Australia: Employment Legislative Updates (Dec 2019-Feb 2020)
Despite Parliaments in Australia usually being in recess over the Christmas and New Year period, the Federal lower house and Victorian upper house have both passed noteworthy Bills that mark significant changes to the employment law space.
The Ensuring Integrity (No. 2) Bill 2019 (Cth)
The Fair Work (Registered Organisations) Amendment (Ensuring Integrity No. 2) Bill 2019 (Cth) (“the Ensuring Integrity Bill”) has recently passed the lower house of the Commonwealth Parliament and is currently before the Australian Senate. The Bill responds to the recommendations of the Final Report of the Royal Commission into Trade Union Governance and Corruption. According to the Explanatory Memorandum, the Ensuring Integrity Bill aims to ensure the integrity of registered organisations and their officers, for the benefit of members. Registered organisations are associations of employees or employers (so, unions and employer associations) formally registered by the Fair Work Commission.
There are three notable amendments being made by the Ensuring Integrity Bill. Firstly, the amendments will significantly expand the situations in which a person may be disqualified from union office. If a person receives any conviction or order that they pay a pecuniary penalty under the Fair Work (Registered Organisations) Act 2009 (Cth), Fair Work Act 2009 (Cth), or Commonwealth or State work health and safety laws, then they will be disqualified from holding office of a registered organisation.
Secondly, the Ensuring Integrity Bill expands the grounds available for the Federal Court to cancel a registered organisation’s registration. New grounds for cancellation include the conduct of the affairs of the organisation, serious breaches of criminal laws, or if there are multiple findings against a substantial number of members.
Lastly, the Ensuring Integrity Bill will introduce a ‘public interest test’ for certain union mergers, if there is a history of non-compliance by the registered organisation. The purpose of the Ensuring Integrity Bill, as the Attorney-General puts it in the second reading speech, is to ‘deal with those registered organisations who have shown an absolutely unfettered disregard for the law’. These changes follow the recent substantial fines against registered organisations for unlawful union behaviour. In September 2019, the Federal Court ordered a $108,875 fine for the Construction Forestry Maritime Mining Energy Union for coercing a subcontractor into signing an enterprise agreement. In February 2020, the Communications Electrical Plumbing Union was fined $445,000 in the Federal Court for historic reporting breaches.
Gender Equality Bill 2019 (Vic)
The Gender Equality Bill 2019 (Vic) (“the Equality Bill”) has recently passed the Victorian Parliament, and is due to now go to the Governor of Victoria for royal assent.. According to the Explanatory Memorandum, the Equality Bill requires ‘defined entities’ to take positive action towards achieving workplace gender equality and incorporating gender equality in their policies, programs and services. In section 5 of the Bill, a ‘defined entity’ in Victoria is specified as a public service body, public entity, Council, Court Services Victoria, a university or the Office of Public Prosecutions. A defined entity must have 50 or more employees. Under Part 3 of the Equality Bill, the defined entity must undertake a gender impact assessment when developing any policy, program or service that has a direct and significant impact on the public. Under Part 4 of the Equality Bill, the defined entity must undertake a workplace gender audit in order to assess the state and nature of gender inequality in the workplace and the disadvantage a person may experience on the basis of other protected attributes (such as race, sexual orientation, age or disability). The entity must then prepare a Gender Equality Action Plan (“the Plan”) that includes the results of the audit and strategies for promoting gender equality. Under Part 5 of the Equality Bill, the defined entity must prepare a progress report every second year after submitting the Plan, which, amongst other things, reports on the defined entity’s progress in relation to the measures and strategies in the Plan. The Equality Bill also states that regulations can prescribe mandatory targets and quotas relating to gender equality indicators, and that the defined entity must make reasonable and material progress towards these targets and quotas.
The Equality Bill also establishes a Public Sector Gender Equality Commissioner (“the Commissioner”). Under Part 6, the Commissioner may issue a compliance notice to a defined entity if the Commissioner reasonably believes that the defined entity has failed to comply with the Act by not preparing a Gender Equality Action Plan, not preparing or submitting a progress report or not making reasonable and material progress in relation to workplace gender equality indicators, targets or quotas. If the defined entity does not comply with a compliance notice, the Commissioner may accept a written undertaking from the defined entity, recommend the Minister take any action, publish on the Commissioner’s website the name of the defined entity or apply to the Victorian Civil and Administrative Tribunal for an order directing the defined entity to comply with the notice. The Commissioner also has the power under Part 7 of the Equality Bill to deal with a dispute arising from an enterprise agreement or a workplace determination that covers a defined entity if the dispute relates to a systemic gender equality issue. The Commissioner, however, cannot make any binding determination in relation to a dispute.
Although the Equality Bill only applies to the public sector, local councils and universities in Victoria, it will be the first Act of its kind in Australia that legislates for positive action toward workplace gender equality. The employers listed as ‘defined entities’ cover roughly 11% of the Victorian workforce. The Act may be the start of an institutional shift to workplaces taking positive action to address systemic gender inequality.
For more information on these articles or any other issues involving labour and employment matters in Australia, please contact Michael Harmer (Partner) of Harmers Workplace Lawyers at michael.harmer@Harmers.com.au or visit www.harmers.com.au.
