Victoria’s push to protect contract workers

On 17 February, Tim Pallas, Victoria’s minister for industrial relations, introduced the Industrial Relations Legislation Amendment Bill 2021.

Pallas says that the Bill will “have no adverse effect on the rights of employers, worker or the community as a whole” but a number of the amendments will enhance individual rights.

The Bill proposes amendments to a number of Victorian Acts, including the:

  • Equal Opportunity Act 2010
  • Inquiries Act 2014
  • Labour Hire Licensing Act 2018, and
  • Long Service Leave Act 2018

Some of the proposed amendments seek to implement recommendations made by the Victorian Inquiry into Labour Hire and Insecure Work. That inquiry was set up in 2015 to investigate the practices of labour hire companies, insecure work, sham contracting, and the abuse of visas to avoid workplace laws.

Some of the key recommendations contained in the final report of the Inquiry were to:

  • set up a licensing scheme to regulate labour hire operators
  • develop a voluntary code of conduct for the labour hire industry
  • advocate for a national licensing scheme for labour hire operators, and
  • use Government procurement to promote secure work practices and ethical employment.

There has been, and it appears that there will continue to be, an increasing focus on improving the rights and entitlements of contract and gig workers.

In recent times, on-demand workers have been in the limelight regarding whether they should secure “employee status”. A UK Supreme Court ruled that on-demand drivers working for Uber in 2016 were employees which has sparked talks that the decision may impact the Australian courts views on whether on-demand drivers are employees.

Whilst workplace laws are primarily made at a Federal level, the Bill introduced in Victoria shows that the Victorian government is pushing for reform at the state level.

The effect of the proposed amendments

The effect of the amendments will be to give contract workers a suite of additional rights and entitlements under Victorian industrial relations legislation, including:

  1. Protection from discrimination on the basis of employment activity (for example, contract workers making a reasonable request for information regarding their employment entitlements) under the Equal Opportunity Act 2010. This means that contract workers will be afforded the same protection as directly engaged workers.
  2. Principals being required to make reasonable adjustments to the workplace for a contract worker with a disability under the Equal Opportunity Act 2010. This will extend the entitlement which already applies to directly engaged workers.
  3. Protection against detrimental action (including dismissal) under the Inquiries Act 2014 if the contract worker gives information to a Royal Commission, Board of Inquiry or a Formal Review.

A contract worker is defined in the Equal Opportunity Act as a person who does work for a principal under a contract between the worker’s employer and the principal.

For the purposes of the Inquiries Act, a contract worker is a person who does work for the business or other undertaking under a contract between the worker’s employer and the person who conducts the business or other undertaking, or, a person who does work for the business or other undertaking for fee or reward on the person’s own account (other than a person who conducts the business or other undertaking).

The Bill also proposes a number of other changes, including:

  • A tiered system in the Labour Hire Licensing Act 2018 for businesses applying for a labour hire licence for the purposes of determining the applicable licence fee. This means that businesses, at the time of making an application, will be required to provide details of the estimated turnover of the business for the 4 quarters immediately before the date of the application.
  • Giving the Labour Hire Licensing Authority the power, in special circumstances, to waive and refund fees (in whole or in part).
  • Repealing the provisions in the Long Service Leave Act 2018 which deal with the offence of an employer not keeping long service leave records in the approved form.
  • Clarifying that the offence relating to non-payment of long service entitlements is a continuing offence.
  • Extending the prohibition from using common law contracts to annul, vary or exclude provisions of the Long Service Leave Act 2018 to deeds of settlement.
  • Transferring various powers previously exercised by the Secretary to the Wage Inspectorate Victoria which will be established as a statutory authority under the Wage Theft Act 2020 from 1 July 2021.

The transfer of powers to the Wage Inspectorate demonstrates a shift in attitude around enforcement. The body will enforce Victorian laws dealing with child employment, long service leave and independent contractors in the transport and forestry sectors.

Businesses should expect to see a more proactive approach taken by the Wage Inspectorate which has been specifically established to investigate and enforce non-compliance with laws, as compared to the approach previously taken by the Department.

We expect the proposed legislative amendments to pass, and if so, will be due to commence on 1 July 2021.

Katie Sweatman
Partner
+61 3 9958 9605
katie.sweatman@kingstonreid.com

Sevasti Xanthos
Lawyer
+61 3 9958 9609
sevasti.xanthos@kingstonreid.com