Secure jobs: For who and how?

In a speech on 10 February 2021, Anthony Albanese MP revealed the Australian Labor Party’s (ALP) latest federal industrial relations policy, dubbed the “Secure Australian Jobs Plan”.

The policy centres around the core concept of “job security”, representing a significant change of tack from the Federal Opposition’s previous “Change the Rules” policy under Bill Shorten which was rejected at the last Federal Election.

In part the “Secure Australian Jobs Plan” provides the ALP’s response to the Coalition Government’s industrial relations omnibus amendment bill, which was introduced to the Commonwealth Parliament late last year. It seeks to cast the Coalition Government reforms as undermining job security but also proposes tighter regulation to entrench permanent employment and generic terms and conditions of employment as the dominant model of workplace engagement in the Australian economy.

A breakdown of the 8 elements of the ALP’s “Secure Australian Jobs Plan” is set out below.

1.     Inserting “job security” into the FW Act

The ALP proposes to legislate the concept of “job security” as a key objective of the Fair Work Act 2009 (Cth) (FW Act). The stated intention of this is that the Fair Work Commission (FW Commission) would be required to explicitly consider “job security” in its decisions.

No further details are offered as to what the definition of “job security” will entail or how much it will clash with management prerogative.

2.     Rights for gig economy workers

The ALP considers that the definition of “employee” is narrow and outdated resulting in workers in the “gig” and “demand” economies being excluded from employment protections.

Mr Albanese identified that these workers are denied award benefits, superannuation, the right to collectively bargain and unfair dismissal protections and are often required to accept below minimum wage rates to perform insecure piece work.

To remedy this, the ALP proposes to pass legislation to ensure more Australian workers have access to employment protections and entitlements.

This legislation would:

  • extend the powers of the FW Commission to extend to “employee-like forms of work”; and
  • allow the FW Commission to make orders for minimum standards in new forms of work.

3.     Portable entitlements for workers

According to Mr Albanese, the COVID-19 pandemic illustrated the need for casual, contractor and gig workers to access paid personal/carer’s leave.

States such as Victoria and Queensland have recently taken steps to provide paid sick leave entitlements to those workers and establish portable long service leave schemes.

However, the ALP’s proposal is to implement a national approach to portable entitlements for annual leave, sick leave and long service leave for workers in “insecure work”. This would be developed in consultation with state and territory governments.

No further details are provided on how this policy would work in practice but it would likely result in a system where employers contribute to a third party fund which distributes leave entitlements to eligible employees. For many employers this will increase the compliance burden as their leave arrangements operate across two systems.

4.     Casual workers

The ALP claims that 1 in 4 workers are engaged as casual employees and in certain industries, such as hospitality, 80% of the 800,000 person workforce are casual.

To remedy the purported issues of “insecure work” in such industries, the ALP proposes to legislate a test to determine when a worker can be classified as a casual.

However, no details are provided as to the actual content of this test, save for Mr Albanese’s assertion that: “Flexibility must come with security, not at the expense of it. Flexibility must benefit workers as well as employers.”

The ALP does not appear to propose adopting the definition of casual employment from the WorkPac Pty Ltd v Rossato [2020] FCAFC 84 decision. However, the ALP also does not appear to disagree with the approach taken by the Full Court of the Federal Court of Australia in that decision.

5.     Regulating labour hire

It is proposed that labour hire providers should be regulated to uphold the principle of “same job, same pay”. The ALP proposes to enshrine this principle in legislation. This will likely have a significant impact on the future viability of the labour hire industry and employees who work in it.

6.     Limiting consecutive short-term contracts

The ALP would limit the number of consecutive fixed term contracts an employer can offer for the same role to no more than 2 consecutive contracts or for 24 months, whichever comes first.

Once that limit is reached, the employer would be required to offer a permanent position for that role.

This is an interesting reform as genuine fixed term employment contracts are relatively scare in modern workplaces and recent FW Commission decisions have significantly reduced employer reliance on maximum term contracts.

7.     Providing for more secure work in the public sector

The ALP would conduct an audit of employment within the Australian Public Service with a view to promoting more secure employment where temporary forms of work, such as outsourcing, short term contracts or “offshoring” are being used inappropriately.

8.     Prioritising Government contracts for organisations that offer secure work

The ALP would ensure that the Commonwealth Government prioritises bids and tenders from companies and organisations that provide secure work for employees when purchasing or seeking goods and services.

Other ALP policy proposals

Mr Albanese also noted 2 additional ALP policies which did not appear to fit within the 8 elements of the “Secure Australian Jobs Plan”. These include:

  • Making the FW Commission the primary body in Australia’s IR system by abolishing the Registered Organisations and the Australian Building and Construction Commissions; and
  • Ensure the superannuation guarantee increases from 9.5% to 12% as legislated.

Conclusion

While the stated aims of the ALP’s industrial relations policy clearly target emerging or existing issues in Australia’s industrial relations framework, the speech offers little in the way of detail.

No definitions have been proposed for the key concepts of “job security”, “casual employment” and “employee-like forms of work” under Labor’s plan, nor has the ALP set out how the FW Commission’s powers would be expanded to fulfill the policy objectives.

Depending on how these details are developed, they are likely to limit options for types of workplace engagement that are not traditional permanent employment underpinned by generic terms and conditions. The devil will be in the detail which is yet to be released.

Duncan Fletcher
Partner
+61 8 6381 7050
duncan.fletcher@kingstonreid.com

Oliver Marshall
Lawyer
+61 8 6381 7056
oliver.marshall@kingstonreid.com