The 2019 federal election promises to be the most significant election for employment and industrial relations since 2007, when Labor defeated the Coalition by promising to wind back the Coalition government's controversial WorkChoices legislation.
It's a story the Labor Party wants to repeat in 2019.
True, there are important differences from 2007. The economy is more subdued than it was in 2007, just prior to the global financial crisis. The Liberal Party no longer has a sweeping industrial relations agenda. In its six years in office, the Coalition has only tinkered around the edges of the Rudd Government's Fair Work Act 2009. At this election, the Coalition is largely content to maintain the status quo.
Nonetheless, the Labor Party thinks it's time for some major changes to Australia's employment laws.
What changes are they looking to make to employment law?
If Australia ends up with a Shorten Labor government, we can expect the Labor government to pursue the following changes:
1. The reinstatement of penalty rates
In the first 100 days in office, Labor has promised to reinstate Sunday and public holiday penalty rates, which the Fair Work Commission cut for the hospitality, retail, fast food and pharmacy industries.
2. Policies aimed at reducing the casualisation of the workforce, including:
- Inserting a statutory definition of who a casual employee is into the Fair Work Act 2009, making it harder for employers to engage employees as long term casuals.
- Providing all casual employees who work regular and systematic hours with the right to request to become permanent employees after 12 months of employment. Many employees already have a similar right under their Awards, but the Labor Party plans to incorporate the right into the Fair Work Act, so that it applies to all employees. The changes would also make it harder for employers to refuse an employee's request than is currently the case.
3. Increases to minimum wages
This is to be achieved by requiring the Fair Work Commission to ensure employees receive a 'living wage' when it sets minimum wages.
4. Preventing employers from unilaterally ending Enterprise Agreements when they expire
Where that would result in a reduction in employees' wages.
5. Establishing a new, same jobs, same pay law
This would require labour hire companies to pay their employees the same as they would be paid if they were employed directly by a host business.
6. Greater regulation for the 'gig economy'
Aimed at reducing instances where workers are classified as contractors rather than employees, and provided with significantly less pay and protections than they would have if they were classified as employees.
7. A suite of policies aimed at achieving pay equity between men and women
Including requiring companies with more than 1,000 employees to reveal their gender pay gaps.
8. Providing employees with ten days of paid domestic violence leave
Extending the five days of unpaid domestic violence leave that the current government recently introduced into the Fair Work Act.
The Coalition government, in comparison, is not bringing a suite of significant employment and industrial relations changes to the table. In the Coalition's six years in office, we have seen two major trends:
1. Increased regulation of the union movement
In particular through the establishment of the Australian Building and Construction Commission and the Registered Organisations Commission (both are likely to be replaced if Labor wins office).
2. An increased focus on the enforcement of employment laws
Including by giving the Fair Work Ombudsman significant coercive investigatory powers to pursue employers who act illegally.
Regardless of who wins office this election, employers can expect increased penalties for underpaying their employees and for engaging in sham contracting (where a business classifies workers as contractors when they should really be classified as employees).
We should also expect the casualisation of the workforce and the challenges of the gig economy to remain significant issues, regardless of who wins office.
One thing is certain, and that is that Australia's employment laws are going to be become more complex, with more obligations on businesses. Businesses cannot afford not to keep up to date with this dynamic and ever changing area of law.
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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Mitchell is the Managing Principal of our law practice.
He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.