Workplace « Australian Regulatory Compliance Review from Langes+ Lawyers

June 19, 2013

Regulation reviews to help tech start-ups

The Government has announced two reviews designed to assist tech start-ups.

The Government will undertake consultation on Australian crowd-sourced equity funding (CSEF), which will consider whether Australia’s corporations law properly regulates and facilitates CSEF.

This follows ASIC's guidance published last year to promoters of crowd fundraising.

Treasury has separately announced a review into employee share schemes to help address the barriers faced by start-up companies in attracting and retaining staff.

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Posted 19th June 2013 by David Jacobson in Corporations Act, Funds, Web/Tech, Workplace

June 5, 2013

Draft Code of Practice: Preventing and Responding to Workplace Bullying

Safe Work Australia has released a draft Code of Practice: Preventing and Responding to Workplace Bullying for public comment. The draft code has been released with a draft Workplace Bullying - Guide for Workers.

The draft Code contains sections on preventing workplace bullying, responding to workplace bullying and investigations.

It also includes an example of a workplace bullying policy.

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Posted 5th June 2013 by David Jacobson in Workplace

April 16, 2013

Proposed changes to self-education expense deductions

The Commonwealth Government has announced it proposes to cap tax deductions for work related self-education expenses.

From 1 July 2014, work related self-education expenses will be subject to an annual cap of $2,000 a person.

Currently employers are not liable for fringe benefits tax for education and training they provide to their employees – this treatment will be retained, unless an employee salary sacrifices to obtain these benefits.

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Posted 16th April 2013 by David Jacobson in Tax, Workplace

April 9, 2013

Reminder: superannuation guarantee charge increases on 1 July 2013

The Superannuation Guarantee (Administration) Amendment Act 2012 increases the Superannuation Guarantee charge payable by employers from 9 percent to 12 percent of an employee’s ordinary time earnings (up to a prescribed maximum) over the next 6 years.

The first Superannuation Guarantee charge percentage increase is from 9% to 9.25% on 1 July 2013.

Subsequent increases are: 9.5% on 1 July 2014, 10% on 1 July 2015, 10.5% on 1 July 2016, 11% on 1 July 2017 and 11.5% on 1 July 2018. On 1 July 2019 the rate will be set at 12 per cent for 2019-20 and subsequent income years.

The maximum age limit of an employee at which the superannuation guarantee no longer needs to be provided is also abolished. Currently employers are required to contribute to complying superannuation funds of eligible mature age employees aged 70 and older.The SG maximum age limit of 70 has been removed and employers are required to contribute to complying superannuation funds of eligible mature age employees aged 70 and older.

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Posted 9th April 2013 by David Jacobson in Superannuation, Workplace

March 22, 2013

Grounds of sexual discrimination to be widened

The Government has introduced the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013 into the House of Representatives.

If passed the Sex Discrimination Act will be amended to extend the protection from discrimination to the new grounds of sexual orientation, gender identity, and intersex status.

The existing ground of ‘marital status’ will be extended to ‘marital or relationship status’ to provide protection from discrimination for same-sex de facto couples.

Discrimination on these new grounds will be unlawful in the same circumstances as for other grounds already covered by the SDA. The changes ensure that same-sex relationships will be treated in the same way as other de facto relationships for the purposes of Commonwealth entitlements and programs, including taxation, superannuation, health, aged care, immigration, child support and family law.

The Senate Legal and Constitutional Affairs Legislation Committee has an inquiry into the Bill.

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Posted 22nd March 2013 by David Jacobson in Business Planning, Compliance, Workplace

March 11, 2013

Workplace Gender Equality Indicators

From 1 April 2013 businesses with 100 or more employees will be required by section 13 of the Workplace Gender Equality Act 2012 to lodge reports each year containing information relating to various gender equality indicators. Background

The Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) prescribes the matters to be reported with respect to each of 6 indicators for 2013 and then from 1 April 2014:

Gender Equality Indicator 1—gender composition of the workforce.
Gender Equality Indicator 2—gender composition of governing bodies of relevant employers
Gender Equality Indicator 3—equal remuneration between women and men
Gender Equality Indicator 4—availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities
Gender Equality Indicator 5—consultation with employees on issues concerning gender equality in the workplace
Gender Equality Indicator 6—sex-based harassment and discrimination

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Posted 11th March 2013 by David Jacobson in Corporate Governance, Workplace

February 5, 2013

Board planning: gender equality

From 1 April 2014 businesses with 100 or more employees will be required by section 13 of the Workplace Gender Equality Act 2012 to lodge reports each year containing information relating to various gender equality indicators.

The Act defines "gender equality indicators" as including the gender composition of governing bodies of relevant employers.

The "governing body of a relevant employer" means the board of directors, trustees, committee of management, council or other governing authority of the employer.

Boards of affected businesses, whether ASX listed or not, should adopt appropriate policies.

The ASX Diversity Resources is a helpful reference site.

The 2012 Australian Census of Women in Leadership imdicated that Women hold 12.3% of directorships in the ASX 200 but only 9.2% in the ASX 500.

Before 1 April 2014, the Minister will, by legislative instrument, set minimum standards in relation to specified gender equality indicators (GEIs).

The Workplace Gender Equality Agency will develop industry-specific benchmarks against the GEIs to allow employers to compare their progress in gender equality with others in their industry.

From the 2014–15 reporting period, if a relevant employer submits a report that does not meet a minimum standard, and does not improve against it by the end of two further reporting periods, it may be non-compliant.

Background

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Posted 5th February 2013 by David Jacobson in Corporate Governance, Workplace

January 31, 2013

Developing a social media policy for your business

While social media (any form of interactive online communication) is a relatively new marketing channel for you to generate new business and interact with customers, the laws that apply to other means of communication apply equally to social media.

The risks include potential consumer protection law breaches and other legal, reputation, and operational risks.

Increased risk can arise from poor oversight or control.

The ACCC has published an Information Sheet setting out its view that businesses using social media channels like Facebook, Twitter and YouTube have a responsibility to ensure content on their pages is accurate, irrespective of who put it there.

A business that has chosen not to use social media should still be prepared to address the potential for liability for defamation or negative comments or complaints that may arise in social media.

Activities that result in dissatisfied consumers and/or negative publicity could harm your reputation even if you have not breached any law.

Employees’ communications via social media, even through employees’ own personal social media accounts, may be viewed by the public as reflecting their employer’s official policies or may otherwise reflect poorly on the employer. Therefore, you should establish appropriate policies to address employee participation in social media that implicates your business.

If you haven't reviewed your policy recently (or don't have one) here are some issues to consider:

Have you planned for compliance with laws relating to data security, privacy, debt collection, misleading or deceptive marketing, the Spam Act, workplace issues, consumer protection, fraud, consumer complaints, payment system issues and AML/CTF ?
Do you intend to limit comment to authorised employees or allow all staff to make comments about your business whether or not they are at work?
If you allow your employees to use social media on behalf of the company, can they take their social media account with them when they leave?
Do you require all employees using social media to talk about the business to disclose their association with the business?
Do you prohibit the disclosure of confidential business information?
Do you prohibit the disclosure of customer information?
Do you require staff to inform you about negative comments about your business they become aware of?
Do you prohibit unlawful or offensive comments?
Will a breach of your policies result in dismissal?
What arrangements do you have for keeping a record of your social media activity?

What do you need to do?
1. Develop policies and procedures (either stand-alone or incorporated into other policies and procedures) regarding the use and monitoring of social media and compliance with all applicable laws. The policies and procedures should address risks from online postings, edits, replies, and retention.

2. Implement an employee training program that incorporates your policies and procedures for official, work-related use of social media.

3. Monitor information posted to social media sites administered by you.

Background

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Posted 31st January 2013 by David Jacobson in Compliance, Marketing, Privacy, Web/Tech, Workplace

January 21, 2013

Director liability issues for 2013: taking reasonable steps to comply

From time to time clients ask us for a list of all the things for which directors can be liable.

When creating a list of all those things that can create liability for directors it's important to firstly understand that corporate governance consists of improving the performance of the business in the best interests of shareholders as well as managing risks and monitoring compliance. The board's role is not limited to compliance.

When looking at compliance issues you should distinguish between those things that a director does (or fails to do) personally as well as things that the company does (or fails to do) for which a director is liable.

The first category (liability for personal conduct) includes: don't steal, don't lie or cheat, don't get a personal benefit by misusing confidential information, don't fail to do your best for the company because you have a competing personal interest.

The second category (personal liability for corporate conduct) includes liability for insolvent trading, misleading statements to investors as well as breaches of environmental and hazardous goods legislation, workplace health and safety laws and consumer protection laws.

Some issues will be regular items on your agenda (eg director disclosures), some will be six-monthly or annual items (eg financial reports, executive remuneration, annual licence renewals) and others will be special matters depending on your activities (eg signing off on fundraising).

If you are prosecuted for a corporate breach, the key issue is whether you took "reasonable steps" to ensure that the company complied with the provision.

Under some laws you are presumed to have taken reasonable steps unless the prosecution proves otherwise. Under other laws you have the burden of proving you took reasonable steps. Background

What are reasonable steps?

The Corporations Act does not define reasonable steps. They vary with the circumstances.

In ASIC v Healey (Centro) Judge Middleton discussed the minimum steps a director needed to take before approving financial statements.

Unfortunately the director liability laws for state-based offences still vary between states.

Section 97 of the Miscellaneous Acts Amendment (Directors' Liability) Act 2012 NSW defines "reasonable steps" as follows:

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, such action (if any) of the following kinds as is reasonable in all the circumstances:
(a) action towards:
(i) assessing the corporation’s compliance with the provision creating the executive liability offence, and
(ii) ensuring that the corporation arranged regular professional assessments of its compliance with the provision,
(b) action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,
(c) action towards ensuring that:
(i) the plant, equipment and other resources, and
(ii) the structures, work systems and other processes, relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,
(d) action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive
liability offence.

The proof required to show you took reasonable steps varies with the alleged offence.

The starting point is to carry out a risk assessment appropriate to your business.

But don't forget to spend time growing the business.

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Posted 21st January 2013 by David Jacobson in Compliance, Corporate Governance, Corporations Act, Trade Practices, Workplace

January 7, 2013

Workplace Gender Equality Act 2012

The Equal Opportunity for Women in the Workplace Amendment Act 2012 received Royal Assent on 6 December 2012. It amends the Equal Opportunity for Women in the Workplace Act 1999 and changes the title of the Act to Workplace Gender Equality Act 2012.

It imposes new reporting requirements on employers (including higher education institutions that are employers and non-public sector organisations with 100 or more employees).

The name of the Equal Opportunity for Women in the Workplace Agency is also changed to the Workplace Gender Equality Agency. The WGEA will monitor employer compliance.

New reporting obligations
A new reporting framework which requires employers to report against gender equality indicators will be phased in over a 2 year period.

If a relevant employer’s number of employees falls below 100, it must continue to report until employee numbers fall below 80.

The reporting period under the WGE Act refers to the 12 months from 1 April to 31 March, with reports being due between 1 April and 31 May.

For the reporting period 1 April 2012 to 31 March 2013, relevant employers will be required to prepare a public report which sets out the employer’s workplace profile and to comply with limited parts of the new framework.

Employers will be required to make public reports accessible to employees and shareholders and unions.

For the reporting period commencing on 1 April 2013 and onwards, a relevant employer must prepare and lodge a public report containing information relating to the employer and to the gender equality indicators. The report must be signed off by the employer's CEO. New minimum standards will also be required to reported on from the 2014–15 reporting period.

The public report must:
(a) set out the workplace profile;
(b) describe the employer’s analysis of the issues in the employer’s workplace relating to equal opportunity for women;
(c) describe the actions taken by the employer during the reporting period to address the priority issues identified in the analysis; and
(d) describe the actions that the employer plans to take in the next reporting period to address the issues relating to employment matters that the employer would need to address to achieve equal opportunity for women in the workplace.

The gender equality indicators that a relevant employer must report on are:
• gender composition of the workforce;
• gender composition of governing bodies of relevant employers;
• equal remuneration between women and men;
• availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring responsibilities;
• consultation with employees on issues concerning gender equality in the workplace; and
• any other matters specified in an instrument made by the Minister.

The employment matters are defined as:
• the recruitment procedure, and selection criteria, for appointment or engagement of persons as employees
• the promotion, transfer and termination of employment of employees
• training and development for employees
• work organisation including flexible working arrangements
• conditions of service of employees including equal remuneration between women and men
• arrangements for dealing with sex-based harassment of employees in the workplace
• arrangements for dealing with pregnant, or potentially pregnant employees and employees who are breastfeeding their children
• arrangements relating to employees with family or caring responsibilities.

Penalties
Although the Agency may identify non-compliant employers in its annual report to the Minister ("name and shame") there are no penalties under the WGE Act.

Ineligibility for government contracts, grants and financial assistance may also be a substantial consequence for non-compliance with the WGE Act.

Employers may be subject to financial penalty (under the Fair Work Act 2009) or be ordered to pay damages (under the Sex Discrimination Act 1984) if they unlawfully discriminate against their employees on the basis of gender.

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Posted 7th January 2013 by David Jacobson in Workplace