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AMTIL FORUMS
from AMT OCT/NOV 2021
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Sexual Harassment: It’s time to get your house in order
Time is running out to get your house in order... There are new sexual harassment laws proposed by the Federal Government. Employers need to determine where to draw the line between harmless banter and sexual harassment. By Jonathan Mamaril.
Manufacturing and blue-collar businesses could find themselves embroiled in costly legal battles unless they overhaul their sexual harassment policies to align with the Federal Government’s new ‘Respect at Work’ laws. On 1 September, the Federal Government acted on the recommendations of Australia’s Sex Discrimination Commissioner Kate Jenkins and passed the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021 – strengthening Australia’s stance on sexual harassment in the workplace. The law change means employees can be fired if they are found to have sexually harassed a colleague. It’s left employers in male-dominated industries, including transport, manufacturing and construction, where banter and sexual innuendo is often more common, urgently reviewing how they protect their staff, and themselves. Sexual harassment is not always clear-cut, and what can seem like harmless workplace flirting or cheeky banter, may land employees, and potentially employers, in hot water. So, what’s the solution? A Turnbull-style bonking ban? A banter ban? The line is a difficult one to draw, but employers need to work out where to draw it now. While the Federal Government’s new laws aren’t as heavy-handed as originally anticipated, the ‘me too’ movement has taught us even in the absence of strict laws, society will hold perpetrators and bystanders to account. So, what is sexual harassment? The Sex Discrimination Act 1984 (Cth) defines sexual harassment as: • an unwelcome sexual advance; • an unwelcome request for sexual favours; or • unwelcome conduct of a sexual nature in circumstances where a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. Intention of the ‘harasser’ is completely irrelevant. Instead, the law focusses on how their actions or words are perceived. An expanded definition of ‘Serious Misconduct’ under the Fair Work Act
Some employment contracts already state that sexual harassment is ‘serious misconduct’. This gives an employer the ability to dismiss an employee who has been found to be a harasser. In line with Kate Jenkins’ Respect@Work recommendations, ‘serious misconduct’ will be incorporated into the Fair Work Act. It will therefore apply to all employer-employee relationships, regardless of the contract. This will make it easier for employers to defend an unfair dismissal claim where an employee’s contract has been terminated due to sexual harassment. It also means the harasser will need to prove sexual harassment did not occur to avoid serious repercussions. A ‘stop sexual harassment order’, similar to the ‘stop workplace bullying order’ that has existed for some time now, has also been implemented.
The law change means employees can be fired if they are found to have sexually harassed a colleague
Judges and politicians will be subject to the sexual harassment laws
While not directly applicable to the manufacturing industry, it’s also interesting to note these sexual harassment laws will apply to government workplaces for the first time. As a result, we may see even more claims of sexual harassment from staffers and public service. It’s time to be proactive
There are several initiatives employers can implement to ensure a safe workplace. 1. More specific sexual harassment training; 2. Prescriptive sexual harassment policies; 3. A crackdown on sexual jokes, innuendo or other behaviours; and 4. Greater scrutiny and transparency in the investigation of sexual harassment complaints. Proactive measures should also consider employees’ psychological health. This will no doubt require more management training on how to identify psychosocial risks, and what to do if they suspect an employee’s psychological health is impacted. Some practical tips
Prevention is always the best approach, but if you’re an employer and find yourself dealing with a sexual harassment complaint, there are two golden rules: 1. Complaints must be handled with care and empathy – trust is key; and 2. A thorough investigation should commence immediately after an allegation is made. This is not the time for a DIY approach.
A lawyer-run investigation, or at least obtaining legal advice, will ensure a fair process for all parties. These new laws pave a clearer path for employees to file sexual harassment complaints. It’s time to get your house in order.
Jonathan Mamaril is Director of NB Lawyers. For all Manufacturing Employers, NB Lawyers can offer an obligation-free consultation. Tel: +61 (07) 3876 5111 Email: service@nb-lawyers.com.au www.lawyersforemployers.com.au
Victoria's on-the-spot fines for OHS non-compliance now in force
The issuing of on-the-spot fines last July by WorkSafe Victoria is an alternative to prosecution and to strengthen WorkSafe Victoria’s compliance and enforcement capability. Its primary goal is to act as an additional deterrent for employers, sending a clear and timely message to those who are still not taking their OHS obligations seriously. On 31 July, the Victorian Government introduced on-the-spot fines Further information and support for employers who put the health and safety of their workers at risk, to eliminate bad behaviour and help ensure every worker gets home safely. The introduction of on-the-spot fines provides an immediate alternative to prosecution, for those employers who do the wrong thing. To support the introduction of the infringement notices scheme on 31 July 2021, WorkSafe held an educational webinar to ensure key stakeholders, including employer and employee representatives and the Victorian community, are informed about the scheme, what it means for them and where to get more information. What is an infringement notice? If you missed out on the day, you can catch-up by watching this An infringement notice is basically a fine that is given by an inspector informative, 16-minute WorkSafe video: “A new tool for a safer to a person who has committed an infringement offence, where Victoria” at www.worksafe.vic.gov.au/infringement-notices-scheme the offending conduct is clear and doesn’t require an extensive investigation. The notice itself will contain information about the What offences can an infringement notice be issued for? alleged offence, how much is owed, the date on which the fine An infringement notice can be issued for an infringement offence as must be paid (at least 21 days from when the notice is served) an alternative to prosecution. and also ways to resolve the infringement. This can include options There are 54 offences under the OHS Act and Regulations that are for payment, requesting a review, or applying that it be heard and prescribed as infringement offences. determined by a court. In summary, the offences relate to: The Penalties • undertaking work without a required licence, registration, Inspectors from WorkSafe Victoria can now issue infringement qualification, experience or supervision notices with penalties of up to $1817.40 for certain offences, such • using plant that is not licensed or registered as required as working without a required licence, registration, qualification • failing to meet various duties relating to the removal and or supervision, or the use of equipment or substances that are storage of asbestos not licensed or registered. Infringements can also be applied to individuals or businesses failing to meet duties relating to the • failure to keep various required records removal and storage of asbestos and failing to keep required The prescribed infringement offences apply across all industries records. Fines vary depending on the nature of the offence and already regulated by the OHS Act, including construction, working range from $363.48 for an individual and between $1090.44 with asbestos, major hazard facilities, hazardous substances, and $1817.40 for a corporation. All fines are processed through mining and quarries. Fines Victoria with funds received from infringement notices to be If you commit any of the offences under the OHS Act or OHS allocated back to the WorkSafe Victoria scheme. Regulations, WorkSafe inspectors can issue an infringement notice. The infringement notice scheme is intended to strengthen WorkSafe The offences may be accessed by visiting this website: Victoria’s compliance and enforcement capability and act as an www.worksafe.vic.gov.au/infringement-offences or phone 1800 additional deterrent for employers who do not take the safety of 136 089 their workers seriously. These infringement notices add to the suite of tools that an inspector What are the changes? can use and serve as a reminder that there is no complacency WorkSafe Victoria and its inspectors and investigators will continue to provide guidance and information, issue improvement, nondisturbance and prohibition notices, and prosecute safety breaches where appropriate. with workplace safety. An employer or duty-holder should always be thinking of the risks that they are undertaking or their business poses to both employees and other persons and be thinking of ways to eliminate or reduce those risks.
The NSCA Foundation is a not-for-profit, member-based
Under the infringement notice scheme, the obligations of employers association focused on helping organisations protect their do not change; duty holders must continue to do everything that most important asset - their people. Since 1927, it has is reasonably practicable to provide a workplace that is free from continued to inspire, educate, inform and engage the risks to health and safety. The ability to investigate and prosecute Australian work health and safety profession to create and breaches of the OHS Act in the courts continues to be part of sustain safe and healthy workplaces. It enables professional WorkSafe Victoria’s compliance and enforcement approach. development through in-person events, webinars, updates “Adding on-the-spot fines to the range of compliance tools on industry developments through the Safe-T-Bulletin and the National Safety magazine, networking opportunities, available to WorkSafe will provide a clear message to employers and online resources. that putting their workers at risk will not be tolerated. This is about making sure every worker gets home safely — and making sure Tel: 02 8875 7820 those who are doing the wrong thing face the consequences” said Email: membership@nscafoundation.org.au Victorian Minister for Workplace Safety Ingrid Stitt. www.nscafoundation.org.au
What do the changes to the export market development grants mean for you?
Berrin Daricili explains what has changed with the Export Market Development Grant program.
The Export Market Development Grant (EMDG) program is a key financial assistance program designed to help businesses market and promote their goods and services internationally. It provides funding to assist over 4,000 small and medium enterprises (SMEs) per year cover export-related costs such as producing promotional material, travelling overseas, and providing free samples. What’s changed?
Traditionally, the EMDG program operated under a reimbursement model, where eligible applicants were able to claim eligible expenses incurred during a particular financial year once that financial year had ended. Whilst the program still operates this way for any eligible export marketing expenses incurred up to 30 June 2021, significant changes came into effect on 1 July 2021 that changed the EMDG program from a reimbursement scheme (where an application is made in retrospect) to a traditional grant program. Importantly, applicants can now apply for the grant (for eligible export-related expenditure for each year over the next 2 or 3 years) and receive confirmation of funding before those expenses are incurred. These changes are designed to: • Be more responsive to the needs of different types of exporting businesses, with different grant funding ‘tiers’ available based on an applicant’s export-maturity. • Simplify the application process, allowing applicants to apply only once for a grant that will span 2 or 3 years (depending on funding tier). • Provide applicants with more certainty regarding funding amounts they are entitled to before they incur export-related expenditure. Grant agreements will span two ort three years and will now specify the amount of funding that will be provided to a successful applicant for each of those years. It is also important to note that the EMDG program remains ‘entitlement-based’ rather than competitive, which means all applicants that meet eligibility criteria will receive grant funding. No comparison between applicants will be made. However not all applicants will necessarily receive the amount of funding they request as the total funding pool must be distributed among all eligible applicants. The grant also remains capped at 8 years – once an applicant has reached 8 years of grant funding (not necessarily consecutively), they will no longer be eligible to apply for the program. Funding for exporters
EMDG grants are available at three varying levels of support, called ‘tiers’. The funding amounts and lengths of these grant tiers reflect the different stages of an exporter’s journey: • Tier 1 – Ready to export: Tier 1 grants support first-time exporters with funding of up to $40,000 per financial year for two years. • Tier 2 – Expanding: Tier 2 grants support those expanding their export promotion activities (i.e. they must already be exporting) with funding of up to $80,000 per financial year for three years. • Tier 3 – Expanding and strategic shift: Tier 3 grants support those expanding their export promotion activities and making a strategic shift (e.g. targeting a new market or new type of customer) with funding of up to $150,000 per financial year for three years. Applicants can apply for any tier level that suits their organisation, and do not need to progress through each tier consecutively. Funding for representative bodies There are also grants for industry bodies and alliances to help their members to become export ready and export successfully, such as providing training to members who are new to export. These representative bodies will be able to access up to $150,000 per financial year across three years to provide this training and undertake promotional activities on behalf of their members. Eligibility criteria
Applicants must be: • An Australian entity (e.g. sole trader, trust, partnership, company), hold an ABN, and have a turnover of less than $20m for the financial year previous to the claim year. • Exporting or ready to export eligible goods, services, events, IP or know-how, and/or software that is of substantially Australian origin. • Intending to incur eligible expenditure on activities undertaken for the purpose of marketing eligible products overseas (excluding NZ). All expenses must relate to promotional activities to market in foreign countries, or training activities to develop skills in such marketing. • Able to match, at a minimum, the dollar value of the grant funding amount they receive (i.e. at least 50% of the total eligible expenses they plan to incur). Application process
EMDG applications must be submitted online, along with supporting documents that prove an applicant’s eligibility and describe its export marketing intentions. The specific attachments that will need to be collated and submitted along with an applicant’s EMDG application vary depending on: • The grant funding tier being applied for. • Whether the applicant is exporting a ‘good’ or a ‘service’. • Whether the applicant is an SME exporter or a representative body. Applicants will also need to submit their 2020-21 Balance Sheet and Profit and Loss Statement as evidence that their turnover is less than $20m. Once grant applications are assessed, eligible applicants will receive a grant agreement outlining the amount of funding they will receive and the length of the grant agreement. Grant funding is then provided via milestone payments (payments will be made within 14 days of submitting a milestone report), rather than in a lump sum. EMDG applications for expenses incurred from 1 July 2021 are currently open and close at 5pm on Tuesday, 30 November 2021.
William Buck can offer assistance to businesses with determining their eligibility and preparing successful grant applications. Berrin Daricili, Manager, R&D Grants & Incentives Tel: 03 8823 6846 Email: Berrin.darcili@williambuck.com Dr Rita Choueiri, Director Tel: 03 8823 6846 Email: rita.choueiri@williambuck.com www.williambuck.com
Australia’s Proposed New Patent Box: Update
The Federal Government recently announced the proposed introduction of a patent box for Australian medical and biotechnology industries, as explained by Karen Heilbronn Lee.
As part of the 2021-2022 Federal Budget handed down on 11 May 2021, The Federal Government announced the proposed introduction of a $206.4m patent box for Australian medical and biotechnology industries. The Government indicated that it would consult with industry on the design of the patent box, and to this end, Treasury released a discussion paper on 5 July 2021 advising further details of the proposed regime. Karen Heilbronn Lee Named quite literally after a tick box historically present on income tax forms, a patent box provides tax incentives designed to encourage companies to commercialise and manufacture patented technology locally. Australia’s proposed patent box is slated to tax income derived from eligible patents at a concessional corporate tax rate of 17%, rather than the standard corporate tax rate of 30%, or 25% for small and medium enterprises (SMEs), from 1 July 2022. The measure is intended to incentivise Australian companies to invest in and perform their research and development (R&D), commercialisation and manufacturing of patented technologies onshore. The Discussion Paper states that the patent box is “a longterm tax measure to attract R&D activity and retain IP income in Australia”. Which technologies will be eligible?
The Discussion Paper indicates the concessional tax rate would only apply to profits derived from inventions in the medical and biotechnology sectors, claimed in granted standard Australian patents having a priority date (first filing date) after 11 May 2021. According to the Discussion Paper, determining whether profit is derived in the medical and biotechnology sectors, and is therefore eligible for the patent box regime, would be based on the “use or classification of individual patented inventions” rather than an overall industry classification of the company that owns the patented invention. This could be determined using either: • A patent-level test, where patented inventions only qualify for the regime if the invention defined in the patent claim is primarily used or classified in the medical and biotechnology sectors. The World Intellectual Property Organisation (WIPO) has suggested a breakdown of the International Patent
Classification (IPC) system for medical and biotechnology inventions, which could assist in determining eligibility. All eligible profits would then receive the concessional rate, including eligible profits attributable to activity in other sectors. • Income streaming test, where all patented inventions qualify for the regime, but only eligible profits attributable to activity in the medical and biotechnology sectors would receive the concessional rate. However, it is not clear how the determination as to whether profits are 'attributable' to activity in the relevant sectors would be made. What about cleantech?
The Government is consulting on the potential expansion of the patent box regime to include low emissions technologies (i.e., “cleantech”). The Discussion Paper points to the Government’s commitment to the Paris Agreement, including its intention to meet and exceed Australia’s 2030 Paris target of reducing greenhouse gas emissions by 26 to 28% below 2005 levels by 2030, and achieving net zero emissions as soon as possible, preferably by 2050. While the Discussion Paper stops short of confirming whether low emissions inventions will be included in the patent box, it is stated that it may provide an additional lever for the Government by encouraging further innovation in low emissions technologies. Moreover, the Discussion Paper specifically asked for feedback on this issue. We are therefore hopeful that cleantech inventions will ultimately be included in the patent box. What IP income would be eligible?
The Australian patent box would be consistent with Organisation for Economic Co-operation and Development (OECD) guidelines and standards, and on this basis will include a 'nexus approach', administered as part of the corporate tax system. To determine eligibility, a taxpayer will need to provide evidence of: • appropriate nexus between R&D activity and eligible patented invention, and • appropriate nexus between eligible patented invention and eligible profits. Essentially, the concessional tax rate would only apply to profits from patented inventions in proportion to the amount of relevant R&D (i.e., R&D associated with that invention) that occurred in Australia. That is, the qualifying IP income would need to be adjusted by the R&D fraction, which represents qualifying Australian R&D expenditure as a proportion of overall R&D expenditure on the IP asset. The types of IP revenue that will be eligible are currently under discussion, including: • royalties or licence fees derived from an eligible patented invention, • revenue embedded in the sale of patented good or services or the use of patented processes in production, • revenue from damages or an account of profits for infringement of an eligible patented invention, and • revenue by sale or assignment of an eligible patented invention. Expenses that arise in developing, exploiting, generating and maintaining the relevant patented invention would need to be subtracted from eligible patent revenue, and accordingly, separated from non-eligible expenses that are unrelated to the patented invention. What else do I need to know?
On a technical note, several years typically elapse between patent filing and patent grant, although patent grant can be brought forward by various means including requesting early national phase entry in Australia followed by expedited examination. Further, some patented inventions take several years to begin to return a profit. Accordingly, it could be some time before the patent box regime begins to provide significant benefit. The Government has indicated it will issue and consult further on exposure draft legislation prior to introducing legislation into Parliament.
