Post-election Insight - Kingston Reid

Post-election Insight

The 2022 federal election has delivered a new Labor Government. Whilst it is yet to be determined, it looks like Labor will form a majority in the House and Labor and the Greens will form a majority in the senate. This is likely to lead to workplace and industrial relations reform. Although Labor’s ‘Secure Australian Jobs’, ‘Aged Care’ and ‘Equality for Women’ pre-election policies give us a fair idea of what these reforms will be, the presence of Greens and teal independents in our Parliament may see a reprioritisation of proposed reforms or the adoption of reforms which were not front and centre during the election campaign.

Although we will have a better insight into what the key ticket items for the new Government will be following the ‘Australian Jobs Summit’ (which Labor intends to convene with the business community and trade union movement as soon as practicable), we predict what major reforms will be trumpeted in the short to medium term future below.

Au revoir ABCC (again)

It is likely that Labor (with the support of the Greens) will quickly introduce a Bill into Parliament to abolish the Australian Building & Construction Commission (ABCC) and repeal the Building and Construction Industry (Improving Productivity) Act 2016 including the Code for the Tendering and Performance of Building Work 2016.

While the legislation and Code remain in place for now, it is unlikely that moving forward the ABCC will prosecute new matters, particularly those relating to union activities (such as union materials on building sites).

I am woman, hear me reform

As well as being the “climate change election”, the election was also fought and won on gender issues. Labor, the Greens and several teal independents campaigned on the adoption of all 55 recommendations of the Australian Human Right Commission’s (AHRC) Respect@Work. As such, these recommendations are likely to be implemented sooner rather than later.

As a recap, key reforms recommended in the Respect@Work report include:

  • Introducing a positive duty for employers to “take reasonable and proportionate measures to eliminate sex discrimination, sexual harrassment and vistimisation, as far as possible”. This will require employers to take active steps to make sure that its workplace(s) are free from sex discrimination, sexual harassment and victimisation. Simply having a policy which states that your organsiation has a zero-tolerance to these things is unlikely to be enough in fulfilling this positive duty. Employers will have to introduce measures such as mandatory bystander training for all employees, appointing “Respect@Work Officers” (as you would appoint First Aid Officers) to be a points of contact within your organisation for affected employees and those who need further education, regularly surveying employees on their experience within the workplace and holding managers accountable if there is any failure to prevent, or intervene early in cases of, sexual discrimination, sexual harassment and/or victimisation.
  • Give the AHRC broader powers to assess compliance with the positive duty outlined above and investigate workplaces over systemic sexual discrimination and harassment. The AHRC will be given investigative and enforcement powers similar to those of the Fair Work Ombudsman, including powers to:
    • require the giving of information, production of documents and examination of witnesses;
    • enter into enforceable undertakings with an organisation in breach of the positive duty; and
    • apply to the Court for an order requiring compliance with the positive duty.
  • Amend the AHRC Act to insert a cost protection provision where a claim proceeds to the Federal Court. The report recommends that such a provision is consistent with section 570 of the Fair Work Act 2009 (FW Act). In this past, the absence of a provision in the AHRC Act similar to section 570 of the FW Act has deterred persons from making an application to the Australian Human Rights and instead, these persons have utilised the general protections provisions in the FW Act (where applicable). Thus, employers can expect to see an uptick in claims made to the AHRC. Particularly in circumstances where the report also recommends that unions and other representative groups should be given the right to bring claims under the AHRC Act to Court.

In addition to the reforms recommended in the Respect@Work report, it is likely that the following will be introduced:

  • ‘gender pay equity’ as an objective of the FW Act, a statutory ‘Equal Remuneration Principle’ (modelled on the Queensland Equal Remuneration Principle) and the establishment of a ‘Care and Community Sector Expert Panel’ and ‘Pay Equity Panel’ within the Fair Work Commission (FWC). In practice, this may result in a higher number of applications for equal remuneration orders and equal remuneration orders made by the FWC.
  • payment of superannuation contributions on paid parental leave. Although Labor appeared to abandon this policy during its election campaign, this policy formed part of the Greens’ platform and therefore, may re-enter the policy debate, particularly if the Labor government secure a second term in 3 years.

Higher wages and ending insecure work

If Labor commands a majority in the House of Representatives in its own right, it is likely to be in a position to implement its ‘Secure Australian Jobs’ policy. Obviously, the composition of the Senate will have a baring on just how aggressive the policy position is pushed.  We consider that there are four key policies that Labor will prioritise.

  • Casual definition – Labor will amend the definition of casual employment to enable post-contractual conduct to be taken into consideration (e.g. patterns of work) in assessing whether a casual employee is a “true” casual employee.
  • Independent contractors – following the High Court decisions in Jamsek and Personnel Contracting, Labor will also likely introduce legislation which restores the ‘multifactorial test’ (or similar) previously applied by Courts and Tribunals in determining whether a person is an independent contractor or employee. Labor will also likely move to give the FWC new powers to deal with “employee-like” relationships (i.e. relationships in the gig economy), including powers to make orders for these workers and powers to resolve disputes between these workers and the platforms through which they perform work.
  • Same job, same pay for labour hire employees – Labor will introduce legislation to ensure workers employed through labour hire companies receive at least the same pay as workers who are employed directly.
  • Fixed term contracts – the FW Act will be amended to ‘cap’ fixed term contracts for the same role to two consecutive contracts or to a maximum duration, including renewals, of two years with some limited exceptions.

In addition, as promised during the election campaign, the Albanese-led Government will make a formal submission to the FWC (as part of its annual wage review this year) in support of an increase to the minimum wage. It is unclear what percentage increase the Government will be supporting, however, it is likely to be somewhere between 5% and 5.5% (an increase of 5.5% is contended for by the ACTU). Although any submission made by the Government to the FWC will not necessarily result in an increase higher than 5%, any position taken by the Government will likely impact on current and upcoming enterprise agreement bargaining rounds as unions shift to demand increases in line with any minimum wage increase contended for by the Government.

‘Unstacking’ of the Fair Work Commission

There has been a lot of talk from Labor this election about fixing the “stacking” of the FWC by appointing more “Labor representatives” to the FWC, before returning “half/half appointments”.

Labor will likely seek to justify making its new appointments by extending the powers of the FWC to include:

  • the powers of the new expert ‘Care and Community Sector Expert Panel’ and ‘Pay Equity Panel’ (as outlined above).
  • powers to deal with “employee-like” relationships (as outlined above).
  • (potentially) powers to set minimum pay and standards for owner-drivers as previously done by the Road Safety Remuneration Tribunal. It is unclear whether there will be separate legislative provisions introduced into the FW Act including these powers or whether owner drivers will simply be covered by the new “employee-like” work jurisdiction. It is also possible that Labor will seek to set up a tribunal separate to the FWC to deal with minimum pay and standards for owner drivers, as currently pushed for by the Transport Workers Union.
  • powers to regulate registered organisations. Labor will abolish the Registered Organisations Commission and refer serious contraventions of regulatory laws by registered organisations to the Australian Securities and Investments Commission for investigation and prosecution.
  • (potentially) powers to conciliate and arbitrate (by consent) underpayment of wages claims.

It is also possible that Labor will introduce a ‘Fair Work Court’, an independent judicial division of the Fair Work Commission determining matters such as unlawful dismissal, general protections claims and underpayment of wages claims.

Criminalising wage theft and industrial manslaughter

The new Government is committed to legislate to make wage theft and industrial manslaughter criminal offences. It will consult with unions, States and Territories and employer groups to ensure federal wage theft and industrial manslaughter laws will not override existing state and territory laws in operation.

Employers need to start considering how they are currently managing these issues and how current policies could be strengthened. Apart from any Government policy, the Election results provide employers with helpful insights into what issues matter most to their employees which presents an opportunity to reflect on how your organisation fairs in relation to these issues.

We will continue to keep you updated as these post-Election issues develop. Please reach out if you have any questions.

 

Emily Strachan
Associate
+61 2 9169 8417
[email protected]
Christa Lenard
Partner
+61 2 9169 8404
[email protected]
Shelley Williams
Partner
+61 7 3071 3110
[email protected]
Katie Sweatman
Partner
+61 3 9958 9605
[email protected]
Michael Stutley
Partner
+61 8 6381 7060
[email protected]