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December 30, 2013

The regulatory schedule for 2014

2014 begins with some uncertainty: in addition to its legislation repealing the carbon tax and the mining tax, the Government has indicated it will be changing FOFA and conducting a Financial System Inquiry. Its charities changes have also been held up in the Senate.

It will also be "cleaning up" announced but unimplemented tax and superannuation changes. The Superannuation Guarantee charge percentage increase from 9.25% to 9.5% scheduled for 1 July 2014 has been postponed. The rate will remain at 9.25% until 30 June 2016.

But some significant changes will definitely commence in 2014, particularly the privacy changes commencing on 12 March.

1 January 2014

Anti-bullying law: anti-bullying legislation comes into effect on 1 January 2014 and will enable victims of workplace bullying to apply directly to the Fair Work Commission for an order that the bullying stop.

Small businesses will be apply to apply for External Dispute Resolution for disputes on loans up to $2 million

Risk management: New APRA standards for ADIs requiring a chief risk officer commence.

The Financial Claims Scheme single customer view commences.

The National Regulatory Scheme for Community Housing will also start in January.

The new statutory definition of charities will commence, notwithstanding the Government's proposed changes to the sector.

Other key dates

Personal Property Securities Act transition ends on 31 January 2014: pre-30 January 2012 securities must be registered on the PPS Register to retain priority.

National Gambling Reforms (including daily ATM limits in gambling venues) commence on 1 February 2014.

The Co-operatives National Law commences in NSW and Victoria on 3 March and later in the year in other States and Territories.

The Privacy Amendment Act commences on 12 March 2014 including changes to credit reporting.

Gender equality: from 1 April 2014 businesses with 100 or more employees will be required to lodge reports each year containing information relating to various gender equality indicators.

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Posted 30th December 2013 by David Jacobson in Charities, Compliance, Corporations Act, Financial Services, Privacy, Superannuation, Tax, Workplace

November 29, 2013

Safe Work Bullying Guides and FAQs

Safe Work Australia has published a Guide for Preventing and Responding to Workplace Bullying together with Dealing with Workplace Bullying – A Worker’s Guide and a set of frequently asked questions (FAQs) on workplace bullying.

The guides on workplace bullying focus on the duty to manage risks under work health and safety laws and provide advice to businesses and workers on how to prevent workplace bullying and how to respond if it does occur.

More: Anti-bullying law commences on 1 January 2014

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Posted 29th November 2013 by David Jacobson in Workplace

November 27, 2013

Anti-bullying law commences on 1 January 2014

Anti-bullying legislation will come into effect on 1 January 2014 and will enable victims of workplace bullying to apply to the Fair Work Commission (FWC) for an order that the bullying stop. (Background)

The FWC has released two draft documents in preparation for its new jurisdiction:

  • draft Anti-bullying case management model - Fair Work Commission (Model), and
  • draft Anti-bullying bench book - Fair Work Commission (Benchbook).

The Anti-bullying Benchbook and Case Management Model are designed to inform potential parties of the FWC’s procedures and relevant legislative provisions.

The new anti-bullying jurisdiction is not an avenue to provide compensation to those who have been subjected to bullying or to penalise employers. It is directed at preventing workers from being bullied at work.

The case management model has various steps, which culminate in the Panel Head determining if the matter should be sent for voluntary mediation with a Commission staff member, or direct to a Commission Member for mediation, conciliation or arbitration.

The Model makes it clear that the new anti-bulling legislation does not promote or recommend monetary settlements as a remedy for workplace bullying.

The Benchbook outlines the flexibility the FWC has to gather information it considers appropriate in relation to an anti-bullying application, including contacting the employer or other parties to the application, conducting a conference or holding a formal hearing.

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Posted 27th November 2013 by David Jacobson in Risk Management, Workplace

November 18, 2013

ASIC reviews employee incentive schemes

ASIC has released a Consultation Paper 218 on employee incentive schemes for persons offering and receiving shares or other financial products under an employee incentive scheme.

It seeks feedback on ASIC's proposals to extend relief currently in Class Order [CO 03/184] Employee share schemes and Regulatory Guide 49 Employee share schemes (RG 49). The paper attaches a draft updated version of RG 49.

ASIC's proposed changes include who can make offers and who can receive offers, to make it easier for employers and issuers to develop an employee incentive scheme, subject to new conditions to support the interests of participants who are considering taking up such a scheme.

Certain offers will only be alowed to be made by listed bodies.

The proposals reflect changes to the Corporations Act as well as developments in market practice for structuring employee share schemes.

ASIC considers that it is appropriate to reduce the compliance burden for employers if the following policy objectives are satisfied:
(a) the objective of the offer is not fundraising, but rather to enable employees to participate in the financial success (including the benefits of ownership) of a body;
(b) the offer sufficiently supports the long-term interdependence between the employer and the employee; and
(c) there are adequate protections for employees and, in particular, a history of disclosure in a well-regulated financial market, which will help employees in determining a reliable alternative market price for the financial products they are being offered.

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Posted 18th November 2013 by David Jacobson in Corporations Act, Financial Services, Workplace

November 13, 2013

Gender diversity in executives

The Business Council of Australia (BCA) has published a best practice resource kit titled Increasing the Number of Women in Senior Executive Positions: Improving Recruitment, Selection and Retention Practices.

The toolkit includes the following checklists:

  • The role of the board
  • The role of the CEO
  • Targets, measures and accountability
  • Culture and merit
  • Role definition and recruitment
  • Assessing applicants and the interview process
  • Improving decision-making processes and the success of women once they are appointed
  • Retention, development and succession planning
  • Career management and performance reviews
  • Remuneration.

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Posted 13th November 2013 by David Jacobson in Workplace

Planning for firearm attacks

The Australian-New Zealand Counter-Terrorism Committee (supported by the National Security Resilience Policy Division (NSRPD) of the Attorney-General’s Department) has published The Active Shooter Guidelines for Places of Mass Gathering which provide guidelines for planning and responding to a situation where a person uses a gun to threaten others at sites such as sporting venues, shopping/business precincts, public transport hubs and tourism/entertainment venues.

The guidelines aim to increase awareness of this particular type of threat, while also providing guidance on the issues and options that may be considered during risk mitigation and contingency planning activities.

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Posted 13th November 2013 by David Jacobson in Business Planning, Risk Management, Workplace

July 1, 2013

Anti-bullying law passed

The Fair Work Amendment Bill 2013 has been passed by Parliament and given Royal Assent. The anti-bullying provisions will commence on 1 January 2014.

Amongst other things, the Act enables a worker who reasonably believes that they have been bullied at work to apply to the Fair Work Commission for an order to prevent the worker being bullied at work.

A worker is an individual who performs work in any capacity, including as an employee, a contractor, a subcontractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer.

A worker is bullied at work if:
(a) while the worker is at work in a constitutionally-covered business:
(i) an individual; or
(ii) a group of individuals;
repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member; and
(b) that behaviour creates a risk to health and safety.

It therefore applies to workplaces run by companies but not unincorporated businesses and partnerships.

Bullying include behaviour that is victimising, intimidating, humiliating or threatening. A worker will not be bullied at work if the action is reasonable management action carried out in a reasonable manner.

The FWC is required to start dealing with a matter within 14 days after the application is made.

If the FWC is satisfied that the worker has been bullied, and there is a risk that the worker will continue to be bullied, it may make an order to prevent the worker being bullied at work. The power of the FWC to make an order does not extend to ordering reinstatement of a person or the payment of compensation or a pecuniary amount.

But a pecuniary penalty can be given for a breach of that order.

The FWC may refer a matter to a work health and safety (WHS) regulator where it considers this necessary and appropriate.

Employers should have a policy and procedures in place to respond to bullying claims.

Draft workplace bullying policy

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Posted 1st July 2013 by David Jacobson in Risk Management, Workplace

Sex discrimination scope extended

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 has been passed by both Houses and is awaiting Royal Assent.

UPDATE: Commencement on 1 August 2013

The Bill amends the Sex Discrimination Act 1984 to extend the protection from discrimination to the new grounds of sexual orientation, gender identity, and intersex status.

It also extends the existing ground of ‘marital status’ to ‘marital or relationship status’ to provide protection from discrimination for same-sex de facto couples in addition to opposite-sex de facto couples.

Discrimination on these new grounds is unlawful in the same circumstances as for other grounds already covered by the Sex Discrimination Act.

The Bill makes it clear that introducing protections against discrimination on these grounds does not affect current Government policy on same-sex marriage.

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Posted 1st July 2013 by David Jacobson in Risk Management, Workplace

Protection for Commonwealth whistleblowers

The Public Interest Disclosure Bill 2013 has been passed by both Houses and is awaiting Royal Assent.

The Bill provides protection for current or former Commonwealth public officials who make qualifying public interest disclosures under the scheme.

A public interest disclosure is a disclosure of information, by a public official, that is:
• a disclosure within the government, to an authorised internal recipient or a supervisor, concerning suspected or probable illegal conduct or other wrongdoing (“disclosable conduct”); or
• a disclosure to anybody, if an internal disclosure of the information has not been adequately dealt with, and if wider disclosure satisfies public interest requirements; or
• a disclosure to anybody if there is substantial and imminent danger to health or safety; or
• a disclosure to an Australian legal practitioner for purposes connected with the above matters.

However, there are limitations to take into account the need to protect intelligence information.

A person who makes a public interest disclosure is not subject to any civil, criminal or administrative liability for making the disclosure. Also no contractual or other remedy may be enforced or sanction imposed on the basis of making the disclosure.

The discloser has absolute privilege for defamation proceeding in respect of a public interest disclosure and a contract to which the discloser is a party must not be terminated on the basis that the disclosure constitutes a breach of contract.

The penalty for the offences of taking a reprisal or threatening to take a reprisal against a person who has made a disclosure to 2 years imprisonment or 120 penalty units ($20,400) or both.

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Posted 1st July 2013 by David Jacobson in Whistleblowers, Workplace

June 21, 2013

Unfair dismissal threshold increases from 1 July 2013

The high income threshold under the Fair Work Act will increase on 1 July 2013 to $129,300.

The high income threshold affects 3 main entitlements:

  • employees who earn more than the high income threshold and who aren’t covered by a modern award or enterprise agreement, can’t make an unfair dismissal claim;
  • employees who are covered by a modern award and have agreed to a written guarantee of annual earnings that is more than the high income threshold, don’t get modern award entitlements. However, they can make an unfair dismissal claim;
  • the maximum amount of compensation payable for unfair dismissal is capped at either half the high income threshold (ie $64,650), or 6 months of the dismissed employee’s wage - whichever is less.

An employee is eligible to make an application for unfair dismissal if they have completed the minimum employment period of:

  • 12 months—where the employer is a small business employer; or
  • 6 months—where the employer is not a small business employer.

The Fair Work Act defines a small business employer for unfair dismissal purposes as being one who employs less than 15 employees by individual head count.

For a small business employer to dismiss someone fairly after 12 months the employer will have to comply with the Fair Dismissal Code for Small Business.

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Posted 21st June 2013 by David Jacobson in Workplace
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