A snapshot of potential industrial relations reforms from the new elected state and Federal Labor governments

A SNAPSHOT OF POTENTIAL INDUSTRIAL RELATIONS REFORMS FROM THE NEWLY ELECTED STATE AND FEDERAL GOVERNMENTS

MAIDA MUJKIC, SOLICITOR, AND JOHN LOVE, PARTNER, MELLOR OLSSON

The newly elected Labor State and Federal Governments have promised to introduce significant employment law reforms that are likely to impact employers across all industries. If they enact these election promises, it will bring major changes to workplaces across Australia. Labor’s changes will mainly focus on secure work, with the proposed changes giving new protections to ‘gig workers’, casual workers and women in the workplace. In this article we provide a summary of key changes you can expect to be discussed during Labor's upcoming job summit held in September.

FEDERAL

Paid domestic violence leave

In 2018, the Fair Work Commission varied over 100 modern awards to include five days’ unpaid leave to deal with family and domestic violence

Earlier this year, the FWC began its four yearly review of the family and domestic violence leave entitlements in modern awards and arrived at a provisional view that the entitlement to family and domestic violence leave should be increased to ten paid days.

The new Labor Government has committed to legislating ten days paid family and domestic violence leave with the Minister for Employment and Workplace Relations, Tony Burke stating:

the Government intends to introduce 10 days paid family and domestic violence leave into the National Employment Standards as soon as possible. Better deal for Gig workers

Labor has promised to introduce greater regulation to the ‘gig economy’. Most gig-workers are classified as independent contractors in Australia and are not entitled to award benefits (i.e. minimum wage), superannuation, and access to unfair dismissal protections.

Gig workers, such as ride share and food delivery drivers, will be provided with some minimum standards under the Labor Government. The Fair Work Commission will be given powers to set minimum standards for gig and other ‘employee-like’ workers.

Currently there is little information about how Labor will implement this policy, however it is likely that the Commission would be given the power to make orders regarding entitlements such as minimum pay rates, superannuation and dismissal rights of contractors.

These changes will ensure that more workers can access workplace entitlements that they otherwise cannot access. The changes will provide better protection from exploitation and dangerous working conditions for people in new forms of work.

While some ‘gig-economy’ platforms have taken steps to improve conditions, a national approach to offer fair and decent pay and conditions will be welcomed by the thousands of Australians in the industry. Same job same pay

Labor is expected to introduce ‘samejob, same-pay’ legislation that would ensure all workers receive the same pay. The proposed legislation would make it unlawful to pay labour hire employees less than those who are employed directly with the employer to do the same job.

In late 2021, Labor introduced the Fair Work Amendment (Same Job, Same Pay) Bill 2021 (2021 Bill) to address the long standing issues within the labour hire industry. The Bill had no real prospects of passing while the Coalition had a majority in the Parliament, however, it is now likely that an amended version will soon become law. Nevertheless, the 2021 Bill provides an indication of what new ‘same-job, same-pay’ legislation would look like.

The 2021 Bill imposed obligations on the labour hire business and host employers that use labour hire. The obligations included: • Providing ‘pay and conditions which are no less favourable than those that would be required to be paid’; and • Not engaging any labour hire business unless that business agrees, as part of the terms of engagement, to comply with the ‘same-job, same-pay’ obligations.

If introduced, the obligations were to form part of the NES, becoming binding on nearly all employers in Australia.

The Government has indicated it is willing to delay these changes if more consultation is needed but there is a real possibility that ‘same-job, same-pay’ legislation will come into effect sooner rather than later.

Abolishing the Australian Building and Construction Commission

The Government has confirmed that as part of its wide sweeping changes, the ABCC will be defunded during the October budget with legislation to abolish the ABCC to follow.

In 2013 the Coalition restored the ABCC, banning secret and corrupt payments between employers and unions, cracking down on unlawful behaviour of construction unions and allowing parts of an amalgamated union or employer body to de-merge if dissatisfied with the larger organisation.

Labor has proposed to abolish the highly politicised body in a plan to cut down the Government’s $1 trillion debt citing savings of at least $28 million. Labor has also stated that the ABCC pursues union officials over minor infractions, but does nothing about wage theft, sham contracting or worksite deaths in the construction industry.

During Labor’s last term, it replaced a similar construction watchdog with the less intrusive Fair Work Building and Construction agency, however, experts predict that a new body will not be introduced with the Fair Work Ombudsman taking on the role as the enforcement body for the construction industry.

STATE

The State Labor Government has committed to modernising workplaces by addressing the increasing level of insecure work and has indicated it will introduce new laws to ensure that wages are paid and workers are protected.

Industrial Manslaughter

The Labor Government has committed to legislate to make industrial manslaughter an offence in South Australia. The proposed laws would apply where an employer acts recklessly and their actions are the primary cause of an employee’s death.

The laws would significantly increase the maximum prison term to 20 years for company officers who negligently breach their duty to provide a safe workplace. The Premier has stated there are “too many avoidable injuries and deaths in workplaces”, and that the Labor party will “introduce industrial manslaughter laws with a focus on avoiding preventable deaths”.

There has been some opposition to the proposed laws, with critics noting there is no need for them. Workplace deaths are currently covered by the offence of manslaughter in the Criminal Law Consolidation Act 1935 and recently strengthened work health and safety laws cover reckless actions that cause a workplace death.

Similar industrial manslaughter laws have been successfully introduced in Queensland, Victoria, Western Australia, the Northern Territory and the Australian Capital Territory. It is likely South Australia will be the next state to legislate to make industrial manslaughter an offence. Making Wage Theft a Criminal Offence

The SA Labor Government has pledged to introduce legislation “to create criminal penalties for persistent and deliberate underpayment of workers, including wages and superannuation.”

Wage theft refers to the deliberate underpayment of wages or nonpayment of entitlements and can occur in a number of different ways, including unpaid or underpaid hours or unreasonable deductions. In South Australia, it has been estimated that approximately one fifth of the state’s workforce is impacted by underpayments, with underpayments often occurring due to mistake or confusion.

Current federal laws provide for civil financial penalties for businesses that deliberately or recklessly underpay their workers. Employers can face a fine of up to $13,320 for each offence committed by an individual and $66,600 for each offence committed by a company. The fines increase to $133,200 and $666,000 respectively for serious contraventions.

If the proposed changes are introduced, employers engaging in wilful and deliberate wage theft could face up to 10 years imprisonment, as is already the case in Queensland and Victoria.

While there may be changes to current proposals between now and legislation being introduced to Parliament, the next few years will see significant legislative changes in the area of employment law at both the state and federal level. B