Federal Election 2022 – Workplace Relations Reform Agendas of Coalition and ALP

Articles Written by Jan Dransfield (Partner), Norah Chafardet (Senior Associate), Joseph El Hagg (Law Graduate), Rachel Zeng (Law Graduate)
Hand Placing a piece of paper into a ballot box

With the 2022 federal election this week, we summarise key workplace relations policies put forward by the major parties and implications for employers. The Liberal-National Coalition (Coalition) and Australian Labor Party (ALP) have put forward policies to protect employees and employers, and address unlawful practices in the workplace. The capacity of the ALP and the Coalition to enact legislation to give effect to its proposed industrial reform agendas will of course depend on the composition of the Federal Parliament following Saturday’s election. 

 

Topic

Labor

Coalition

Casual Employees

Proposes to legislate a “fair, objective test to determine when a worker can be classified as casual, so people have clearer pathway to permanent work”. Will restore the common law definition of casual workers in place prior to recent changes to the Fair Work Act (2009) (Cth) (FWA) and the High Court’s decision in Workpac v Rossato [2021] HCA 23.

As the FWA currently stands, a “casual employee” is an employee who has “no firm advance commitment as to the duration of the employment or the days (or hours) the employee will work”. The ALP proposes to amend this definition to reduce the focus on the initial employment contract, and instead focus on an employee’s pattern of work.

This will increase the likelihood that employees working regular shifts for a defined period will be considered part-time or full-time, and not casual employees. It is intended to provide casual employees with a clearer pathway to permanent employment.

Points to the significant changes made in relation to casual employment in 2021 to demonstrate its commitment to job security. These changes included an obligation on employers to offer permanent employment to casual employees in certain circumstances.

Gig Workers

Has suggested expanding the jurisdiction of the Fair Work Commission (FWC) to allow it to make orders regarding the minimum standards of new forms of work, such as gig work, and to determine what rights and obligations may/may not apply to gig workers.

N/A

Job Security

Has committed to amending the FWA to enshrine ‘secure work’ as an additional objective. This would require the FWC to consider job security, among other existing objectives, in its decision making.

N/A

Limiting use of Fixed Term Contracts

 

Limit the number of consecutive fixed term contracts an employer can offer for the same role or a maximum duration, up to a maximum cap of 24 months (including renewals). Once this cap is reached, the employer would be required to offer the worker a permanent position. There will be a mechanism for exceptions in limited circumstances.

N/A

Enterprise Bargaining

Has indicated support for the following:

  • Providing the FWC with broader powers to arbitrate disputes in relation to, or arising in the course of, enterprise bargaining;
  • Preventing unilateral termination of collective agreements if termination would reduce employee entitlements; and
  • Improving access to collective bargaining, potentially by introducing multi-employer bargaining.

Has restated its commitment to the Omnibus Bill reforms proposed in early 2021 and intended to be incorporated into the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020 (Cth). This included proposals to:

  • Limit the ability for external parties to intervene or be heard in enterprise bargaining matters;
  • Implement a 21-day approval process for enterprise agreements;
  • Enable the FWC to more easily vary enterprise agreement decisions to correct ‘minor errors’;
  • Deem certain enterprise agreements made before the FWA commenced operation as automatically ceased; and
  • Enable franchisees to opt-in to a single enterprise agreement that would cover a larger group of employers operating under the same franchise.

It is not clear which reforms will be revived by the Coalition. The Industrial Relations Minister, Michaelia Cash, said that there would be no changes to the “better off overall test” (BOOT) – a key safeguard for employees – following which the Prime Minister, Scott Morrison, reiterated that there would be no “major” changes in relation to this.

Wage Theft

Both the ALP and Coalition have made commitments to legislate to make wage theft a criminal offence and improve processes for recovering unpaid wages.  Specifically, the Coalition will introduce new Federal offences for deliberate underpayment with a maximum jail term of four years and fines of up to $1.1m for individuals and $5.5m for companies.

Gender Equity

Has stated it will establish a “Pay Equity Unit” within the FWC and reform the equal remuneration provisions in the FWA to strengthen the FWC’s ability and capacity to address gender pay inequality. Proposals include:

  • Make gender pay equity an object of the FWA.
  • Fully implement all 55 recommendations of the Respect@Work: Sexual Harassment National Inquiry Report 2020 (discussed below). 
  • Legislate to require companies with more than 250 employees to publicly report their gender pay gap.
  • Prohibit pay secrecy clauses and give employees the right to disclose their pay if they choose to, including to their colleagues.
  • Address the gender pay gap in the Australian Public Service.
  • Strengthen the ability and capacity of the FWC to order pay increases for workers in low paid, female dominated industries.

Has, in general terms, restated its previous commitment to building women’s workforce participation and closing the gender pay gap, stating the current Government has the record for bringing the pay gap down to its lowest level.

Will commit to a $38.6 million initiative to provide wrap-around support to boost the number of women in non-traditional roles who start in higher-paying occupational roles listed in the Australian Apprenticeship Priority List.

 

 

Superannuation

Will enshrine superannuation in the National Employment Standards (NES), which would allow employees to directly pursue employers for unpaid superannuation contributions as an entitlement, as well as implement targets on the Australian Taxation Office (ATO) to improve the recovery rate for unpaid superannuation.

Individual employees currently do not have standing under superannuation guarantee legislation to pursue underpayment of superannuation contributions and need to rely on the ATO because of the way the superannuation guarantee charge operates.  Including superannuation as an entitlement in the NES was a recommendation of the March 2022 Report from the Senate inquiry into unlawful underpayment of employees' remuneration.

Does not support the ALP’s proposal to include superannuation in the NES. However, the Coalition has announced that it will legislate to allow first home buyers early access to 40% of an individual’s superannuation holdings, up to a maximum of $50,000, to fund the purchase of a new or existing home (Super Home Buyer Scheme). According to the Coalition’s policy, when employees sell the property, the amount invested will be returned to their superannuation fund, plus a share of any capital gain from the transaction. The Super Home Buyer Scheme will start by 1 July 2023.

Leave Entitlements (paid domestic violence leave and parental leave)

Proposes 10 days of paid family and domestic violence leave be included in the NES.

Will consult with States and Territories about extending portable leave schemes for annual, sick and long service leave, allowing workers to carry various leave entitlements from one job to another.

Will consider whether to require superannuation contributions for Paid Parental Leave payments.

The FWC has recently endorsed the ALP’s policy in its Family and Domestic Violence Leave Review [2022] FWCFB 2001, reaching a provisional view to extend 10 days’ paid family and domestic violence leave to award covered employees. In a landmark ruling, a Full Bench of the FWC expressed the provisional view that the entitlement should be paid at the base rate to permanent award covered employees.

May implement casual sick pay leave like the kind piloted in Victoria, which allows eligible casual and self-employed workers to receive carer’s and personal leave payments.

Has declined to endorse the FWC’s provisional view extending 10 days’ paid domestic leave to about 2.6 million award-covered workers.

Will create a combined paid parental leave, termed ‘dad and partner pay’, which will create a flexible 20-week entitlement that can be shared and divided between parents as needed. Single parents will also have an additional two weeks of leave.

Will also extend the work test rules so more women are eligible for Parental Leave pay.

Will consult on amendments to NES redundancy payment calculation methods to ensure redundancy payments “more fairly reflect average working hours over the course of a person’s employment”.

Will consult on whether to extend an unpaid leave entitlement to foster and kinship carers.

Discriminations and Harassment

Will fully implement all 55 recommendations of the Sex Discrimination Commissioner’s Respect@Work Report.

Will legislate to strengthen laws that prevent sexual harassment and make it clear that employers have a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible.

Will work with the Workplace Sexual Harassment Council, employers, workers, unions and legal experts to finalise and implement stronger laws as a matter of priority.

Has committed $24m to ensure that Women’s Centres in Australia are properly funded.

An investment of $1.27m will be made to establish a one-stop shop within the Australian Human Rights Commission to provide information about victim’s rights, options for making complaints, and referrals to support services.

The Australian Human Rights Commission will receive $1.5m to hear and confidentially document the experiences of victims of historical workplace sexual harassment.

Will work to ban religious discrimination as a standalone legislation, which may protect LGBTIQ students and teachers.

Will continue work to implement 43 of the 55 recommendations of the Respect@Work Report with a $70m commitment.

Will invest $18.5m to support the Workplace Equality Agency to progress gender equality in Australian workplaces and implement the recommendations of the review of the Workplace Gender Equality Act 2012.

Will invest $4.1m in 2022-2023 to progress the Independent Review into Commonwealth Parliamentary Workplace’s recommendations. Measures include $2.6 million to design an Office of Parliamentarian Staffing and Culture and begin establishing an Independent Parliamentary Standards Commission.

 

 

Awards

Will empower the FWC to oversee an industry-based system for selecting default funds in modern awards.

Will work to bring back the Omnibus Bill proposals, including:

  • Allowing businesses to allow employers to have the flexibilities they had during the temporary JobKeeper provisions. The Omnibus Bill proposes to support businesses in the hardest hit industries such as hospitality by creating ‘simplified additional hours’ agreements’ enabling business to ‘flex-up’ part-time workers’ hours without having to pay overtime, provided the employee agrees.
  • Allowing businesses to change an employee’s duties or location of work.

These changes will not be available for all awards. However, if proven successful and beneficial, changes will be considered across a broader range of modern awards.

Greenfield agreements

N/A

Has promised the mining sector that they will try to legislate on six-year Greenfields workplace agreements with guaranteed annual pay increases.

Penalties and union regulation

N/A

Following the High Court decision in Australian Building and Construction Commissioner v Pattinson [2022] HCA 13 which stated that maximum civil penalties for breaches of the FW Act are not just for ‘worst’ conduct, the Coalition has proposed to double the maximum penalties for serious, deliberate and repeated breaches of the law.

Wage Outcomes

In terms of wage outcomes, has proposed a 5.1% increase to the national minimum wage, with the goal of keeping wages in pace with recent surges in inflation.

As part of its aged care policy platform, has also promised to provide real wage increases for aged care workers. The Health Care Services Union and the Australian Nursing and Midwifery Federation have brought a case before the FWC to seek to vary several Awards to increase pay for aged care workers by 25 per cent. Has also promised to put a supporting submission to the FWC, and fund the outcome of this case if it is successful.

Has rejected the ALP’s proposal to increase the minimum wage, citing inflation concerns.

The Aged Care Services Minister has backed workers push for wage increases, and has maintained that the Coalition’s funding model would sufficiently cover increased wages should the FWC decide in favour of the unions. The ALP has criticised the Coalition for refusing to put in a supporting submission to the FWC.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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