With the 2022 federal election looming, PCS examines some of the prominent industrial relations policies being put forward by the major parties and the implications for employers. Both the Liberal-National Coalition (the "Coalition") and Australian Labour Party (the "ALP") have put forward policies to protect employees and employers, boost wages and address unlawful practices in the workplace.
Both parties will focus on wage theft in the upcoming election. The position of the ALP is that it will make wage theft a criminal offence. The Coalition also recently proposed the criminalisation of wage theft for employers who systematically underpay workers in its Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021 ("Bill"). While limited sections of the Bill were passed by Parliament last year, the amendments in relation to wage theft were withdrawn. The Coalition has signalled that if re-elected it would seek to reintroduce the Bill.
It is likely that wage theft reforms will be on the agenda regardless of which party wins the upcoming election. It is a good time for employers to ensure their "house is in order" in anticipation of the continued focus on underpayments and wage theft. Employers should conduct necessary audits and review applicable enterprise agreements, modern awards, contracts and the National Employment Standards, to ensure pay requirements are being met.
The COVID-19 pandemic exposed the insecurity faced by many casual employees. Both the Coalition and ALP have proposed policies to provide improved job security for casual workers. The Coalition points to the significant changes made in relation to casual employment in 2021 to demonstrate its commitment to job security. These changes include an obligation on employers to offer permanent employment to casual employees in certain circumstances (read our article about the changes here).
The ALP has proposed to legislate an objective test to determine when a worker will be classified as a casual employee. It is anticipated that this definition will be narrower than the existing definition in the Fair Work Act 2009 (Cth) and, as a result, fewer employees will meet the casual employee definition. The ALP's position is that this will provide casual employees with a clear pathway to permanent work and job security.
Issues of gender equality have been central in the recent Australian political landscape and will remain so in the upcoming election. In 2021 the Coalition made a number of legislative amendments based on the recommendations contained in the Respect@Work report (read our article here). Many, but not all, of the report's recommendations were introduced. The ALP proposes to introduce all 55 recommendations including the introduction of a positive duty on employers to eliminate sexual harassment and sexual discrimination in the workplace. The ALP has also proposed to strengthen the Fair Work Commission's ability to order pay increases for workers in lower paid roles and female dominated industries.
In addition to the added protections for casual employees, the ALP is seeking to tackle insecure work and provide additional protections and rights to "gig economy" workers and labour hire workers. One change proposed by the ALP is that it will seek to ensure that workers employed through labour hire companies receive no less than workers employed directly. The ALP will also seek to limit the number of fixed-term contracts an employer can offer for the same role, with an overall cap of 24 months.
The Coalition has promised that it will double the maximum penalties that courts can award against unions in the construction industry under the Construction Industry (Improving Productivity) Act 2016 (Cth). The fines are designed to act as a deterrent to unions who, the Coalition argues, see the fines as a cost of doing business. This policy is particularly relevant given the recent decision of the High Court where it held that maximum penalties did not have to be reserved for the most serious breaches and could be used for lesser breaches to deter future behaviour.
The policy changes proposed by the Coalition and ALP will not fundamentally change the industrial relations system. However, regardless of the outcome of the election, there will be some significant changes in the industrial relations space which will affect employers, employees, workers and unions. We will continue to provide updates in relation to any legislative changes following the election.