With so many new small business laws out this year, it can be hard to keep up! Never fear, legal maestro Vanessa Emilio has prepared this shortlist of ‘need to know’ changes and how they impact you.
1. Mandatory Data Breach Notification
When does it start?
It kicked off 23 Feb 2018.
What is it?
Mandatory data breach notification obligations means that businesses no longer have an option to conceal cyber security breaches that may have happened to their business networks.
There is now a requirement to notify both the Office of the Australian Information Commissioner (OAIC) as well as ‘affected individuals’ (your customers and suppliers) if your business or any part is hacked or computers are stolen or any type of incident which involves client or customer private information.
Who does it affect?
All businesses that are subject to the Privacy Act and Australian Privacy Principles (APPs) with substantial penalties for non-compliance (you need to know if you are!).
What do you need to do?
The key actions you need to take (if you haven’t already) are:
- review your privacy policy: is it up to date and match the APP obligations
- audit your current information security processes and procedures to ensure they are adequate;
- prepare a data breach response plan (or update your current plan); and
- train staff about responding to data breaches.
What are the penalties?
Anyone who fails to notify the OAIC faces penalties including fines of $360,000 for individuals and $1.8 million for organisations.
2. Queensland’s New Labour Hire Licensing Laws
When does it start?
16 April 2018 with 60 days after this date to lodge a license application.
What is it?
These new labour hire licensing laws are impacting a scarily large number of existing businesses in a serious manner. A new mandatory labour hire licensing scheme has come in to effect that applies to all labour hire providers operating in Queensland. It also bans businesses from entering into labour hire arrangements with unlicensed providers.
Who does it affect?
Any business with a connection to Queensland that either provides or uses labour hire.
The legislation is very broad and includes anyone who provides a worker or services to another person to do work in their business. You may think you are not caught but a labour hire provider is someone who supplies a worker to do work. This affects a lot of businesses! It doesn’t matter if:
- the worker is an employee or not;
- the worker is supplied directly or indirectly;
- a contract is entered into between the worker and the provider, or the provider and the person to whom the worker is supplied; or
- who controls the worker’s work.
It captures arms-length labour hire providers; internal labour providers where workers are employed by a different business to the one they are providing services for; and secondments and loans of workers. It does not apply to traditional subcontractor arrangements, volunteer or work experience placements. It does mean that recruitment firms, vendor refill services, many contractor services, and a broad range of businesses now need to be licensed.
Basically, it includes any work that is performed by labour hire workers in Queensland, whether or not the labour hire worker or company is based in Queensland.
What you need to do:
If you provide any labour services you must:
- apply for a license on or after 16 April 2018 online if you provide labour or are seen to provide labour to any Qld business;
- meet the ‘fit and proper person’ test to show the business complies with relevant laws and that the business is financially viable;
- comply with workplace laws (workers comp, wages and super); and
- comply with regular reporting on operations
If you use any labour provider services, you must ensure all labour hire providers are licensed and registered.
What are the penalties?
The maximum penalties for a breach of these provisions is $126,044.60 or three years’ imprisonment for an individual, or $365,700 for a corporation.
3. South Australia’s New Labour Hire Licensing Laws
When does it start?
1 March 2018, however businesses have 6 months to apply for a license.
What is it?
South Australia has recently introduced labour hire licensing laws similar to Queensland with a mandatory licensing scheme that applies to all labour hire providers operating in the state.
Who does it affect?
As with the Queensland legislation, it is anyone that may be seen to be ‘providing workers’ in any manner to a business in South Australia. This includes any outsourcing, contractors, essentially any service providers who are providing a service to a business at their place of work.
Anyone hiring or using outsourced services is also required to ensure the business they hire from is licensed.
What does it mean?
Labour hire providers (including all people who provide staff, contractors, service providers) will have to pay licensing fees, have compliance regimes in place to ensure they pass fit and proper person tests and demonstrate workplace laws and employee entitlements.
What you need to do?
If you provide labour services you must:
- apply for a license within the 6 month transition period;
- meet the ‘fit and proper person’ test to show the business complies with relevant laws and that the business is financially viable; and
- comply with regular reporting on activities
If you use any labour provider services, you must: ensure all labour hire providers you use are licensed.
What are the Penalties?
Up to $400,000 or three years jail for breach of obligations.
4. Victoria’s New Labour Hire Licensing Laws
When does it start?
Dec 2017 Victoria passed a similar bill. It is not yet legislation nor has a start date been announced. The latest it can come into effect is Nov 2019 but it will likely be prior.
What is it?
Victoria recently introduced a labour hire licensing bill similar to Queensland and South Australia. They are, however, still finalising the details.
The requirements are similar to Queensland and South Australia including that providers of labour hire services are required to hold a license and anyone using labour hire services must only use licensed providers. There is also a fit and proper person test unlike Queensland and South Australia, they are likely to require applicants for the licenses to be able to show they are good corporate citizens.
Who does it affect?
Any business with a connection to Victoria that either provides or uses labour hire.
What you need to do?
If you are a business that may be affected, either as a labour provider or hirer of labour services in Victoria, you need to keep checking on the new legislation that will be coming in and understand your obligations.
5. Proposed changes to Australian Consumer Law (ACL)
When does it start?
Still being finalised but likely to take effect by 1 July 2018.
What is it?
There are two main issues to be aware of:
- Significant increases of maximum penalties for breach of consumer law from $1.1 million for a corporation or $220,000 for an individual to up to $10 million for a corporation or a cost based on a % of annual turnover. For an individual, the penalty increase is from $220K to $500K.
- New mandatory requirements for warranties against defects. The current requirements are: terms with your customers must include language in accordance with the ACL advising of any warranty against defects on goods that is additional to the minimum consumer rights under the ACL.
The new requirements are: your terms must include wording for a warranty for any supply of services also.
There are other proposed changes including making it easier for customers to sue but these are the main ones to be aware of.
Who does it affect?
Any and all businesses that offer goods or services to the Australian public consumer.
What you need to do?
If you are a business that may be affected and you offer services to customers, you need to keep checking on the new changes to the Consumer law legislation that will be coming in and understand your obligations. You need to be aware of these proposed changes and ensure your business is up to date on the requirements.
These are the latest and most recent main updates and changes to be aware of. As Julius Caesar once famously said: “If you must break the law, do it to seize power; in all other cases observe it.”
If you have questions on the new small business laws or need more, ask below or get in touch.
