In a year that has been full of changes, these cases and pieces of legislation stood out as having the most significant impact on our workplaces.
HR and legal departments have been kept busy in 2018. They’ve seen changes to the modern slavery act, flexible work laws, long service leave (in Victoria), domestic violence leave, and 2019 will see Australia’s whistleblowing protection laws strengthen.
There are some specific legal changes worth taking a look back on. Some might not encompass the entire working population, but they’ve been extremely influential in their specific area.
The casual workforce
With the Parliament of Australia estimating there were approximately 2.5 million casual workers in Australia in 2016, (a quarter of the entire workforce), the ruling from Workpac v Skene was quite a big deal.
Skene claimed he was a permanent employee under the applicable enterprise agreement and the Fair Work Act, and was therefore entitled to annual leave, annual leave loading and penalties. The court agreed with Skene, ordering Workpac to pay his accrued leave entitlements on top of the casual rate of pay he’d been receiving.
“While the government could change the law to provide clarification, or address the practical issues arising from the decision, the current political climate doesn’t lend itself to change anytime soon. On this basis, employers and HR managers will need to be aware of the implications of the decision,” says Aaron Goonrey, partner at Landers and Rodgers.
The gig economy
It’s been a tumultuous year for the gig economy in Australia. While we’ve seen it grow, with Unions NSW estimating it adds $504 million per year to the NSW economy alone, and provides income for NSW 45,000 residents, we’ve also seen a big player exit the market.
On 20 August this year, Foodora officially ceased servicing the Australian community with door-to-door food delivery – with more than one sham contracting case hanging over their heads.
In the meantime a senate committee report pushed for changes to Australia’s employment laws, including tighter regulation of labour-hire companies, and better protections and entitlements for ‘non-standard’ workers.
Then, in November, the Fair Work Commission ruled that a Foodora rider, Joshua Klooger, was in fact an employee – not a contractor – creating a precedent that could empower gig workers and devastate some employers.
“It’s a tricky one because these companies want to deliver a higher level of service, but the more control and management you have, the more you’re pushed closer to an employment relationship,” says Andrew Jewell, principal lawyer at McDonald Murholme.
“This decision is quite big, and it’s quite big not just for Foodora (which has ceased trading) but for all of these gig economy companies,” he says.
Organisations with sensitive data
Data has been a hot topic in 2018, due to the Facebook/Cambridge Analytica scandal, CBA’s medical data breach, the ramifications of the Heathrow Airport USB debacle – the list could go on.
So it’s appropriate that in February this year, new data breach laws came into effect applying to all organisations with obligations under the Australian Privacy Principles. The law requires organisations responsible for data to inform anyone who has had that personal information compromised, if it’s perceived to result in “serious harm”. Employers must also notify the Office of the Australian Information Commissioner (OAIC) of any serious breaches.
“Serious harm” seems like a fairly ambiguous description. At the time Landers and Rogers partner Aaron Goonrey and lawyer Luke Scandrett suggested employers err on the side of caution when assessing if “serious harm” would occur from a data breach.
“OAIC has published some guidelines on this topic, which suggest that serious harm may include serious physical, psychological, emotional, financial, or reputational harm. It also recommends that the risk of serious harm be assessed holistically, having regard to both the likelihood of harm to the individuals involved, and the consequences of that harm.”
“Failure to meet the requirements of the new scheme will be considered equivalent to interfering with the privacy of an individual under Australia’s privacy laws,” they write.
Women at work
It’s been a huge year for women across the globe. In the wake of #metoo many cases of sexual harassment have been exposed. While fears of a backlash remain, never before have women been so able to stand up and speak out on issues of sexual harassment and violence.
In a January case, Carmelo Sapienza v Cash in Transit Pty Ltd T/A Secure Cash, the Fair Work Commission supported the dismissal of Mr Sapienza – who admitted to hugging and asking to kiss some of his female clients – despite the employer not even turning up to the hearing. At the time, Fay Calderone of Hall and Willcox said this perhaps signalled that in the era of #metoo and #timesup, cases of sexual behaviour in the workplace will not be tolerated.
“It was accepted Mr Sapienza was not provided with an opportunity to respond to the reasons for the termination clearly documented in the termination letters, and that he was summarily terminated without even a verbal conversation with his employer… it was found the process was seriously lacking in procedural fairness.”
“Nevertheless and quite bullishly by the FWC’s standards (pun intended), it was held that in view of Mr Sapienza’s admissions in respect to his physical contact with young female staff of a client, that the summary dismissal was not harsh, unjust or unreasonable,” she said.
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