Federal elections typically offer voters a choice between the Coalition and Labor’s competing industrial relations policies. In this update, we will analyse the likely impact on employment law depending on the outcome of the election.
Federal elections typically offer voters a choice between the Coalition and Labor’s competing industrial relations policies, and despite both parties having modest ‘small-target’ policy offerings at this election, there are important differences between the two parties on industrial relations.
With the official unemployment rate at 4% and trending down, the Coalition is playing up its record on the employment front. However, Labor says that workers are not receiving the full benefits of a strong economy, and that too many Australians are in insecure work.
During the current term of the Morrison Government, employers welcomed the Government’s insertion of a definition of casual employment into the Fair Work Act 2009 (Cth), but this was criticised by Labor. Further, the High Court’s decisions on casual employment and independent contractors were both positive decisions for employers but were heavily criticised by the labour movement.
Labor has promised that an incoming Labor government would reverse these changes, along with introducing a range of new legislation to provide workers with more secure work. These changes include:
- Amending the Coalition’s statutory definition of ‘casual employment’ in the Fair Work Act, which we expect would substantially restore the position prior to the Coalition’s amendment of the Act and the High Court decision in Workpac v Rossato.
- Bringing the ‘gig economy’ under increased regulation by giving the Fair Work Commission powers to make orders for minimum standards for gig and other ‘employee-like’ workers. We anticipate that this may be achieved by enabling the Fair Work Commission to make orders around pay and conditions for independent contractors under Award or Award-like instruments.
- Introducing ‘same-job, same-pay’ legislation to ensure that workers employed by labour hire companies receive the same pay as equivalent employees employed directly.
- Limiting the use of rolling fixed term contracts, so that employers can only employ employees on a maximum of two consecutive fixed term contracts, for a maximum of two years.
- Implementing a national labour hire licencing scheme (similar to the one already operating in Victoria).
- Consulting with state and territory governments on the possible introduction of portable entitlement schemes for particular industries. Victorian employers in the construction, security, contract cleaning and community services sectors will be familiar with portable long service leave schemes, but an Albanese government may introduce similar schemes nationally.
Other changes proposed by Labor include the abolition of the Registered Organisations Commission and the Australian Building and Construction Commission, which Labor says unfairly target the union movement, the criminalisation of wage theft at a federal level, and encouraging the Fair Work Commission to increase wages in low-paid, female dominated industries.
Whilst the Coalition is not taking an ambitious industrial relations agenda to the election, it does plan to reintroduce much, if not all, of those parts of its omnibus industrial relations legislation that it shelved in early 2021 after meeting resistance in the Parliament. If the Coalition is returned, we expect to see:
- An increased push for Award simplification. This is likely to include allowing employers to provide part-time employees with additional hours without needing to pay overtime rates, where the employee’s weekly hours are less than 38 hours; and
- The simplification of the process for making Enterprise Agreements, though the Government has ruled out making any major changes to the ‘Better Off Overall Test’.
Whilst we will not predict the outcome of the 2022 election, we can safely predict that industrial relations will be a battleground in the next Parliament, and employers will need to remain abreast of the developments. As always with industrial relations, watch this space.
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The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
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Samuel Ellemor is a Senior Associate at Sharrock Pitman Legal practising in Employment Law, Commercial Law, and Charities & Not-for-Profit Law. For further information, contact Samuel on his direct line (03) 8561 3316.