Australia: What you need to know about the Modern Slavery Act (MSA)

Last Updated: 6 November 2019
Article by Scott Alden and Victoria Gordon
Most Read Contributor in Australia, October 2019

For the majority of Australian entities required to comply with the Modern Slavery Act 2018 (Cth) (MSA) the time to start implementing changes in their business to comply with the requirements began earlier this year (depending on the financial year adopted by that entity).

Accordingly, entities should be carrying out a number of MSA activities in parallel including:

  • developing a MSA action plan
  • assessing whether it is a 'reporting entity' and, in respect of an entity comprising a group, which entities need to report and how that report is done and authorised
  • undertaking due diligence and a risk analysis in respect of its supply chain
  • a review of corporate policies
  • changes to supplier on-boarding practices, including development of vendor questionnaires
  • internal MSA awareness raising and training
  • changes to existing supplier agreements
  • amendments to standard template contracts to take account of the new law.

This article provides practical guidance on what changes should be made to contracts, tender documentation and policies to achieve best practice MSA compliance.

Contract clauses

Reporting entities should be reviewing their existing and ongoing agreements, as well as template contracts to consider ensuring that the following matters are covered:

  • information and disclosure: Obligations on the supplier to provide information to the reporting entity in relation to its labour practices and rights for the reporting entity to request information and conduct audits for the purposes of the MSA
  • warranties and representations: Warranties and representations that any information supplied by a supplier is true and accurate and may be relied upon by the reporting entity for the purposes of the MSA
  • training: An obligation on the supplier to conduct training with its personnel on the MSA
  • termination rights: Specific termination rights that allow the reporting entity to terminate a contract for a breach of the MSA by the supplier (noting that it is not recommended that this termination right be triggered without first engaging in remediation and awareness raising with the relevant supplier)
  • indemnities or liabilities: An indemnity from the supplier for any loss or damage caused to the reporting entity due to a breach of Modern Slavery contract clauses (for example, providing false or misleading information in relation to its labour hire practices)

For any contracts currently on foot, reporting entities may consider issuing a notification to all current suppliers and customers regarding the reporting entity's obligations under the MSA. This notification may include a request to vary the current contract to include Modern Slavery clauses, or a set of stand-alone obligations to which the supplier or customer is requested to commit.

Whilst there may be no contractual obligation for a current supplier or customer to accept a variation of a current contract to include Modern Slavery clauses, a commitment from that supplier or customer to assist in the identification and reduction in modern slavery in its supply chains would no doubt be beneficial to future relationship and contracting opportunities with the reporting entity.

Tender documentation

Changes to tender documentation is another action that a reporting entity can take to assess and address modern slavery risks in its supply chains, and enhance the visibility it has over new supplier's human rights practices and labour hire policies.

One way to do this is to include a Modern Slavery supplier on-boarding questionnaire, either separately or as a tender schedule, which all prospective suppliers should complete as part of the on-boarding process, or tender submission (as appropriate). Alternatively, the on-boarding questionnaire can be issued to new suppliers as a stand-alone document.

The questionnaire should ask for details on:

  • the supplier's company structure, employees and recruitment practices
  • whether it is subject to the MSA or an equivalent State / Territory legislation and has submitted a Modern Slavery Statement for the relevant reporting period under that legislation
  • whether it has programmes or policies currently in place to ensure that human trafficking and slavery do not exist in its operations and supply chains
  • whether it works with third parties to identify the overall risks of slavery and human trafficking in its supply chains
  • whether it conducts independent, unannounced audits of its operations and suppliers
  • whether it requires certification that all materials incorporated into its products or services were sourced, processed and manufactured in compliance with the human trafficking and slavery laws of the country or countries in which they operate
  • whether it provides training to employees, customers or suppliers on slavery and human trafficking in supply chains
  • whether it has had any instances of known or suspected modern slavery in its supply chain, claims or adverse media attention in relation to its human rights practices.

It is important that the reporting entity complies will all of its obligations under the Privacy Act 1988 (Cth) in relation to the collection and use of information gathered as part of this supplier onboarding due diligence process.

Policies

Another important action that a reporting entity can take to assess and address modern slavery risks in its supply chains is to review and amend its suite of polices.

Amending or improving policies is an integral part of an entity's Modern Slavery action plan as this will:

  • demonstrate the entity's commitment to complying with all of its obligations under the MSA
  • set out clear rules, standards and expectations within the entity in relation to human rights and modern slavery
  • provide workers with the requisite knowledge about the MSA, the entity's obligations in relation to the legislation and what is expected of each individual employee, for example a pro-active obligation to notify management of any suspected instances of modern slavery or unsafe working practices
  • provide rules and guidelines for decision-making in routine situations, for example routine procurement or spending decisions, or on-boarding of new suppliers
  • provide a confidential, safe and effective whistleblowing mechanism for staff, suppliers and other members of the public to raise concerns, for example an anonymous hotline
  • provide a consistent and clear framework for how the entity will respond to any known or suspected instances of modern slavery that are identified within the entity's supply chain, including grievance mechanisms, remediation options and communication strategies
  • provide a consistent process for communicating information to current employees and new employees, for example training and induction
  • ensure that the entity is better equipped to respond to queries from its suppliers, staff or the general public in relation to its anti-slavery practices, any breach of the MSA, or any adverse media in relation to its human rights practices more generally

The following is a non-exhaustive list of suggested policies that should be reviewed, amended or adopted if not already in place, to ensure the appropriate policies are in place in relation to the MSA:

  • procurement
  • human rights or anti-slavery
  • supplier or vendor on-boarding
  • recruitment and labour hire
  • induction of new staff
  • anti-discrimination and anti-harassment
  • code of conduct
  • equal employment opportunities and diversity
  • corporate social responsibility
  • team member issues resolution
  • workplace health and safety
  • privacy
  • whistleblowing
  • grievance mechanism or remediation

Once the reporting entity's suite of policy documents are revised in relation to the MSA, they should be made available to the entire workforce, and the entity should ensure that all new and current employees, suppliers and contractor are trained and are familiar with the revised suite of policies and the entity's obligations in relation to the MSA.

Conclusion

For most Australian reporting entities the reporting period in respect of the MSA has commenced.

To ensure those entities can meaningfully report on the actions they have taken to assess and address modern slavery risks in their operations and supply chains, they should be:

  • reviewing existing current contracts, and drafting amendments in relation to the MSA
  • developing an on-boarding questionnaire, incorporating it as part of its standard procurement procedure, and using it as an assessment tool to assess modern slavery risks in suppliers; and
  • reviewing and developing a suite of policies.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions