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New Laws – Religious Discrimination Legislation on Track to be Introduced in 2020

The Federal Government is on track to introduce religious discrimination legislation in 2020, with a second exposure draft of its Religious Discrimination Bill introduced in parliament in late December 2019.

The Bill adopts the general objects, protections and prohibitions contained in similar Federal anti-discrimination laws such as the Age Discrimination Act, Disability Discrimination Act and Sex Discrimination Act, with some alterations to reflect the distinct nature of ‘religious belief or activity’ as a protected attribute.

Amongst other things, the Bill will (if passed):

  • protect and promote the right of religious freedom in Australian public and private sectors
  • make it generally unlawful to discriminate against a person on the basis of their religious belief or activity, or because they have or do not have a religious belief, or because they do or do not participate in a religious activity
  • introduce a Freedom of Religion Commissioner at the Australian Human Rights Commission
  • contain specific provisions relating to discrimination in the context of employment including ‘carve-outs’ such as the right to discriminate against a person on the grounds of religious belief or activity in employment if they are unable to carry out the inherent requirements of that employment or in order to preserve the ‘religious ethos’ of the employer
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Court Cases – Personal Leave Calculation Decision Off to The High Court

2020 may see a fundamental shift in how personal leave is accrued and paid following a controversial Federal Court decision relating to the calculation of leave for employees with non-standard rostered hours.

In the case of Mondelez v AWMU:

  • relevant employees were covered by an enterprise agreement
  • the enterprise agreement permitted employees to work ordinary hours of 36 per week (by way of 3 x 12 hour shifts per week) and entitled those employees to 96 hours of paid personal leave per year of service
  • when they took paid personal leave though, the employer deducted 12 hours from their accrued balance, meaning they only accrued enough leave over a year of service to cover 8 days absence
  • a claim was made that this contravened the National Employment Standards (found within the Fair Work Act) as it failed to provide such employees with 10 days of paid personal leave per year of service
  • the majority of the full Federal Court agreed, however, Mondelez has since appealed to the High Court
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Whistleblower Policies – Must be in Place by 1 January 2020

From 1 January 2020, all public and large proprietary companies must have in place a whistleblower policy which meets all mandatory statutory requirements.

Amongst other things, these laws:

  • modify existing legislation relating to corporations, the banking industry and insurance companies
  • provide significantly stronger protections to whistleblowers who make disclosures about protected matters and expand the scope of persons who may make protected disclosures
  • impose substantial civil and criminal penalties for breaches of whistleblower protections
  • mandate all public and large proprietary companies have a compliant whistleblower policy in place by 1 January 2020

A large proprietary company is one that has 2 or more of the following characteristics:

  • $50+ million in consolidated revenue
  • $25+ million or more in consolidated gross assets
  • 100 or more employees

Currently fines of up to $12,600 can apply for failing to have a compliant whistleblower policy in place by 1 January 2020, and repeat fines can also apply to every subsequent year this requirement is not met.
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Annualised Salaries – Changes to Burden Employers

The Fair Work Commission has turned its focus to the disparate ‘annualised salary’ provisions found within various modern awards and with the inherent lack of employee wage safeguards being a key driver for change, the Commission has created new rules that govern same.

Presently 21 modern awards will be varied to incorporate a model annualised salary term including:

  • Clerks–Private Sector Award
  • Manufacturing and Associated Industries and Occupations Award
  • Hospitality Industry (General) Award
  • Restaurant Industry Award
  • Mining Industry Award
  • Legal Services Award
  • Banking, Finance and Insurance Award

Amongst other things, the new annualised salary provisions introduce several new and onerous notification, record-keeping and wage reconciliation obligations on employers who pay their award-covered employees annualised salaries including:

  • notifying employees of the annualised salary, which specific award provisions are satisfied by it, and how the annualised salary has been calculated
  • limiting how many hours of overtime or weekend hours are included within it and requiring additional payments to be made if those hours are exceeded
  • Continue reading…

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Modern Awards – New Awards Commencing From 4 February 2020

Since 2014 the Fair Work Commission has been undertaking a ‘four-yearly review’ of all modern awards, during which the Commission has clarified how some modern award clauses operate and made numerous changes.

Now the time has come for the new modern awards to be released in three tranches, the first of which commence in the first full pay period on or after 4 February 2020 and include the following:

  • Banking, Finance and Insurance Award
  • Legal Services Award
  • Market and Social Research Award
  • Real Estate Industry Award
  • Surveying Award

As every modern award will change according to the tranche in which they are allocated, it is a case of ‘watch this space’ as to the date when the second and third tranches will commence.

Action Items:

Identify what awards apply at your workplace, check which tranche they are included in, review them for changes and areas of actual or potential non-compliance, update systems and documents such as payroll and employment agreements accordingly, and educate relevant personnel such as managers about the new rules and minimum legal requirements. If you require any assistance or advice, please contact our Employment & Workplace Law Team.

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End-of-Year Work Functions – ‘The Nightmare before Christmas’

Year end work functions provide employers and employees with the opportunity to reflect on the year that was and are a great way to reward staff for their efforts and enthusiasm.


However, the ‘silly season’ can often be a cause of headaches for employers as employees can be prone to engaging in inappropriate conduct which may necessitate taking disciplinary action and/or give rise to an assortment of legal claims.


Employer’s Duty of Care

Employers need to remember that such functions are work events (even if held away from the workplace) meaning they owe a duty of care to their employees during these events.


What Does the Duty of Care Require?

This duty requires employers to take all reasonable steps to ensure the health and safety of employees during these functions. Reasonable steps may include:

  • limiting employees’ consumption of alcohol if it is available, including by limiting alcohol options to beer and wine and/or implementing a ‘last drinks’ cut-off time
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New Laws – Criminal Records and Discrimination

What has changed?

As and from 1 October 2019, employers will now be able to reject jobseekers if they have a criminal record “relevant to the job” which they have applied for.

Previously, employers were required to show that the jobseeker’s criminal record meant that they could not perform the inherent requirements of the position.

Catalyst for change

The catalyst for change was prompted by a case in 2018 where:

  • Suncorp argued that a jobseeker’s criminal record for child pornography offences tainted his integrity and as such he could not be trusted to work unsupervised from home with sensitive client data


  • the Australian Human Rights Commission, however, held that his child pornography convictions were not offences of dishonesty and that Suncorp had unlawfully discriminated against the jobseeker by withdrawing a job offer upon learning of his child pornography offences

In a media release on 3 October 2019 the Attorney-General for Australia and the Minister for Industrial Relations, the Hon Christian Porter MP, commented that:
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Beware of Personal Guarantees

A director or shareholder of a company is often asked to provide a personal guarantee of a company’s obligations.

Any person who is considering giving a personal guarantee must be aware of the risks and pitfalls of doing so.


An agreement based personal guarantee is usually either:

  • set out in a separate document (eg, a deed of guarantee and indemnity)


  • incorporated into the main document


Whilst in the first category above it will be obvious that a personal guarantee is requested, in the second we have reviewed many contracts where the guarantee clause is ‘buried’ in the fine print of the document.

For example, we have seen clauses in supply contracts which in effect state ‘the person signing this document on behalf of the company is giving a personal guarantee’.

Therefore, a director may sign a contract on behalf of a company and unknowingly be giving a personal guarantee at the same time!


The obvious risk in giving a personal guarantee is that the assets of the individual (which may include the family home) could be at risk if the company defaults on its obligations under the relevant contract.
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