Employment Relations Podcast #41 – Understanding the Employment Law Considerations in Defence Export Controls

Authors: Emily Haar, Erin McCarthy, Travis Shueard

In this episode, we delve into the recent amendments to the Defence Trade Controls Act 2012 (Cth) and explore the implications for employment law and anti-discrimination issues. Emily Haar is joined by Erin McCarthy and Travis Shueard to discuss how these legislative changes impact businesses in the defence industry – which is defined more widely than you may initially think!

The legislative grace period before penalties apply ends on 1 March 2025, such that now is the time for businesses to assess whether these changes will apply to them, and if so, what impact that will have on their workforce planning, both for current and future employees.

For more insights on these changes and the equivalent US legislation see:

• https://piperalderman.com.au/insight/aukus-itar-export-control-reform-and-the-australian-defence-industry/
• https://piperalderman.com.au/insight/itar-101-fundamentals-and-practice/

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Employment Relations Podcast #40 – Understanding the Australian Right to Disconnect

Authors: Emily Haar, Lucie Lawrence-Wall

The “right to disconnect” is commencing for most national systems employers on 26 August 2024 (small businesses have a further 12 months to get ready). Does your organisation understand what this “right” actually is, and how it could impact your operations?

In this episode of Piper Alderman’s Employment Law for the Time Poor Podcast, Partner Emily Haar and Senior Associate Lucie Lawrence-Wall discuss the international position and the “availability creep” concerns the right to disconnect is designed to address. They work through what the new provisions involve, including consequential changes to Modern Awards, as well as discussing some of the practical implications the new “right” may (or may not) for your workplace.

The right to disconnect is not the only “Closing Loopholes” change that commences on 26 August 2024. For more insights see our previous episodes and insights here: https://piperalderman.com.au/insight/employment-relations-podcast-37-closing-loopholes-no-2-considering-complexities/ and https://piperalderman.com.au/insight/closing-the-rest-of-the-loopholes-final-tranche-of-fair-work-act-amendments-passes-but-with-some-significant-changes/

One of the few constants in life and business is change. Come 1 January 2025, a significant shift will take place for national system employers when criminal wage theft provisions come into effect because of changes in the Closing Loopholes Reforms. But what does “wage theft” mean, and in what circumstances will criminal prosecution occur?

In this episode of Piper Alderman’s Employment Law for the Time Poor Podcast, Partners Emily Haar, Principal Chris Hartigan, and Senior Associate Jack Bourke discuss:

• The differences between civil underpayments and criminal wage theft;
• How the new regulatory model closely resembles the approach of the model work health and safety legislative provisions, requiring a more proactive response from organisations;
• When an underpayment is “intentional”;
• New ways to engage with regulators;
• Significant increases to civil penalties, and expansion of serious civil contraventions to include “reckless” conduct; and
• Wage compliance as a governance issue.

For even more practical insights, on 20 February 2024, our Adelaide team presented on “wage theft” and civil underpayments. Register to view a recording of 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/

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/