Australia: Workplace Relations: Ten predictions for employers in 2017

Last Updated: 14 December 2016
Article by Michelle Dawson

With the start of 2017 rapidly approaching, here are our ten predictions that employers need to keep in mind going forward.

The start of 2017 is rapidly approaching and soon the holiday season will start to fade into a distant memory. With this in mind, here are a few points to get you thinking, and to help you anticipate the year ahead in the workplace relations space: our ten predictions for employers in 2017.

  1. Stronger Fair Work Ombudsman (FWO) powers with legislative force

It is anticipated that the Government will introduce new legislation early this year to give the FWO new examination powers and to specifically prohibit employers from providing false and misleading information.

  1. Increased scope of accessorial liability provisions

With the FWO having secured penalties against frozen yoghurt chain Yogurberry for its involvement in the exploitative practices of one of its franchisees in November 2016, and with the Government having indicated that it is likely to introduce new offence provisions that capture franchisors and parent companies who fail to deal with worker exploitation, we predict a further increase in the number of accessorial liability prosecutions in 2017. We may also, following a Woolworths trolley collection services report which resulted in a stern warning from the FWO, see an increase in the reach of the provisions and/or decisions, to supply chain heads where there has been a knowing failure to take relevant responsibility for a supply chain.

  1. Increased maximum penalty for offending Fair Work Act civil remedy provisions

With indications being that employers can expect a ten-fold increase to the current maximum penalties (presently $54,000 for a corporation and $10,800 for an individual), this is likely to have significant impact for workplace prosecutions.

  1. Right of entry changes

It is clear that the Government intends to introduce legislation to limit Union Right of Entry. Currently, legislation is intended to be introduced to:

  • Place limits on visits;
  • Remove default access to lunchrooms on entry;
  • Provide recourse through the FWC to address excessive Union visits; and
  • Repeal provisions which require employers to provide accommodation and transport to aide Union visits to remote work sites.

We expect to see some such changes introduced in 2017.

  1. Registered Organisations Commission

With the passage of the Fair Work (Registered Organisations) Amendment Bill, we can expect 2017 to bring the establishment and commencement of operation of the Registered Organisations Commission as well as the implementation of stronger protections for whistleblowers.

  1. Reasonable notice

Employees have long been able to bring a claim for reasonable notice when their employment was terminated and the employment contract silent on notice (and an Award or enterprise agreement providing for notice did not apply). There has been a varied view, since the introduction of the Fair Work Act in 2009 though, as to whether s117 of the Act (which provides a minimum period of notice rather than a definitive notice period) affected that right. A decision of the Federal Circuit Court recently determined that section 117 does not displace a right to reasonable notice when the contract of employment is silent on the question of notice. Interestingly though, a few months prior to that decision, the South Australian District Court made a contrary determination, finding that it was not necessary for a term requiring reasonable notice to be implied because a term establishing the employee's entitlement to notice was contained in section 117. Whilst the writer prefers the view that section 117 does not displace a right to reasonable notice, given the disparity in these decisions and the uncertainty which it creates, the writer considers that it is likely that the disparity will be clarified by an appellate or higher court in 2017.

  1. Long service leave review (Victoria)

Whilst it is, in the writer's view, unlikely that new long service leave legislation will be prepared and passed this year, we predict that employers can expect that the Victorian State Government's review of the current regime will be finalised by the end of 2017. Currently earmarked for possible revision are matters including the ability to cash-out long service leave, the way in which continuity of service on transfer of business is considered, earlier employee access to the entitlement, the rate at which the entitlement is paid (i.e. whether it ought to include penalty rates for regular shift and weekend work) and increased inspectorate powers. Long service leave portability in some sectors is also presently being considered by the Victorian Parliament separately.

  1. New Occupational Health and Safety (OHS) Regulations (Victoria)

With the OHS Regulations 2007, and the Equipment (Public Safety) Regulations 2007 due to expire on June 19, 2017, we expect that new OHS Regulations (the proposed Regulations already undergoing consultation and review), will be released in the earlier part of 2017. The proposed new OHS Regulations are available here.

  1. Revised parental leave legislation

With the Government having introduced revised legislation to prevent parents "double-dipping" into Government and employer-funded paid parental leave schemes in late October of last year, we consider it likely that the Fairer Paid Parental Leave Bill 2016 (or some modification of it) will introduce relevant provisions in 2017.

  1. Domestic violence intervention

The Victorian Premier, Daniel Andrews, has sought to introduce a number of changes around domestic violence and how it is dealt with in the workplace. Whilst the changes have/will have a more significant affect across the board on the public sector, a significant move which the Victorian State Government has said that it will make is to actively encourage the Commonwealth Government to include an entitlement to paid family violence leave in the National Employment Standards. This is something which, if the "encouragement" of the Commonwealth Government succeeds, will impact upon all employers, nationwide. We consider this to be a "watch this space" item for 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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