It's hard to believe that it's nearly the end of the year!

In the rush, you might not have noticed that the last few of months of 2018 have been a very busy time for Parliament, the Fair Work Commission and the Courts as well.

We summarise some of the major developments below – including some things that should be top of mind as you start thinking about 2019 and at least one thing you need to be looking at right now, before Christmas. Those developments are:

• the amendment of the Fair Work Act 2009 to include a new right to up to five days of unpaid family and domestic violence leave per annum;
• the inclusion of obligations in many awards for employers to discuss and make a genuine attempt to reach agreement on requests for flexible work arrangements and provide detailed reasons for a refusal on business grounds:
• developments concerning casual employees – including the requirement to give many award covered casual employees notice of casual conversion rights by 1 January 2019 and amendments to the Fair Work Regulations to allow offsetting claims for annual leave and other NES entitlements against the casual loading, at least where the loading is clearly paid in lieu of that entitlement; in relation to the Full Court Federal Court case in Workpac v Skene [2018] FCAFC 131;
• changes concerning the payment of entitlements on termination of employment – which require payment of employee statutory entitlements for many award covered employees within seven days of termination (as opposed to in the next pay run);
• agreement being reached on amendments to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (which the Senate has now passed), including a carve out for 'personal work-related grievances';
• the passage of the long delayed Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2019 – which allows the Fair Work Commission to excuse technical errors in notices of representational rights in enterprise bargaining; and
• changes to the Form F17 statutory declaration to be lodged with enterprise agreements when seeking Fair Work Commission approval. 

Unpaid family and domestic violence leave

The Fair Work Amendment (Family and Domestic Violence Leave) ACT 2018 has been passed by Parliament. It amends the Fair Work Act 2009 (Cth) (FW Act) to introduce into the National Employment Standards (NES) a right to take unpaid family and domestic violence. It commenced operation on 12 December 2018.

Under the amended NES, employees are entitled to five days of unpaid family and domestic violence leave in a 12 month period (with the leave becoming available from the start of the 12 month period). Importantly, this extends in full to part-time and casual employees.

An employee may take this leave as a single continuous period, separate periods of one or more days each, or any separate periods to which the employee and employer agree (including periods of less than one day).

The leave will be available where an employee is experiencing family and domestic violence and needs to deal with the impact of it, but it is impractical to do so outside their ordinary hours of work. The family and domestic violence and the notice and evidence requirements of section 107 of the FW Act will also apply. 

Many organisations already provide this leave – by way of policy or under an enterprise agreement. However, all employers will need to consider how they comply with these changes – including ensuring payroll systems are set up to accommodate this type of leave or, failing that, that manual systems are in place as a temporary measure. You may also wish to consider:

• amending template contracts to refer to this unpaid leave entitlement (especially if contracts list out other types of paid and unpaid leave);
• amending existing policies so employees are aware of the leave and when it is available; and
• notifying employees of the changes.

Flexible Work Requests

The Fair Work Commission (FWC) also introduced, from 1 December 2018, a new model award term which supplements the existing flexible work provisions in the NES (Flexibility Clause).

As you will be aware, the NES provides that an employee can request a change in their working arrangements from their employer if they require flexibility because they:

• are the parent, or have responsibility for the care, of a child who is of school age or younger;
• are a carer (within the meaning of the Carer Recognition Act 2010);
• have a disability;
• are 55 years of age or older;
• are experiencing violence from a member of their family; or
• provide care or support to a member of their immediate family or household, who requires care or support because they are experiencing violence from their family.

The Flexibility Clause requires, amongst other things, that employers discuss and make a genuine attempt to reach agreement on requests for flexible work arrangements and provide detailed reasons for a refusal on business grounds.

However, the Flexibility Clause does not require employers to agree to the request.

Refer to the list of awards which contain the new Flexibility Clause. You will need to click through to check the wording of the clause in your particular award, as there can be individual variations to the model.

Casual employees

The Four Yearly Review of modern awards inserted casual conversion clauses into 85 modern awards, which came into effect on 1 October 2018.

The model clauses allow a regular casual employee after six or 12 months (depending on the award) of regular service to request to convert their employment to part time or full time employment. An employer can refuse the request on reasonable grounds after there has been consultation with the employee.

Importantly, the model clauses also require employers to give casual employees written notice of the casual conversion clause (Conversion Notice). This must be provided:

• within four weeks of the casual employee attaining the required period of service (six or 12 months) where their first engagement commences after 1 October 2018; or
• for those casual employees engaged as at 1 October 2018, by 1 January 2019.

Importantly, this means you will need to be giving the Conversion Notice to casual employees covered by the relevant awards in the next week or so, but practically probably before Christmas.

The list of the awards with the new model clause (or some variation on it) is available online. You will need to click through to check the wording of the clause in your particular award, as there can be individual variations to the model.

The Government has also announced that it will include a casual conversion right for all employees in the National Employment Standards. Jobs and Industrial Relations Minister Kelly O'Dwyer said “If award reliant employees have the right to make a request and it is subject to reasonable safeguards for employers, it is only fair that the same right is extended to other casuals who currently do not have the same right.”

The Government has just made changes to the Fair Work Regulations to allow employers to set off casual loading paid to an employee against amounts claimed for claims for annual leave and other NES entitlements. However, the loading must be clearly identifiable as an amount to compensate the employee for the relevant NES entitlements.

This follows the recent decision in Workpac v Skene [2018] FCAFC 131 in which the Full Court of the Federal Court confirmed the correct approach for classifying casual employees is the common law test (looking at a range of factors) and not simply the fact they are engaged and paid as a casual (which is the terminology typically used in modern awards). As a result, the Court ruled that having regard to Mr Skene's regular and systematic engagement he was, in fact, a permanent employee and entitled to accrued annual leave.

It remains to be seen whether the Senate will disallow the amended regulation. It is also likely that the regulation will be tested in Court.

Payment of entitlements on termination of employment

The Four Yearly Review of modern awards also inserted clauses into 89 modern awards relating to payments on termination of employment, which came into effect on 1 November 2018.

The model clauses require payment of an employee's statutory entitlements within seven days of termination. Some modern awards already contain shorter periods for payment of wages (and other amounts) on termination of employment and these are currently under consultation. Also, under the NES, payments in lieu of notice must be paid at the time of termination.

For convenience, many businesses may have paid these amounts in the next pay run after termination. However, depending on the timing, this could be a breach of the (FW Act) risking penalties of up to $63,000 for the employer and up to $12,600 for those individuals who are personally involved.

Whistleblowing update

In its last sitting week, the Senate passed the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (Bill) in an amended form.

The Bill will:

• amend the Corporations Act 2001 to strengthen and consolidate whistleblower protections;
• amend the Taxation Administration Act 1953 to create a whistleblower protection regime for disclosures of information by individuals about breaches of the tax laws or misconduct in relation to an entity's tax affairs; and
• repeal the existing financial sector whistleblower regime and implement transitional arrangements.

The amendments passed by the Senate include the following:

• changing the scope of eligible recipients from any 'person who supervises or manages' to 'senior managers' (as well as officers);
• providing a carve-out for disclosures about 'personal work-related grievances' meaning they would not benefit from the whistleblower protections in some circumstances;
• providing an avenue for 'public interest disclosures' to Parliament/journalists in some circumstances, based on a broad public interest test;
• amending the provisions relating to 'emergency disclosure' to Parliament/journalists;
• clarifying the definition of 'journalist' to include national broadcasting services;
• amending the concept of 'victimising conduct' and replacing this with 'detrimental conduct' and broadening the scope of conduct that a Court may order compensation for;
• broadening the circumstances in which a Court can make orders against a body corporate ie, where it is under a duty to prevent a person engaging in detrimental conduct against the discloser and applying a reverse onus of proof;
• removing the complete defence of due diligence to compensatory orders and instead including considerations a Court must take into account including, among other things, whether the employer has a policy that deals with all of the mandatory policy requirements, whether or not that employer is required to have one, and the extent to which the employer gave effect to that policy.

For many readers, the most significant change is the carve out of 'personal work-related grievances'. The examples listed in the Bill are broad and will, in most cases, mean the whistleblowing protections will not be available to an employee for a typical workplace complaint (eg bullying) assuming that the complaint does not have significant implications for the employer beyond the individual employee who makes the disclosure. Of course, employees still have other protections, including the 'adverse action' provisions under the FW Act.

Next steps for a whistleblower policy

The next step is for the Bill, in its amended form, to pass through the House of Representatives. The first scheduled sitting for Parliament in 2019 is in mid-February.

If the Bill is passed by the House of Representatives, the proposed commencement of the Act has been amended to be the first of 1 January, 1 April, 1 July or 1 October to occur after the end of three months from the day the Act receives the Royal Assent. The requirement to have a compliant whistleblower policy will not commence until 6 months after the commencement of the Act.

For example if the Royal Assent is received on 28 February 2019, then we could expect the Act to commence on 1 July 2019, and the policy requirement to commence on 1 January 2020.

However, an employer will still need to comply with the Act from when it commences, even though they do not need to have a compliant policy.

We will provide you with further updates on the passage of the Bill.

What should you be doing?

Ideally you will want a compliant whistleblowing policy in place from the date the Act commences or, failing that, at least some way of dealing with complaints that means you do not breach the Act.

Early next year you should be reviewing your whistleblowing policies to reflect the mandatory policy requirements, as well as your existing grievance resolution procedures to see how they fit in with the scope of 'personal work-related grievances'.

Minor errors in Notice of Employee Representational Rights no longer a bar to approval

Parliament has also passed the long delayed Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Act 2018 – originally introduced in 2017.

Importantly, the Act means that minor procedural or technical errors relating to Notice of Employee Representational Rights (NERRs) issued to employees when bargaining commences will no longer be a bar to the FWC approving an enterprise agreement - provided the errors did not cause disadvantage to the employees.

The FWC has decided that it could not approve enterprise agreements where there was some deficiency in the NERR – even if it was very minor. This caused significant issues, as sometimes issues only became apparent when in principle agreement was reached or, worse still, after the vote. This meant employers were having to re issue the NERR and go through the voting process again.

Thankfully, this has now been rectified, although employers should be aware that this only extends to minor procedural and technical errors, not substantive errors. The best approach remains to ensure your NERRs are correct.

As noted above, the Act also abolishes the four yearly review of modern awards.

On a related topic, you should also be aware that the FWC has updated the Form F17 statutory declaration to be lodged with enterprise agreements when seeking FWC approval – including additional requirements concerning the BOOT test.

This is important, as you will not be able to simply copy over your old F17 form and update it when lodging your next enterprise agreement.