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Workplace & Employment
Modern Slavery Reporting Requirements For Australian Subsidiaries and Foreign Entities in Australia
As we approach mid-year, many Australian subsidiaries of multinational corporations and foreign entities registered in Australia should be preparing their modern slavery statements. This article examines the reporting obligations under Australian laws, including the critical issue of revenue consolidation that often catches foreign-owned entities by surprise. The Reporting ObligationAustralia’s Modern Slavery Act 2018 (Cth) (the “Act”) requires entities to submit annual modern slavery statements if they meet the revenue threshold. The statement must be lodged within 6 months after the end of the reporting entity’s financial year. Who Must Report?The Act captures:• Australian entities with annual consolidated revenue of at least $100 million• Foreign entities carrying on business in Australia (e.g. Australian branch of overseas companies) with annual consolidated revenue of at least $100 millionThe legislation uses consolidated revenue worked out in accordance with the Australian accounting standards, meaning it may be necessary to look beyond the single legal entity and to the wider corporate group. The $100 Million Threshold: Consolidated RevenueThe $100 million threshold is based on consolidated revenue, not the Australian subsidiary’s standalone revenue. This is an often overlooked point when businesses determine whether they are under reporting obligations. This means multinational corporations with Australian operations and/or subsidiaries will need to take particular care and potentially apply the threshold test at both the parent entity level and the subsidiary level. By way of example:• a foreign company with an Australian subsidiary with local revenue of only $30 million may still have reporting obligations if it also carries on business in Australia apart from the subsidiary (e.g. through an Australian branch or otherwise) and has global revenue of $80 million (in addition to the Australian subsidiary’s revenue); • an Australian subsidiary with local revenue of only $30 million may still have reporting obligations if it controls other downstream foreign entities with overseas-sourced revenue of $80 million. This catches many Australian entities and branches off-guard, particularly those of Asia-Pacific, European, and North American parent companies operating substantial global operations. Mandatory Content RequirementsEach statement must address seven mandatory criteria:1. Identity of the reporting entity;2. Structure, operations and supply chains;3. Modern slavery risks in operations and supply chains;4. Actions taken to assess and address those risks, including due diligence and remediation processes;5. Effectiveness of actions taken;6. Consultation process with owned or controlled entities; and7. Any other relevant information. The Public RegisterAll statements are published on a public, searchable register maintained by the Attorney-General’s Department (https://modernslaveryregister.gov.au/). This creates reputational risk for non-compliance or inadequate disclosure.Further, where an entity fails to comply with its reporting obligations, the Minister has powers under the Act to request an explanation and remedial action. If the entity does not comply with this request, the Minister may publish the entity’s name and details on the public register, which may result in reputational damage. Enforcement Landscape: Penalties Are ComingThe current absence of penalties has created a false sense of security. This is about to change. The McMillan ReviewIn May 2023, Professor John McMillan AO completed a comprehensive statutory review of the Act’s first three years. His findings were stark: the Act had not "yet caused meaningful change for people living in conditions of modern slavery” and modern slavery statement reporting was "frequently deficient'.The review made 30 recommendations to strengthen the Act, with civil penalties as a central reform. The review recommended penalties for:• Failing to submit a modern slavery statement;• Knowingly providing false or misleading information in statements;• Non-compliance with Ministerial requests for remedial action.While specific penalty amounts were not recommended, the review referenced comparable regimes with penalties ranging from CAD $250,000 (Canada) to AUD $1.1 million (former NSW regime).The review also recommended lowering the reporting threshold from $100 million to $50 million in annual consolidated revenue, which would extend reporting obligations to a significantly wider group of entities. The Government has not adopted this recommendation at this stage, but entities with consolidated revenue approaching $100 million should monitor developments closely. Government ResponseIn December 2024, the Australian Government published its response. Importantly, the Government “agrees in principle” to introduce civil penalties for non-compliance, with stakeholder consultation to follow on the penalty framework design.Additionally, Chris Evans commenced as Australia’s first Anti-Slavery Commissioner on 2 December 2024, with a mandate to increase compliance, support businesses, and prepare updated guidance for reporting entities. The Commissioner is expected to have powers to publish lists of non-compliant entities and declare high-risk industries, regions and products.Although no implementation timeline has been announced, the direction of reform is clear – civil penalties are expected to be introduced, the Anti-Slavery Commissioner is now operational and may publish lists of non-compliant entities, and entities that have never reported despite meeting the threshold face potential exposure across multiple reporting periods, alongside potential “bluewashing” claims under section 18 of the Australian Consumer Law. Entities that continue to ignore their obligations risk creating permanent public records of non-compliance and exposure to penalties that may apply once the penalty regime commences. Practical Steps for ComplianceAustralian subsidiaries and branches of multinational corporations should:1. Assess the obligation immediately: determine whether consolidated revenue exceeds $100 million;2. Identify the reporting entity: determine whether the Australian subsidiary or parent company will report;3. Consider joint statements: a parent and one or more of its Australian subsidiaries may submit a joint statement provided that the consultation requirements under the Act are met;4. Map supply chains: identify modern slavery risks in operations and procurement;5. Document due diligence processes: collate evidence of risk assessment and remediation; and6. Prepare for disclosure: ensure statements can withstand public and regulatory scrutiny once published on the register. Assistance with ComplianceModern slavery reporting is not a box-ticking exercise. Statements become permanent public records, and with the reforms described above now imminent, inadequate disclosure carries reputational, regulatory, contractual and consumer law risks. Reporting entities – particularly those navigating revenue consolidation, supply chain risk, or cross-border group structures – should consider obtaining professional advice before lodging.H & H Lawyers has assisted many multinational corporations and their Australian subsidiaries and foreign branches with modern slavery compliance, including:• Revenue threshold assessments and obligation determination;• Statement preparation, review and lodgement;• Supply chain risk assessments across multiple jurisdictions;• Due diligence, process design and various internal documentation;• Coordination with overseas parent companies and group entities, supported by our bilingual capabilities; and• Remediation of past non-compliance.For many multinational corporations, their Australian subsidiary’s reporting obligation only becomes apparent when consolidated revenue is properly analysed. We encourage all subsidiaries and branches of multinational corporations to assess their position and achieve compliance before the penalty regime commences. The cost of doing so may well be modest compared with the reputational damage, penalty exposure and operational disruption of non-compliance. For assistance with modern slavery reporting obligations, please contact us. Disclaimer: This article is for general information purposes only and does not constitute legal advice. The information is current as at May 2026 but laws and regulations are subject to change. Modern slavery reporting obligations depend on your specific circumstances. You should seek professional legal advice before taking any action based on this article. Liability limited by a scheme approved under the Professional Standards Legislation.
Workplace & Employment
Closing Loopholes: The Right to Disconnect
On 26 February 2024, the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 (Cth) received Royal Assent, amending the Fair Work Act 2009 (Cth) (the Act).One of the changes enacted by this amendment is the introduction of “the right to disconnect” – the right for employees to not respond to work communications outside of ordinary work hours from 26 August 2024. 1. What is the Right to Disconnect? The right to disconnect is the employees’ right to refuse monitoring, reading, or responding to emails, telephone calls or any other kind of communication from their employer outside of work hours, except where such contact is reasonable. This applies to any contact from communications from a third party relating to work outside of work hours. The right to disconnect will become a protected right under the general protection regime in the Act, meaning that the employer is barred from taking any adverse action (e.g., disciplinary action, demotion or dismissal) against the employee for reasonably refusing work-related contact or attempted contact. This provides a broader avenue for employees to bring a claim against employers – in comparison to the unfair dismissal claim. However, this right to disconnect does not mean that employers are not allowed to contact their employees outside ordinary working hours – rather, while the employers may attempt contact with their employees, the employees have a right to refuse to consider any contact relating to their work. Small businesses exemptions Small businesses are exempt from the application of the right to disconnect until 26 August 2025, which gives them more time to prepare and adjust for any changes. Under the Act, you are a small business employer at a particular time if you employ less than 15 employees at that time. A casual employee is not counted unless the employee is a regular casual employee, and your associated entities (e.g. parent company or subsidiaries) are taken to be one entity. 2. What is a reasonable contact? The salient caveat to this new right is that employees cannot exercise their right to be disconnected where such contact is deemed reasonable and necessary. The new legislation provides the following factors that could be used to judge whether the contact is reasonable: 1. Nature and urgency of the reason for contact; 2. Method of contact and the level of disruption for the employee; 3. Degree of compensation for employees for the work outside their normal working hours; 4. Nature of employee’s role and level of responsibility; and 5. Employee’s personal circumstances. For instance, where contact is required under a law of the Commonwealth, State or Territory, the contact would be deemed to be a reasonable exception to the employees’ right to be disconnected. Also, the expectation of a managerial-level employee to respond to urgent emails will be higher than that of a low-level employee involved in clerkish duties. 3. Dispute over the Right to be Disconnect? As there are no case precedents to expand on the meaning of “reasonable contact”, many workplaces may face disputes over the application of this novel right. Where such a dispute occurs, employers and employees should primarily attempt to resolve the dispute at the workplace level through internal discussions. Nonetheless, if the dispute cannot be resolved internally, either party may apply to the Fair Work Commission to make a “Stop Order” that is presumed to operate similarly to the current anti-bullying order. The employee may order the employer to stop taking adverse actions, and the employer may also apply for a stop order to oblige the employee to stop unreasonably refusing to monitor, read or respond to contact or attempted contact from the employer. Currently, a breach of such a stop order may attract civil penalties of up to 60 penalty units (currently equivalent to $11,538.60) under the Act. 4. What does this mean for employers? Proper responsiveness to this new legislation will require appropriate adjustments to existing business policies. Employers should begin by considering how they may change existing work standards, practices and policies whilst also providing training to managers on this new change. We recommend that employers establish internal procedures for any after-hour communications, based on the specific role of each employee. Specifically, we propose employers to review their current employment contracts and job descriptions as well as employment handbooks to ensure no clauses expect the employees to work outside the normal working hours (depending on the nature of the role), and also consider providing internal training to all employees on this new right to disconnect. 5. Our thoughts While this right to disconnect may seem a little odd for many hard-working Australians, this right has existed from as early as 2016 in European countries, such as Spain and France. Since then, other countries around the globe, including Belgium, Portugal, India, Argentina, Chile, and Brazil, have implemented this right to disconnect to assist with growing occupational health issues that have arisen due to digital connection and growing work hours. We have seen successful implementation of this right to disconnect in other jurisdictions, overcoming prior concerns over workplace productivity and communication. Some practical recommendations for this right to be disconnected could include technical solutions like automatic forwarding of messages from inboxes of people on holiday or the use of a delayed sending option so people do not receive messages outside their working hours. Other humanistic approaches can be implemented by including information that the sender does not expect a reply on the same day, or by conducting firm-wide training on the new right, which some firms have already been doing for a long time before this right became a law. Please do not hesitate to contact us if you have any questions about this new law and how best to prepare your business and employees. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Workplace & Employment
Key changes to Australian employment law
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 received Royal Assent, amending the Fair Work Act 2009 (Cth). The key amendments to the Fair Work Act are as follows: 1. Casual Conversion – currently in effect Casual conversion is allowing casual employees to become employed on a permanent basis. It is available for an eligible casual employee, being one who: Has been employed for at least 12 months; Has worked regular pattern of hours during the last six months of employment; and Is able to continue working the regular pattern of hours as a full time or part time employee without significant changes. Employers must offer casual conversion within 21 days of an eligible employee’s 12 month work anniversary. This is an ongoing obligation, and employers must consider an employee’s eligibility each year to make the offer. If a casual employee requests casual conversion, employers must respond in writing by accepting or rejecting within 21 days. An employer must have reasonable grounds for rejecting a request, or not making a casual conversion offer. Employers must also provide casual employees with the ‘Casual Employment Information Statement’ in addition to the Fair Work Information Statement, at the commencement of employment. 2. Pay Secrecy Terms – currently in effect The Fair Work Act now gives employees the right to disclose their salary information. It also prohibits employers from entering into a contract (or other written agreement) with an employee which includes a term which prohibits an employee from disclosing their salary or other terms and conditions reasonably necessary to determine an employee’s salary. Any existing employment agreements which do include a pay secrecy term have no effect, and can no longer be enforced. 3. Prohibiting Workplace Sexual Harassment – effective 6 March 2023 The Fair Work Act will prohibit sexual harassment in connection with work. Employers will potentially be made liable for sexual harassment committed by an employee or agent in connection with work, unless they can prove they took all reasonable steps to prevent the sexual harassment. 4. Flexible Working Arrangements – effective 6 June 2023 The amendments allow pregnant employees and employees experiencing domestic violence to request flexible working arrangements. In addition to existing obligations on employers to provide reasons for refusing an employee’s request for flexible working arrangements, employers may only refuse a request for flexible work arrangements if they have: (a) Discussed the request with the employee;(b) Genuinely tried to reach an agreement with the employee about making changes; (c) Had regard to the consequences of refusal for the employee; and (d) The refusal is on reasonable business grounds. Employers must also set out the particular business ground that it relies on for refusing the request, and explain how those grounds apply to the request. The Fair Work Commission will now be able to hear and make orders about disputes regarding flexible workplace arrangement requests. 5. Fixed Term arrangements – effective 6 December 2023 The term of a fixed term employment contract must not exceed 2 years (including extensions). Fixed term contracts may not be extended more than once. Some fixed term contracts are excluded from this rule, e.g. those relating to casual employees, seasonal labour, specialised skill employment and high-income employees. From 6 December 2023, employers will need to give ‘Fixed Term Contract Information Statement’ prepared by the Fair Work Ombudsman. This has not yet been made available. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Workplace & Employment
High Court Clarifies Definition of Casual Employee
As one of the most significant decisions by the High Court in 2021, the High Court has determined the meaning of a casual employee in Workpac Pty Ltd v Rossato [2021] HCA 23. Mr Rossato was employed as a production worker by Workpac’s labour-hire company under a series of six contracts, or assignments, to perform work for one of Workpac’s clients. While Mr Rossato was required to work regular and full-time hours according to a fixed pattern of work, Workpac treated Mr Rossato as a casual employee, such that Mr Rossato was not paid the leave or public holiday entitlements under the Fair Work Act 2009 (Cth) (the Act) and the enterprise agreement. The Court confirmed that the question of whether a person is a casual employee is to be determined by considering the express terms of a written employment contract, and not on the basis of any subsequent conduct of either party. To this extent, the court held any such commitment to further work must be contained in an enforceable agreement to be recognised. The High Court held that a casual employee is an employee who has no “firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” and provides no reciprocal commitment to the employer. In considering the nature of the commitment, the court held that ‘the existence or otherwise of a “firm advanced commitment” must be for enforceable terms’, and should not be held to exist from expectations or understandings borne from the manner in which the parties have performed their agreement. The High Court held that a mere expectation of continuing employment on a regular and systematic basis is not sufficient for the purposes of the Act. Mr Rossato’s employment was expressly on an “assignment by assignment basis”. Mr Rossato was entitled to accept or reject any offer of an assignment, and at the completion of each assignment Workpac was under no obligation to offer further assignments. The High Court also held that it was not the role of the courts to “moderate a perceived unfairness resulting from a disparity in bargaining power between the parties”. In relation to the employment relationship, it should be noted that the High Court held in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 that: 1. while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute; 2. if the mutual undertakings are said to be implied in what has been agreed, they cannot be inconsistent with the express terms of the contract; and 3. if the mutual undertakings are to be inferred from the conduct, then they may take effect as contractual variations. This decision by the High Court in Workpac v Rossato is important for both employers and employees as it reinforces the importance of specifying the terms of the contract in writing, taking into account the key features of the High Court’s decision. It is also important that casual contract terms and employer’s policies are carefully reviewed to ensure that they do not create any unintentional implied mutual obligations or variations inferred from the conduct. It is also worth noting that a new provision of s 66B of the Act has been introduced which requires employers to offer casual employees to become permanent employees if they have been employed for 12 months and have worked regular and systematic patterns in the last six months. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
Workplace & Employment
Modern Slavery Reporting Requirements
In Australia, the Modern Slavery Act 2018 commenced operation on 1 January 2019, creating reporting obligations for certain entities. The term modern slavery is used to describe situations where coercion, threats or deception are used to exploit victims and undermine or deprive them of their freedom. It describes serious exploitation and not substandard working conditions or the underpayment of workers. The Australian government, in support of UN Guiding Principles, aims to combat modern slavery in the Australian community and in the global supply chains of Australian goods and services. Who needs to report? Entities that have: Consolidated revenue of at least $100 million for the relevant reporting period (a financial year), and which Are Australian identities, or Undertake business in Australia in that financial year What do I need to report? The mandatory criterion are: The reporting entity’s structure, operations and supply chains; Modern slavery risks in the reporting entity’s operations and supply chains (including those of subsidiary entities); Actions taken (including by subsidiary entities) to assess and address those modern slavery risks, including due diligence and remediation processes; How the reporting entity assesses the effectiveness of actions taken; and The process of consultation with subsidiary entities in preparing the modern slavery statement. When do I need to report by? Affected entities must report in respect of the first full reporting period following commencement and must report within 6 months of that period ending. For example, the reporting period for entities with a 30 June year end will be 1 July 2021 to 30 June 2022, with reporting due by 31 December 2022. Further information Further information and links to the online registers can be found here: https://www.homeaffairs.gov.au/criminal-justice/Pages/modern-slavery.aspx Please contact H & H Lawyers for further legal advice for submitting a modern slavery report. [Disclaimer] The contents posted are general legal information, not legal advice, and the author and publisher have no legal responsibility for the contents. Each post is based on the law that was in force at the time of writing. Please consult a lawyer directly for accurate legal advice.
Workplace & Employment
Casual vs Permanent
On 20 May 2020, the Full Court of the Federal Court of Australia handed down its decision in WorkPac Pty Ltd v Rossato. The case centres around labour hire firm WorkPac, which employed Robert Rossato as a mine worker at two Queensland mines owned by Glencore. Mr Rossato was a casual employee, on rolling contracts, over a three-and-a-half-year period. As a casual, he was paid an extra 25 percent loading on top of his wage — which is the usual practice to make up for not being given benefits such as annual leave. The Full Federal Court dismissed WorkPac’s application for a declaration that Mr Rossato was a casual employee, instead finding that Mr Rossato was a permanent employee. It was found that because Mr Rossato's employment was "regular, certain, continuing, constant and predictable", and he was given rostered shifts well in advance, he was eligible to entitlements that full time employees receive under the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) and the relevant Enterprise Agreement: being paid annual leave, paid personal/carer’s leave, paid compassionate leave, and payment for public holidays. This is an important decision for employers who engage casuals, whether directly or as a host employer. Pending any intervention by the Federal Government or appeal to the High Court, employers should now carefully review their casual employment arrangements, update the terms of their casual contracts, and revisit their arrangements with labour hire companies and their workers. In particular: • Employers should review their casual arrangements with a view to determining whether some other form of engagement is more appropriate – including part time and fixed term arrangements. • Assuming casual engagement is still appropriate, specific attention should be given to the employee’s written contract to ensure that the casual loading is a separately identifiable amount that is stated to be paid as a result of the employee not being entitled to NES or other entitlements peculiar to permanent employment. We also suggest a statement to the effect that if the employment is subsequently determined not to be casual employment, the employer is entitled to repayment of the casual loading. • Regular reviews of casual arrangements should be conducted – at least once every 12 months – to assess the likelihood of the employment being a “firm advance commitment” of employment. We can assist you if you have any questions about how the Workpac v Rossato decision may impact the work arrangements in your own organisation or more generally in relation to how you are employing or engaging your workforce.