Sarina L Cowle & Associates

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New Victorian OHS regulations dealing with psychosocial hazards

The Victorian government intends to make employers more accountable for the mental health of their staff. These amendments relate to what is termed "psychosocial hazards" and will be included in the Occupational Health and Safety Regulations 2017 (Vic).

'Psychosocial hazards' means any factor in the design, systems, management, or carrying out of work which may cause an employee to experience a negative psychological response that creates a risk to health and safety. The definition also extends to personal or work-related interactions. It will include bullying, s*xual harassment, aggression or violence, exposure to traumatic events or content, low or high job demands, lack of support or organisational justice, role clarity, poor environmental conditions including remote or isolated work, poor organisation and change management, low recognition and reward, and poor workplace relationships.

Employers need to prepare for the above as it is expected that the changes will come into effect in July 2022.

New provisions for the prevention of s*xual harassment and bullying in the workplace have commenced.
Part 6-4B of the Fair Work Act 2009 (Cth) now provides that workers can apply to the Fair Work Commission for orders to stop s*xual harassment as well as workplace bullying. To be eligible to make an application a worker must be employed in a constitutionally-covered business.
There is no time limit for making an application for an order to stop bullying or s*xual harassment at work. Section 789FF of the Fair Work Act 2009 provides that for the Fair Work Commission to be able to make an order there needs to be a risk that the applicant will continue to be bullied or s*xually harassed at work. If the worker no longer has a connection to the workplace, an order cannot be made as there is no future risk of the relevant behaviour occurring.
‘S*xually harass’, for these purposes, has the same meaning as in s 28A of the S*x Discrimination Act 1984 (Cth).
Examples of s*xual harassment include:
• inappropriate behaviour including staring, leering, loitering or unwelcome touching;
• suggestive comments, jokes or gestures based on s*x or a person’s private life or body;
• communicating s*xually explicit material in person or electronically.

All the prescribed forms are available in the Workplace bullying and s*xual harassment folder on the matter plan in the By Lawyers Employment Law publication. The commentary has also been updated accordingly.

RE-OPENING OF BUSINESS IN VICTORIA

To support business owners to reopen, the Business Stakeholder Pack has been developed by the Department of Jobs, Precincts and Regions. This stakeholder pack incorporates customisable content and downloadable artwork including:
• posters
• support guides
• social media content
• suggested website and newsletter content
• booking confirmation email and SMS text for businesses.

https://www.coronavirus.vic.gov.au/signs-posters-and-templates

Signs, posters and templates for your workplace | Coronavirus Victoria A new set of posters and other assets to support your COVIDSafe reopening.

Premier Daniel Andrews jas announced that all workers in Melbourne and regional Victoria on the Authorised Workers List must have their first COVID-19 vaccination dose by 15 October to continue working. A ll Authorised Workers need to be fully vaccinated by 26 November.

NEW DOMAIN NAMESPACE

auDA has announced that a new domain namespace will become available on 24 March 2022 for .au direct. Businesses will be able to register their domain name followed by .au instead of .com.au

Holders of a .com.au domain name will be able to claim priority from 24 March 2022 for six months.

Employees Choice of Super Funds

From 1 November 2021, employers will need to vary their procedure to comply with the choice of superannuation fund for their employee. Penalties may apply if the choice requirements are not met.
Curently when taking on new employees, employers can add them to their default superannuation fund if the employee has not chosen a superannuation fund. For any new employees starting from 1 November 2021, employers will be required to contact the Australian Taxation Office (ATO) if the employee has not chosen a fund and check whether the employee has a "stapled fund". If the employee has a stapled fund, the employer will need to make contributions to that fund.

Commercial Landlords can claim grants.

Eligible commercial landlords that waive rent for their tenants between 28 July 2021 and 15 January 2022 can apply for grants of up to $6,000 per tenancy. In cases of acute hardship, small landlords may be eligible for grants of up to $10,000 per tenancy.

The Fair Work Ombudsman has released a statement about Award wage increases applying from 1st July.

You can use the Pay and Conditions Tool on their website to check that you are compliant.

It will help you to calculate base pay rates and other entitlements, including:
• penalties (e.g weekend, early or late shifts and public holidays)
• overtime
• allowances
• leave balances
• notice period and redundancy pay.

Think you might have underpaid an employee? Check the tool or contact our office.

In response to the uncertainty created by the WorkPac v Rossato decision regarding leave entitlements and potential 'double dipping' by long-term casuals , the Fair Work Act now includes a statutory definition of "casual employee".
Under the new statutory definition, a person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work. In essence, whether a person is regarded as a casual employee is assessed at the time they are offered (and accept) employment.
Once employed as a casual, an employee will continue to be a casual employee until they stop being employed by the employer or they become a permanent employee through:
• casual conversion, or
• being offered and accepting full-time or part-time
employment.
The new definition applies to casual employment offers made before, on or after the new laws came into effect on 27 March 2021.

The Fair Work Act 2009 (Cth) (FW Act) was recently amended in relation to casual employees - these amendments came into effect on 27 March 2021. They require employers to engage in casual conversion to permanent (full-time or part-time) employment and to ensure casual employment contracts are consistent with the new law.

By 27 September 2021 employers of more than 15 employees must:
a. assess whether any existing casuals employed before 27 March 2021 are eligible to convert to permanent employment.
make a written offer to the employee of permanent employment or explain why such an offer cannot be made.
b. as soon as possible after 27 September 2021, employers of more than 15 employees must provide casual employees with a copy of the Casual Employment Information Statement.
c. employers should be taking steps now to review and update their engagement letters and template employment contracts to ensure these comply with the obligations.

Small Business COVID Hardship Fund

An allocation of $41 million will boost the Small Business COVID Hardship Fund to $180 million, with grants of $10,000 available to small- and medium-sized businesses across the state.

The fund opens for applications today through the Business Victoria website and will help up to 18,000 businesses that have been ineligible for business support programs and have experienced a reduction in revenue of at least 70 per cent.

Businesses that are legally allowed to operate but are restricted in their ability to generate revenue – such as a food store located at a shopping centre or a manufacturer supplying goods for closed venues – will be among those that that could be eligible.

Businesses that have lost custom due to restrictions affecting foot traffic – such as pharmacists located in the CBD – could also be eligible.

Business Costs Assistance Program

More than 95,000 businesses in metropolitan Melbourne will automatically receive payments of $2,800, with grants scheduled to be paid within seven business days.

This new $271 million Business Costs Assistance Program assistance will allow businesses across multiple sectors to continue paying overheads and other costs despite significant impacts on revenue.

Victorians unable to pay rent between March 2020 and 2021 due to the COVID-19 pandemic cannot be forced to repay what they owe until after October 25. The Victorian Civil and Administrative Tribunal found it was lawful to evict a person for unpaid rent accrued during the state’s moratorium on evictions after the suspension ended on March 28.

Any parties having problems with covid related rent relief can contact us for assistance.

Changes to casual employment - employers have to give every new casual employee a Casual Employment Information Statement. Existing casual employees must also get the statement. Ask us for a link to the statement or search the Fair Work Ombudsman website

The 2.5% increase to award wages announced by the Fair Work Commission (FWC) starts today for most awards. You can now find these new rates in the FWC Pay Calculator and Pay guides.

The FWC has also updated some terms and conditions in several awards, including:
• changes to spread of hours in some awards
• Health Services Award coverage changes.

The ACCC has been successful in a case against Quantum in which it was alleged that Quantum made false or misleading representations and engaged in systemic unconscionable conduct.

This conduct involved investors to terminate agreements with their existing property managers and engage a property manager approved by Quantum but did not tell them that Quantum had commercial arrangements with the property managers it recommended.

The ACCC said

“The Full Court has made clear that for conduct to be held to be ‘unconscionable’ under the Australian Consumer Law and other similar laws, it is not necessary to establish that the business engaging in the conduct has exploited some disadvantage or vulnerability on the part of the consumers or small businesses affected, although this may often be the case,” Mr Sims said.

“The Full Court has confirmed that the correct approach to assessing statutory unconscionability is to focus on the conduct, and assess whether it is a sufficient departure from the norms of acceptable commercial behaviour as to be against conscience or to offend conscience.

“Because this decision makes it clear that it is not necessary to demonstrate exploitation of vulnerability, it extends the reach of the statutory unconscionable conduct prohibition so that it will protect more consumers and small businesses against egregious conduct by corporations.”

This decision is good for small business!

Casual Employees

In circumstances where an employee has been incorrectly classified as a casual, rather than as a full-time or part-time employee, employers will be able to offset any entitlements against a casual employee who has received the 25% casual loading .
Casual employees will now rights in relation to conversion from casual employment to permanent conversion after 12 months of employment.
Employers are required to provide their casual employees with a Casual Employment Information Statement, which will be prepared by the Fair Work Ombudsman.

The Government in its Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 ("Bill") has been passed, in amended form, but has addressed the continuing ambiguity surrounding who a casual employee and who is not. This includes casual entitlements.

The Act inserts into the Fair Work Act a definition of casual employment and prevents employers having to pay an employee twice for the same entitlement

It also legislated for the ability for regular casuals to become permanent after 12 months of employment

Employers are advised to consider their casual workforce.

The federal government has backed down on key elements of its industrial relations bill to ensure its passage through the Senate.

The IR Omnibus Bill was introduced to Parliament in December last year and introduced provisions regarding casual work, wage theft, award simplification, enterprise bargaining and greenfields agreements.

The final bill passed the Senate by 35 votes to 33; however, following votes on a range of amendments introduced by the Labor opposition and the crossbench, only the provisions around casual work passed the Senate in the end.

Under the reforms, employers will work with a new definition of casual employment and will have less liability for misclassifying casual workers. On the other hand, casual employees will have more rights to ask for permanent work from their employers.

Prime Minister Scott Morrison pinned the blame on Labor for the changes to the bill.

“The Labor Party opposed all of those measures, all those measures, including those they now pretend to support. You can’t have an each-way bet on this,” Mr Morrison said.

Earlier, the Australian Council of Trade Unions and the Council of Small Business Organisations Australia also reached an agreement that would allow casual workers to continue making backpay claims for permanent entitlements.

Australian Chamber of Commerce and Industry chief executive Jenny Lambert opposed the amendments proposed by the ACTU and COSBOA, calling it a “one-sided proposal”.

“The deal would continue to expose small business owners to double dipping claims by casuals of up to $39 billion and fails to deliver small businesses the certainty they need,” Ms Lambert said.

“The proposed amendments reflect a naivety as to the implications on business.”

The ACTU/COSBOA proposal eventually fell through, but not without a rift forming between members of key crossbench party the Centre Alliance.

The Centre Alliance’s lone lower house member, Rebekha Sharkie, said in a statement that the party agreed to support both stronger laws against wage theft and the casual changes as a package, subject to amendments crafted by the ACTU and COSBOA.

That put Ms Sharkie at odds with her party colleague senator Stirling Griff, who voted with the government and One Nation in rejecting the proposal.

“I cannot support a package that doesn’t include wage theft provisions for workers,” Ms Sharkie said.

“Where this landed is totally unacceptable. The government’s decision not to support an agreement by COSBOA and the unions was completely wrong, so I categorically will not be supporting an amended bill in my chamber.”

Australian Council of Trade Unions secretary Sally McManus said working people have worked tirelessly to defeat the worst aspects of the bill.

“The decision to remove the elements of this bill which would have increased penalties for employers committing wage theft and made it easier for workers to claim stolen wages back is a spiteful act by a government which refuses to act in the interests of working people,” Ms McManus said.

Unfair Dismissal Compensation reduction for employee's conduct

Section 392(3) of the Fair Work Act 2009 (Cth) provides that, if the Fair Work Commission (FWC) is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount of compensation it would otherwise order by an appropriate amount on account of the misconduct.

In a recent case, the Full Bench reduced the award of compensation from 16 weeks to 4 weeks, which included a 20% deduction for the Employee's misconduct. The compensation was therefore reduced from $35,000 at first instance to $7,384.62 on appeal.

Contact us if you have any workplace issues.

How Much should you invest in Intellectual Property Protection and When Should You do It?

As your business grows, you will need to or want to protect your IP to prevent it being used for commercial purposes by others, and importantly competitors.

This is best done first when you start your business. However budgetary constraints are often high at start up.

Protecting your IP early on can also help you with:

stopping your competitors from using your IP;
growing a competitive advantage; and
attracting investors to your business.

Patents

A patent protects a new invention. Generally, once you have publicly disclosed your invention it may no longer be eligible for patent protection; or you may need to rely on grace periods.
Therefore, if you have created a product or service that is new and inventive, you must keep this confidential until you have applied for patent protection.

If you need to reveal your invention for business purposes, you may lose the benefit of it

You may also consider filing a provisional patent application before launching your invention. This is often the first step for many businesses. Once you file a provisional patent application, you will be given a priority date. This is the date from which your application is given preference over subsequent inventions.

A provisional patent application is only valid for 12 months. However, it can act as a placeholder for your full patent application and allow you to disclose and use your invention in the meantime.

Designs

A design protects the visual appearance of a product that is distinctive and unique. Similar to patents, you must register and protect a design before you go to market and start advertising your product.

This is because once your design is disclosed and in the public domain, it is no longer considered distinctive and therefore cannot be registered. There are no grace periods for designs.

Trade Marks

A trade mark protects elements of your brand, such as your business name and logo. You can apply for a trade mark at any time and there is no time limit. However, it is recommended to apply early on to secure your priority date and reduce the risk of someone applying for a similar trade mark before you.

Contact us to get further information about Intellectual Property

.au Domain Administration Limited (the administrator of .au domain names). It is a new set of rules for those who wish to hold, or continue to hold, a .au domain name and the new rules are effective from 12th April, 2021

One of these changes may have implications in particular for foreign persons or entities wishing to hold a .com.au or .net.au domain name.

Under the previous rules, a person or entity must be "Australian" (as defined by certain criteria set out in the rules) to be eligible to hold a .au domain name. This requirement would be satisfied for .com.au and .net.au domain names if the domain name was an "exact match, abbreviation or acronym" of a registered or pending Australian trade mark held by that person or entity.

Reliance on an Australian trade mark to satisfy the eligibility requirements under the previous rules has been a useful option for foreign persons or entities that cannot meet other available criteria satisfying the "Australian" requirement.

Under the new rules, a person or entity who wishes to rely on an Australian trade mark to support its eligibility to hold a .com.au or .net.au domain name can now only do so if the domain name is an exact match of its Australian trade mark.

The rule changes may be significant for any person relying on their Australian trade mark to support eligibility to hold their .com.au or .net .au domain name. This is especially the case for foreign persons or entities that may have no other option available to support their .com.au or .net.au domain name registrations. Importantly, domain name rights could be lost if the domain name is not an exact match of their Australian trade mark.