Australian Regulatory Compliance Review

COAG 3 July 2008 communique

The 3rd meeting of COAG since the Rudd Government was elected reflects its commitment to drive reform.

The communique identifies the outcomes including:

• Leaders signed an agreement to end the fragmented and inconsistent approach to the protection of workers’ occupational health and safety. This will see the implementation of uniform legislation, complemented by consistent compliance and enforcement.

• COAG has also agreed to develop a national trade licensing system that will remove inconsistencies across State borders and allow for a much more mobile workforce. A new national system will be signed off by COAG in December 2008. COAG has agreed that the national system will initially apply to the following trades:

  • air conditioning and refrigeration mechanics occupations;
  • building occupations;
  • electrical occupations;
  • land transport occupations (passenger vehicle drivers, dangerous goods);
  • maritime occupations;
  • plumbing occupations; and
  • property agent occupations.
• COAG also agreed to a new Business Names Registration system
• A new Standard Business Reporting program was also agreed by COAG that will radically streamline the myriad of financial reporting requirements on businesses.
• the Commonwealth will take over responsibility for the regulation of trustee companies, mortgage broking, margin lending and non‑deposit lending institutions as well as remaining areas of consumer credit. The Business Regulation and Competition Working Group will examine this matter and report back to COAG in October 2008.
• COAG has agreed that the Commonwealth will assume responsibility for the making of permanent product bans and standards under the Trade Practices Act 1974. States will retain powers to issue interim product bans.
• A new electronic conveyancing system is to commence in 2010.

Other future reform priority areas were agreed on.

COAG will meet again in Perth on 2 October 2008.

Federal Discrimination Law Online

The Human Rights and Equal Opportunities Commission has released FDL Online, the online version of Federal Discrimination Law (hard copy).

National Employment Standards

As a first step in modernising Australia's awards the Government has released the new National Employment Standards (NES) (pdf).

The NES will come into effect on 1 January 2010.

The NES will apply to all employees in the Federal system regardless of industry, occupation or income.

The NES cover:

1. Maximum weekly hours of work
2. Request for flexible working arrangements
3. Parental leave and related entitlements
4. Annual leave
5. Personal/Carer’s leave and compassionate leave
6. Community service leave
7. Long service leave
8. Public holidays
9. Notice of termination and redundancy pay
10. Fair Work Information Statement

Reform of Australia’s consumer product safety regulatory arrangements

The Ministerial Council on Consumer Affairs (MCCA) has agreed to implement significant reform of Australia’s consumer product safety regulatory arrangements, for the benefit of consumers and businesses. (see the communique)

The reforms will:

• remove legal uncertainty for businesses operating across state borders by creating a single national law for product safety, including product bans, standards and recalls;
• enhance protection for consumers by allowing the Australian Competition and Consumer Commission and the State and Territory offices of fair trading to jointly enforce the national law; and
• reduce regulatory overlap by giving the Commonwealth sole responsibility for making permanent product bans and safety standards.  The States and Territories will retain the power to issue interim product bans, which would remain in effect for 60 days with a capacity for a 30 day extension if necessary.

It is anticipated that the revised regulatory arrangements  will be fully implemented by 2010.

Ministers also agreed in principle to:

• Support the development and implementation of a new national harmonised, generic consumer law to apply in all Australian jurisdictions, based on the consumer protection provisions of the Trade Practices Act 1974 (TPA), with appropriate amendments which recognize best practice in state legislation.
• Identify provisions in existing State/Territory fair trading laws which should be retained as part of a national generic consumer law and consider the need for new provisions which would enhance the TPA into the future. This would include consideration of provisions dealing with unfair contract terms and heightened enforcement powers, as identified by the Productivity Commission and provisions on naming and shaming as discussed by the States and Territories.
• reform the scheme of mandatory comparison rates in the Consumer Credit Code. There was in principle agreement to repeal the requirement to provide consumers with “schedules” of comparison rates, while the format and calculation of comparison rates in credit advertisements will be substantially revised. The Review will be released publicly.
• the Commonwealth Government initiate a review of the implied terms/statutory warranty regime in the Trade Practices Act 1974 and state and territory fair trading/goods legislation with the aim of developing clear codified law that can be applied nationally.

Legislation to remove same-sex discrimination

The Attorney-General Robert McClelland has announced that the government will introduce legislation to remove same-sex discrimination from a wide range of Commonwealth laws .

This reform follows the 2007 report of HREOC, Same-Sex: Same Entitlements, which focussed on financial and work-related legislation.  On coming to office, the Rudd Government commissioned an audit of Commonwealth laws, which identified other areas of discrimination.

Areas where discrimination will be removed include tax, superannuation, social security, health, aged care, veterans’ entitlements, workers’ compensation, employment entitlements, and other areas of Commonwealth administration.

The Rudd Government will begin introducing legislation in the Winter Sittings of Parliament. Most reforms will commence soon after the legislation is passed. In some areas (such as social security, tax and veterans’ affairs), the reforms will be phased-in to allow time for couples to adjust their finances, and for administrative arrangements to be implemented. All of the changes are expected to be implemented by mid-2009.

The changes will not alter marriage laws.

Workplace Relations Act

An updated consolidated Workplace Relations Act incorporating the changes made by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 is available here.

Discrimination law update

The Human Rights and Equal  Opportunity Commission's Human Rights Law Bulletin gives summaries of recent discrimination law developments.

Workplace Relations Amendment (Transition to Forward with Fairness) Act passed

The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was passed by Parliament on 19 March. Date of Assent: 20 March 2008. (consolidated Workplace Relations Act  available here).

The Senate Education, Employment and Workplace Relations Committee delivered its report on the Bill on 17 March.

The Act, once it receives Assent (possibly on 27 March), will prohibit new Australian Workplace Agreements.

Any Workplace Agreements in force as at 1 December 2007 can be replaced by Individual Transitional Employment Agreements which will be effective until 1 January 2010.

Employers can continue to make collective agreements with employees provided they satisfy the "no disadvantage" test.

The process of modernising awards will commence (although there is doubt about the length of time this will take).

Pattern bargaining will be outlawed.

What will the Act not change?

The law dealing with unfair dismissals will not change until 1 January 2010.

The Act will not change anti-strike laws.

The Act will not change the right of employees who earn more than $100,000 to make individual common law agreements.

Pay equity for women will not be covered.

Developing HR Policies

I gave a presentation on HR policies at a seminar in Sydney last week.

Essentially the talk was a case study on the Full Court of the Federal Court decision In Goldman Sachs JBWere Services Pty Limited v Nikolich [2007] FCAFC 120 which upheld the original decision that Goldman Sachs J B Were Services Pty Ltd pay $515,869 in damages to a former employee, Peter Nikolich, for breach of contract as a result of Goldman Sachs not complying with certain of its policies.

The case prompted interesting debate about the purpose of HR policies, whether they are intended to be contractual, whether they are binding on employers as well as employees and how they are created, monitored and managed.

In Nikolich's case, it appeared that Goldman Sachs' 119 page policy document had developed over many years (and a merger with JBWere) without a clear understanding of its role in the organisation's policy framework.