Industrial relations and employment regulation have been centre stage recently, with the Federal Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs Act) passing federal Parliament at the start of this month after weeks of crossbench negotiations. Our recent coverage of this Act is available here and here.
With this area of regulation in sharp focus, we look beyond the Secure Jobs Act to bring together some of the current key employment law topics relevant to organisations across Australia’s food and agriculture sector now.
Respect@Work changes: A new approach to sexual harassment in the workplace
- In March 2020, the Respect@Work Report was released following a landmark national inquiry into workplace sexual harassment. The Report made 55 recommendations, having identified that sexual harassment is “prevalent and pervasive” in Australian workplaces, and that the related legal framework is outdated and difficult to navigate.
- The former Coalition government legislated several Report recommendations (see our article here). More recently, the Federal government has committed to fully implementing all 55 recommendations, with a landmark Act to address several of them passing federal Parliament late last month (see our coverage on the Bill hereand here, with our latest posts on the Act as passed available here and here).
- Among other things, the new Act will implement one of the Report’s key recommendations: creating a positive dutyon employers and persons conducting a business or undertaking (PCBUs) to take reasonable and proportionate measures to eliminate sex discrimination, sexual and sex-based harassment, hostile work environments and workplace victimisation as far as possible.
- This is a critical shift away from a traditionally reactive model of addressing sexual harassment towards a proactive, prevention-focused model of mitigating the issue. After the current 12 month grace period comes to an end, the Australian Human Rights Commission will be tasked with assessing and enforcing compliance with the positive duty.
- At this stage there is limited guidance on what will constitute a ‘reasonable and proportionate measure’. However, measures in the food and agriculture sectors may include:
- Ensuring accommodation facilities and remote working conditions are safe;
- Limiting the use of isolated work settings;
- Delivering workforce training and education (including at the Board and senior management level) on a regular basis; and
- Implementing policies and procedures that provide a mechanism for raising concerns as well as carrying out data collection, and monitoring to assess the effectiveness of frameworks in place to address and prevent workplace sexual harassment.
- With the new Act receiving Royal Assent earlier this week and the 12 month grace period now underway in respect of the positive duty, now is the time for agribusinesses to start thinking about their implementation of the positive duty and other incoming legislative changes. To learn more about this issue, tune in to our podcast series Let’s Talk Respect@Work, available via our Employee Relations & Safety website here.
Psychosocial risks and hazards: Employers’ enhanced work health and safety obligations
- In August this year, new model Work Health and Safety (WHS) Regulations on psychosocial hazards in the workplace were released. The new WHS Regulations will apply on a State/Territory basis when each jurisdiction introduces the changes, as NSW has already done.
- Under the new model Regulations, a PCBU will have an express duty to implement control measures to eliminate (or otherwise minimise) ‘psychosocialrisks’ to a worker’s or other person’s health or safety arising from ‘psychosocial hazards’, as far as reasonably practicable. Psychosocial hazards arise from or relate to work design or management, work environment, workplace plant, or workplace interactions and behaviours, and may cause psychological harm.
- Agribusinesses are particularly susceptible to psychosocial hazards due to certain work characteristics common to the sector. These hazards can include variable working environments which may affect work quality, the demanding nature of jobs and workplace isolation.
- Most States and Territories have already published guidance or codes of practice on managing psychosocial hazards in the workplace (and regulations on this issue are also expected in Victoria, which has not adopted the model WHS laws). With this in mind, it would be prudent to review the incoming changes, monitor their expected implementation, and consider how your organisation is managing psychosocial hazards within its operations.
Wage underpayments and industrial instrument non-compliance
- In recent years, a significant number of public and private companies have self-reported or been subject to investigation by the Fair Work Ombudsman (FWO) for employee-related underpayments and non-compliance with industrial instruments. Around two thirds of enforceable undertakings (EUs) entered into with the FWO relate to some form of underpayment, often involving the food and beverage industry.
- Key causes of underpayments and non-compliance we have observed include the misapplication of industrial instruments, misclassification of workers, use of annualised salaries, inadequate payroll processes, problematic time keeping practices, data entry errors and lack of verification and auditing processes. See our previous articles on this topic hereand here.
- The food and agricultural sectors are considered by the FWO as particularly susceptible to the risk of underpayments and non-compliance. This may be due to factors including labour shortages, work pressures and demands, and in some cases, structural factors affecting an enterprise.
- The FWO has made it clear that it will no longer be lenient with organisations facing underpayment or non-compliance issues even when they self-report. Ensuring the food and agriculture industries are compliant is a key strategic priority for the FWO. In the past year, the FWO has undertaken compliance-based investigations of more than 190 business across four states in the sector.
- Agribusinesses should remain alert to the FWO’s increased focus and take steps to ensure compliance with pay-related obligations. This may include implementing appropriate industrial instrument coverage and classification assessment procedures and undertaking regular reviews to ensure the accurate classification of industrial instrument-covered workforces and payment of entitlements.
Migrant labour
- The issue and prevalence of migrant worker exploitation has come to the fore in recent years, particularly with the substantial growth in numbers of temporary visa holders in Australia.
- Exploitation of migrant labour comes in many forms, including underpayments, unsafe working conditions, the threat of visa cancellation, excessive overtime, confiscation of passports or identity documents and restrictions on freedom of movement. There are significant business risks associated with these types of practices, including the potential operation of the modern slavery framework under the Criminal Code 1995(Cth). Read more about modern slavery risks in Australian agribusiness here.
- In recognition of the rising problem of migrant worker exploitation, in 2019 the federal Migrant Workers’ Taskforce published a report with 22 recommendations to address migrant labour exploitation. The recommendations were accepted in principle by the former Coalition government, with the current government stating that it is committed to implementing them. We will continue to monitor developments in this space.
- Given this context, agribusinesses should continue to take steps to ensure that ethical recruitment practices are engaged and the workforce, particularly where an organisation is labour-hire dependent and reliant upon migrant labour, are adequately remunerated, have safe working environments and suitable living conditions, and that visa obligations are being met.
If you would like to discuss any of these issues further, please get in touch with Ruth Rosedale or any of the contacts below
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