Updates to Victorian long service leave and labour hire legislation

Daniel McNamara, Graduate Associate and Rocio Paradela, Graduate Associate

Businesses that operate in Victoria need to be mindful of recent legislative changes in this jurisdiction. Two areas subject to change in Victoria are changes to long service leave entitlements and the new labour hire licensing framework.

Long Service Leave

The Victorian Parliament has passed new long service leave legislation, replacing the existing Long Service Leave Act 1992 (Vic) (the “LSL Act“). The provisions are likely to become operational later this year.

What are some of the major changes?

  • Employees will be entitled to take long service leave after completing seven years’ continuous employment instead of 10 years.
  • Both paid and unpaid parental leave will count as service (other than in the case of a casual or seasonal worker).
  • An employee can request to take long service leave for a minimum period of one day, although an employer may refuse such a request if the employer has reasonable business grounds to do so.
  • Continuity of service will not be broken where a casual or seasonal employee:
    • takes up to two years’ parental leave (whether paid or unpaid);
    • obtains the employer’s agreement in advance to an absence;
    • has a break which is impacted by seasonal factors; or
    • has been engaged on a regular and systematic basis and has a reasonable expectation of being re-engaged.

In addition, if an employee’s working hours have changed during the two years immediately before taking long service leave, the employee’s normal weekly number of hours is the greater of: the average weekly hours worked over the past 52 weeks (one year), 260 weeks (five years) or the last period of continuous employment.

Criminal liability has been established with respect to breaches of a number of obligations under the LSL Act. This includes where an employer takes adverse action against an employee because the employee is entitled to long service leave or other entitlements under the LSL Act.

The LSL Act also provides for accessorial liability of certain officeholders of a corporation where they are shown to have been knowingly involved in the commission of an offence by the corporate entity.

Labour Hire Licensing

Victoria is continuing the trend of other states, such as South Australia and Queensland, with the Labour Hire Licensing Act 2018 (Vic) (the “Licensing Act”) receiving Royal Assent on 26 June 2018.

What are some of the major changes?

Similar to labour hire licensing legislation in other Australian states, the core features of the Licensing Act include:

  • the mandatory licensing of labour hire organisations operating within Victoria;
  • the requirement of labour hire licensing organisations to meet a “fit and proper person” test to ensure that minimum standards are met;
  • penalties imposed on non-compliant labour hire organisations and on individuals/organisations engaging with non-compliant labour hire organisations; and
  • the establishment of a Labour Hire Licensing Authority (based in Bendigo) and the Office of the Labour Hire Licensing Commissioner.

A Federal labour hire system?

The Federal Labor party has promised, as an election pledge, to introduce a uniform federal scheme that would guarantee the same pay and conditions for labour hire workers as award-covered employees throughout Australia. In addition, under this model, labour hire organisations would need to demonstrate compliance with relevant workplace legislation (including the Fair Work Act 2009 (Cth) and tax, superannuation, WHS and immigration laws) in order to maintain a license.

If you require any advice as to how these legislative changes may affect you or your organisation, please feel free contact People + Culture Strategies on (02) 8094 3100.

Rejecting the “just workplace banter” claim: the broader influence of #MeToo

Daniel McNamara, Graduate Associate

A recent Fair Work Commission (“the Commission”) decision has cited the #MeToo movement, encouraging victims of inappropriate workplace conduct to speak out against their perpetrators, in a situation that involved accusations of racist comments.

In relation to the identified misconduct, the Commission drew an analogy to the #MeToo movement, noting that:

[t]he attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe that it was harmful, and that no one had complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the “#MeToo movement.

Factual Background

  • The Applicant, an employee of StarTrack Express (a subsidiary of Australia Post) was dismissed after making a number of derogatory and racist remarks, including phrases such as “row your canoe back home you f***ing black c**t”, towards co-workers.
  • The Applicant cited the comments as “commonplace and part of general workplace banter” and that he did not consider the remarks to be intended as offensive, but rather “to entertain”.
  • The Applicant alleged that his conduct did not amount to serious misconduct, that the decision to terminate his employment by the Respondent was excessive in light of the circumstances, and that he was not afforded procedural fairness throughout the investigation process.

The Outcome

The Commission praised the Respondent in conducting a “fair, thorough and balanced” investigation into the allegations, finding that the employer demonstrated procedural fairness at all stages of the investigation and that the Respondent had validly dismissed the Applicant.

The Commission noted that the Applicant failed to show any remorse, appearing “to be unable to appreciate that the racial components of his workplace “banter” and swearing was something that is separate and distinguishable from any robust language or verbal jousting that may be used as “part and parcel” of a “knockabout workplace”.

Key takeaways

  • The notion that derogatory and/or racist remarks are merely a form of commonplace workplace banter is clearly rejected in this decision.
  • The decision also shows that the subjective view of the perpetrator that the remarks were not harmful, that no one had complained, and were merely “to entertain” carry very little weight. This aligns with the approach adopted in relation to recent sexual harassment claims.
  • It is a reminder that any investigation into allegations of inappropriate workplace behaviour should be conducted in a manner that is “fair, thorough and balanced”.