Following Labor's victory on Saturday night, Australia's employers can look forward to a raft of changes to workplace law with a particular focus on job security, implementing measures to prevent the exploitation of casuals and other forms of insecure work and gender pay equity. Given the Senate result and likely composition of the House of Representatives, there will need to be some horse-trading to get its agenda through with cross-bench support, but here is what Australia's new Federal Government has planned.
Casual employees and gig workers
The new Government will amend the definition of "casual employment" by legislating an objective test to determine whether a worker will be classified as a casual employee. These amendments would seek to provide casual employees with a clearer pathway to permanent employment based on their ongoing employment relationship, as opposed to the terms and conditions agreed at the commencement of the employment relationship.
The Fair Work Commission (FWC) will be able to make orders for minimum standards for new forms of work, such as gig work, and to determine what rights and obligations may or may not apply.
Enshrining "job security" in the Fair Work Act
The new Government has committed to enshrine secure work as an objective of the Fair Work Act, which would require the FWC to expressly consider job security in all its decision-making. Beyond this, we need more details about how this would be defined or be applied in practice, including its interactions with other considerations in the Act or the exercise of managerial prerogative by employers.
The ALP has promised to introduce two main reforms in this area.
The first would be "same-job, same-pay" legislation to ensure workers employed by labour hire firms receive the same pay and conditions as workers who are employed directly. It's currently unclear if "same pay" means the same salary or matching of various other entitlements that may be afforded to employees (including under enterprise agreements).
The second would be a new national labour hire licensing scheme. This would be similar to those currently in operation in certain States and Territories, under which all labour hire providers must obtain and maintain a licence in accordance with certain conditions (including reporting obligations, compliance with workplace laws).
The new Government will consult with State and Territory Governments, unions and industry on developing portable entitlement schemes for annual leave, sick leave and long service leave for particular industries. This would mirror current State and Territory frameworks in the construction, mining and cleaning sectors.
Limiting rolling maximum-term contracts
The new Government would limit the number of consecutive fixed term contracts an employer can offer for the same role, with an overall cap of 24 months, following which an employer would be required to offer the worker a permanent position for the role.
The new Government will convene an "employment summit" to "bring employers and unions together to collaborate on secure work and to ensure enterprise bargaining works effectively". It has also indicated its support for:
- giving the FWC broader powers to arbitrate disputes arising in the course of enterprise bargaining;
- preventing the unilateral termination of collective agreements if employee entitlements will be reduced; and
- improving access to collective bargaining, potentially through multi-employer bargaining.
The new Government is committed to legislate to make wage theft a criminal offence. It will consult with unions, States and Territories and employer groups to ensure federal wage theft laws will not override existing state and territory laws in operation.
Gender pay equity
The new Government will lead a national push to help close the gender pay gap and increase pay for women workers – particularly in caring jobs – by:
- strengthening the ability and capacity of the FWC to order pay increases for workers in low paid, female dominated industries;
- fully implementing all 55 recommendations of the [email protected]: Sexual Harassment National Inquiry Report 2020 and legislating for 10 days’ paid family and domestic violence leave as a National Employment Standard (NES);
- legislating so companies with more than 250 employees will have to report their gender pay gap publicly;
- prohibiting pay secrecy clauses and giving employees the right to disclose their pay if they choose to; and
- taking action to address the gender pay gap in the APS.
Gender equity will become an object of the Fair Work Act; the new Government will also establish two expert panels, one on pay equity and another for the care and community sector “to help improve pay and conditions for women in those sectors”. The first will hear equal remuneration cases and the second panel will handle award cases relating to the care and community sector.
Union regulation and penalties
The new Government will abolish the Registered Organisations Commission and Australian Building and Construction Commission.
The new Government will enshrine superannuation in the NES, meaning that workers would be able to pursue employers directly for unpaid super. A target is also planned for the ATO to improve the recovery rate for unpaid superannuation. It will also examine super on paid parental leave.
Significant changes ahead
These changes will have significant impacts on employers across all industries and in some industries, for example construction, the changes are likely to lead to significant risks and challenges. Employers should plan for the impact of these changes to try to mitigate some of those risks and we can assist you with that planning.