Final Report on Privacy Act

The Australian Law Reform Commission (ALRC) has released its final report into the Privacy Act 1988. Background information on the inquiry, including the 3 volume final (2700 page) report can be found here

Among the 295 recommendations, of particular concern to business are the following:

1. Repealing the existing small business exemption which currently applies to business with an annual turnover of $3 million (Chapter 39, Volume 2, p.1315).
2. Repealing the existing employee records exemption (Chapter 40, Volume 3, p.1363).
3. Creating a new statutory cause of action for invasion of privacy (Chapter 74, Volume 3, p.2533).
4. Greater enforcement powers for the Privacy Commission, including the ability to issue compliance notices, and creating civil offences for “serious or repeated interference with the privacy of an individual” (Chapter 50, Volume 2, p.1649).

The Government will now consider the ALRC’s recommendations, including its formal response, which is expected to take some time, given the number of proposed changes detailed in the report.

NRA has emphasised the importance of retaining both the employee records and small business exemptions and urged the Government to reject any recommendations which increases the regulatory burden on business.

Wage Growth

The June Quarter 2008 Labour Price Index shows that the trend annual rate in growth in wages is 4.1 per cent. This is down slightly from the 4.2 per cent recorded in the March quarter. The annual increase remains at levels consistent with growth seen since June 2005.

Private sector wages grew at 4.3 per cent annually, in trend terms, and 1.1 per cent over the quarter. Public sector wages grew at 3.8 per cent annually, in trend terms and 0.9 per cent over the quarter.

WA Government Dilutes its Position on Seven Day Trading

The WA Labor Party has pledged to extend retail trading hours if it wins the state election in Western Australia on September 6, 2008.

Under a policy released last week changes proposed are:

• The creation of three additional shopping districts (Joondalup, Armadale and Midland) where shops would be able to trade from 11am to 5pm on Sundays and on most public holidays;
• The exemption of ‘domestic goods shops’ (i.e. shops selling ‘furniture, white goods and major domestic electrical goods’) from the prohibition on Sunday trading; and
• The extension of trading hours midweek from 6pm to 7pm

This is a substantial shift in position for the WA Government which had previously stated that it favoured the deregulation of trading hours. The new position is not supported by the retail sector generally because of its discriminatory characteristics and its failure to bring WA trading hours arrangements into line with other states.

Review of Anti-Discrimination Laws

Employers are subject to legal obligations from various State/Territory and Federal anti-discrimination laws. The overlap between Federal and State/Territory laws can  give potential litigants choice about the jurisdiction that offers them the best chance of success in any action against an employer.   Not only that, employers can also find themselves subject to ‘double jeopardy’ due to the interaction of anti-discrimination laws and other legal obligations.

Employers are vicariously liable for the acts of their employees in various circumstances.  Many court decisions have considered the steps required to be taken by employers to meet their obligations in relation to vicarious liability.  Courts have generally required a high standard if an employer is not to be found liable for an act of discrimination or harassment by an employee.

Developments in anti-discrimination laws at the Federal level:

Several reviews of anti-discrimination law are occurring now or are foreshadowed.

They include:

1. The Productivity Commission’s review into paid parental leave: while not directly examining anti-discrimination measures, this inquiry and the conclusions reached in it have the potential to influence governments and regulators in considering what obligations are appropriate to place on employers, particularly in relation to balancing work with family responsibilities.
2. Standing Committee of Attorney-Generals (SCAG): SCAG advised on 28 March 2008 that a working group would be formed to examine harmonisation of State/Territory and Federal anti-discrimination laws.
3. The Senate Legal and Constitutional Affairs Committee’s inquiry into the effectiveness of the Sex Discrimination Act:  this is a very broad review which is examining the effectiveness of the SDA in terms of both eliminating discrimination and harassment. 

State/Territory Developments:

Numerous developments at the State/Territory level are also changing the anti discrimination framework within which employers operate.  The developments include:  

1. Victoria - Family Responsibilities Act 2007: this Act amends the Victorian Equal Opportunity Act 1995 by placing new obligations on employers to accommodate the responsibilities of an employee (or prospective employee) as a parent or carer.   These appear to be extremely broad obligations that do not utilise existing methods of determining whether discriminatory conduct has occurred.  They are much closer in nature to the ‘general duties’ that employers bear under OHS law.  The new obligations commence from 1 September 2008.
2. Victoria – new attributes for discrimination (employee entitlements): an amendment to the Equal Opportunity Act 1995 makes it unlawful to discriminate against an employee who makes enquiries or seeks information about their legal entitlements (e.g. pay).  This also overlaps with existing protections that are contained in the Workplace Relations Act 1996.
3. WA – review of Equal Opportunity Act 1984: this substantial review has suggested, inter alia, that additional grounds of discrimination be added such as breastfeeding, bullying, place of residence, potential pregnancy, trade union membership or activity, irrelevant criminal record, profession, gender identity and physical features.
4. Queensland- Justice and Other Legislation Amendment Act 2007: this amendment to the Anti-Discrimination Act 1991 gives the Queensland Anti-Discrimination Commission jurisdiction to hear complaints in relation to trade union membership/activity (overlapping freedom of association provisions in the Workplace Relations Act 1996).

July 2008 Labour Force Data (Seasonally Adjusted Data – Monthly Change)

The data shows that the unemployment rate remained steady at 4.3%. The male unemployment rate decreased by 0.1 percentage point to 3.9%, and the female unemployment rate increased by 0.2 percentage points to 4.8%. The participation rate remained steady at 65.3%.

For the year ending July 2008 employment increased by 2.4% while unemployment also grew at the same rate. The unemployment rate remained unaltered at 4.3%

Cash Economy Taskforce

A Cash Economy Task Force report has found the new tax system is impacting significantly on the cash economy, producing a more robust tax system that is harder to evade.

The report states:

"The design features of the reformed tax system are working together to produce a more robust tax system that is harder to evade…The Task Force sees strong signs that these measures are impacting significantly on the cash economy."

The report lists the following indicators of the positive impact of the new tax system:

• More than $135 million has been withheld from businesses that did not quote a valid Australian Business Number (ABN) when supplying goods or services.
• More businesses than expected have registered for an ABN, with tens of thousands of businesses previously outside the tax system now drawn into the tax net. The Tax Office has already raised about $50 million in backdated taxes.
• Revenue outcomes are consistent with the expected compliance dividend from the new tax system to June 2003 of $2.6 billion being achieved.
• A survey of small business and public practice Certified Practising Accountants found 81% of CPAs considered their clients' bookkeeping procedures had improved under the new tax system and 68 per cent saw improvement in invoicing procedures.

Chemicals and Plastics Regulation

The Productivity Commission has released a report into Chemicals and Plastics Regulation. The Key points in the report include:

• Chemicals and plastics contribute to our wellbeing, but some can pose substantial risks to health and the environment. Government intervention to manage risks is warranted where benefits materially exceed costs.
• Chemicals regulations are generally grafted onto (differing) state and territory Acts that deal with public health, workplace safety, transport safety, environment protection and national security.
• Current regimes are broadly effective in managing risks to health and safety, but are less effective in managing risks to the environment and national security. Efficiency can be improved through national uniformity in most areas.  

The Commission proposes building a governance framework that enhances national uniformity by addressing failures at four levels.

Level 1 - policy development and regime oversight.

Level 2 - assessment of chemical hazards and risks.

Level 3 - risk management standards setting. 

Level 4 - administration and enforcement. Generally jurisdiction specific:

• all standards should be adopted in a uniform or nationally consistent manner by administering agencies;
• control of use of agvet chemicals should be consolidated under the APVMA but delivered through service level agreements by the states and territories.

The full report can be downloaded from here

Temporary Residents Superannuation

The federal government has announced it will introduce new measures at the end of 2008. The press release states:

“Unlike the initial measure, employers will now be able to make their Superannuation Guarantee payments for temporary resident employees into funds in the same way as for any other employee – another red-tape reduction. The Government will use the existing unclaimed superannuation arrangements to transfer the account balance of temporary residents six months after they depart Australia and no longer hold a visa, if the person has not claimed their super on departure.”

The government states that the new arrangements will:

1. Significantly reduce the compliance costs for the industry.
2. Allow for the insurance cover of temporary residents as they will continue to be fund members while they reside in Australia.
3. Best address the lost member issue.
4. Provide the same superannuation payment arrangements to all employees in a workplace.
5. Allow for the full payment of superannuation to all former temporary residents at any time following their departure from Australia.

WA Draft Code on Machinery and Plant Guarding

The Commission for Occupational Safety and Health is seeking public comment on a draft code of practice for safeguarding machinery and plant. According to WorkSafe WA, the draft code of the practice aims to help workplaces meet their legal obligation to provide and maintain a safe working environment. The period for public comment closes on 10 October 2008.

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