Australia: The Fair Work Act and WHS Act: Should they go in the recycling bin with used wrapping paper?

WHO SHOULD READ THIS

  • All Australian workplace participants, particularly in-house lawyers and professionals with an Industrial, Employment or Safety focus.

THINGS YOU NEED TO KNOW

  • 2019 is positioned to be the biggest year in Employment, Industrial and Safety legislative change in a decade.

WHAT YOU NEED TO DO

  • Keep your business aware of changes as they occur, and understand how to transition your business to ensure compliance with new laws.

2019 is positioned to be the biggest year in Employment, Industrial and Safety legislation change in a decade. The Federal Election, weak wage growth, the 'gig' economy and a spike in workplace deaths are creating a 'perfect storm' for legal change. Our team discuss potential challenges, and likely solutions, to these disruptions in Australian workplaces.

What has changed?

The Fair Work Act has been the core industrial law governing Commonwealth Government and private sector employers for over a decade and, despite changes in Government (and six changes in Prime Minister!), the National Employment Standards and remedies available for unfair dismissal and general protections remain largely unchanged. Similarly, the Model Work Health and Safety Acts have seen limited legislative amendment, despite multiple changes in State and Territory governments.

However, the familiarity of employers with these laws stands ready for significant change due to a combination of the following trends:

  • a possible Labor Federal Government, signalling the potential for changes to legislation that it drafted 10 years ago;
  • a significant downturn in private sector employers engaging in enterprise bargaining;
  • an influx of innovative contractor engagement platforms (think Uber, Airtasker, and Airbnb);
  • weak wage growth in Australia, despite market improvements;
  • high profile workplace deaths (think Dreamworld);
  • labour hire licensing schemes being introduced in some States; and
  • the Full Federal Court casting doubts on a long held assumptions regarding the status of casual workers.

Not since the opposition to Work Choices, has the Australian industrial landscape seen such judicial, government and media interest. A Shorten Federal Government will likely see a combination of the above issues as matter for legislative reform.

What could change?

The above trends are complex, and a legislative response will need to be carefully implemented. That said, there are number of potential changes that may be priorities for the Parliament. Legislative change may result in:

  • a greater emphasis on the traditional employment relationship (i.e. greater regulation of labour hire and the gig economy, with more incentive to engage employees);
  • a simplification of enterprise agreement approvals by the Fair Work Commission (FWC);
  • the Parliament, rather than the FWC, taking a greater role in setting minimum wages and penalty rates;
  • greater coverage of the Fair Work Act to resolve issues of casualisation of the workforce, management of contractors and the gig economy (could the WHS definition of 'worker' be adopted in the Fair Work Act?);
  • expanded union powers in both the Fair Work Act and Model WHS Acts, allowing for less restrictive right of entry powers and easier ways for unions to engage with the workforce;
  • less restrictions on unfair dismissal applications (i.e. probationary employees, no cap on compensation, penalties for employer, application to contractors); and
  • industrial manslaughter to become a feature in all Model WHS Acts.

What does this mean?

In short, employers must stand ready to manage business and usual industrial issues, whilst keeping themselves aware of changes as they occur, and understanding how they might transition their business to comply with any new laws.

Our McCullough Robertson Employment Relations and Safety Team (ERS) are committed to keeping our clients up to date with changes as and when they occur. We have a variety of communication methods to suit your preferences, including:

  • News and insights – read our latest ERS updates or confirm your subscription preferences to ensure you receive our articles directly to your inbox;
  • ERS seminars and forums  – register your interest for our upcoming events near you;
  • ERS expertise and client results – click to view our team expertise and how we have helped some of our clients in this area; or
  • Follow our companyLinkedIn to stay informed of ERS industry news, articles and event registrations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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