The Protecting Vulnerable Workers Bill has become law: what your business needs to know (and do)

September, 2017

By Lisa Anaf, Partner and Diana Diaz, Senior Associate 

After some tweaks in the Senate, the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (the Bill) was passed.

Now that the Bill is law, we have summarised some of the key changes to the Fair Work Act 2009, along with some practical steps that you and your business can take to ensure you’re ready for the changes.

What will change?

The Fair Work Act 2009 (the Act) has always had ‘accessorial liability’ provisions that make persons who are involved in contraventions of the Act liable as if they had contravened the Act themselves.  In recent years the Fair Work Ombudsman has used these provisions to go after a wide range of persons, including HR Managers, Directors, franchisor and group entities, and external accountants.

Accessorial liability provisions will still be in the Act after the changes in the Bill become law.

What the Bill does is introduce the concept of ‘serious contraventions’ and make it possible for franchisors and holding companies to be held responsible for the ‘serious contraventions’ of their franchisees and subsidiaries.

Some of the key aspects of the Bill are:

What businesses should do to prepare for the changes

The penalties for employers who commit ‘serious contraventions’ will be set at a level that not only makes the contraventions uncommercial, but they may also put the ongoing viability of the business at risk.  It has therefore never been more important for employers, legal counsel, HR Managers and others involved in running the workplace aspects of a business to ensure that their business is meeting its minimum legal obligations to employees.

Practical steps that employers can take include regular audits of pay, conditions and record-keeping obligations.  Audits are particularly important in industries that engage vulnerable and/or low-paid employees.

The situation for franchisors and holding companies is somewhat more complicated and may depend on what knowledge they had about the conduct of the franchisee / subsidiary business and what arrangements they had in place with them.  However what is clear is that franchisors and holding companies will not be able to turn a blind eye to workplace breaches in their network.

Franchisors and holding companies will have the opportunity of a reprieve under the Bill – but only if they can show that they took ‘reasonable steps’ to prevent a contravention.  When a court determines whether ‘reasonable steps’ were taken they may consider things such as:

Whatever your specific situation, Mills Oakley can assist you in setting up your own internal audit process so that you can be confident that you have taken the reasonable steps necessary to protect your business and brand,

Contact Mills Oakley

For further advice or general assistance please don’t hesitate to contact:

Lisa Anaf
Lisa Anaf | Partner
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

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