global consolidated revenue to (from 2020) submit an annual statement on the risks of modern slavery in their operations and supply chains.
  • the rise of class actions – providing a forum for employees (in some cases with the support of unions) to pursue underpayment and other claims on a collective basis. For example, in the CFMMEU backed class action by Renyard against WorkPac, 600 union members are claiming $12m in entitlements, on the basis that they were wrongly classified as casuals.

It is clear from these issues that human resources professionals can expect a busy year. These changes and challenges will be best met by human resources teams focussing on compliance with laws, monitoring further changes to laws, and achieving direct engagement with the workforce as far as possible.

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