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Our voice to be heard at Industrial Relations Senate Inquiry
Over the last year, the Federal Minister for Workplace Relations, Tony Burke has tabled three tranches of reform to industrial relation laws. The most recent the Closing Loopholes Bill - was introduced to Parliament on Monday, September 4, 2023.
Whilst some of the changes do aff ect accommodation and hospitality, our sector is far less aff ected than areas such as mining, building and airlines. Much of this is a credit to the Australian Hotels Association Workplace Relations team having the Hospitality Award ahead of the field.
The new Closing Loopholes Bill addresses issues like flexible work, labour hire, ‘employee-like’ forms of work, wage theft , union right of entry, and casuals.
Many of the changes proposed will be ideologically opposed from the outset by employers. But, on a pragmatic level, our members will be relatively unaff ected andwhere hotels are impacted – the AHA workplace relations teams are well equipped to deal with problems.
That said, there are several issues with the bill we will be seeking to address.
When it comes to multiemployer bargaining for example, the Bill proposes to modify the application of the Better Off Overall test (BOOT) when an employer covered by a multi-employer agreement wants to bargain for their own single-enterprise agreement.
The single-enterprise agreement will be assessed against the multi-employer agreement, not the applicable modern award. We will be opposing this due to the unreasonable risk it creates for members who are roped into a multi-employer agreement after it has been approved.
Another example is when it comes to casual workers. The Bill proposes a new test that –amongst other things - requires employers to evaluate (and re-evaluate) the true nature of each casual’s employment circumstances on an ongoing basis, introduces a complex definition based on the absence of something, and defines the absence of advance commitment by a multi-factorial test of relative considerations.
It also introduces a right for casuals to request conversion every six months and requires employers who wish to refuse to provide detailed reasons why (creating an administrative burden). We will be opposing this due to the practical implications – a result of this change would see hospitality employers avoid casual employment altogether - and others will change their practices to reduce risk.
Another big issue the Bill deals with is wage theft – which is always well publicised (rightly so in many cases). In the Bill employers who deliberately underpay workers will be subject to up to ten years in jail or fines up to $7.8 million or three times the amount of the under payment. The bill will also elevate “reckless underpayments” to be a serious contravention of the Act, with fines of $939,000 for individuals, $4,695,000 for companies, or three times the amount of the underpayment. Currently, a serious contravention is for knowingly and systematically engaging in a pattern of conduct - the Bill wants to lower the threshold of a serious contravention to include either knowingly or recklessly making a mistake. We want oneoff reckless mistakes to stay down at the civil contravention level and for the threshold of a serious contravention to stay the same (or, in plain English, to be for knowingly and systematically engaging in a pattern of conduct). It’s important to note here wage theft only applies to willful conduct using the criminal test. Then there’s the Union right of entry clause. The Bill will see right of entry in the Fair Work Act amended to include the right of a union to seek an exemption certificate where the FWC is satisfied a suspected contravention involves the underpayment of wages. No notice needs to be given to the employer. The AHA and Accommodation Australia will be supporting ACCI in opposing this amendment. It’s important to note the smooth passage of the Bill will require crossbench support. A Senate Inquiry process has been locked in.
Submissions closed on September 29 and the reporting back date for the committee is February 1, 2024. We thank the Opposition and Cross Bench for their support in having the Bill referred to a Senate Committee for review. I also note that Minister Burke and his office have been willing to listen to our concerns and this Senate review process will give us the best opportunity to have our voices heard.
