Tuesday, 7 May 2019

Election Update: What Would Bill Shorten Mean For Australian Workplaces?

The only industrial relations policy that appears to be getting any significant attention in this campaign is the ALP’s policy to protect penalty rates. However, the ALP is proposing far more significant changes that will change the industrial relations landscape. From an employer perspective, these are not changes for the better.

The irony, of course, is that the existing Fair Work Act is ALP legislation. The current Act is predominantly the same legislation adopted by the former Rudd and Gillard ALP Government.

While the Liberals have made some amendments to the Fair Work Act, the key changes have enhanced protections and benefits for employees. This includes the Liberal Government introducing additional protections for vulnerable workers, and introducing enhanced National Employment Standards including family and domestic violence leave and rights for carers.

Reversing Decision of Independent Umpire

It is well known that the ALP has committed to reversing the decision made by the Fair Work Commission back in February 2017, which was set to reduce weekend penalty rates in some awards. The Fair Work Commission made these changes after considering detailed evidence and submissions – including responses from Unions.

In condemning the decision, the ALP is in effect condemning the independent process put in place by the Rudd and Gillard ALP Government.

In addition to reversing these past decisions, the ALP has indicated it will legislate to prevent the Fair Work Commission varying awards if the variation resulted in a reduced take home pay for any employee.

Both these policies significantly undermine the independence of the Fair Work Commission.

Labour Hire Licensing – Watch the Red Tape

Just like the State Labor Governments in Queensland and Victoria, if elected the Federal ALP have indicated they will introduce a national scheme to licence labour hire providers in the country. This is further red tape and cost for both labour hire businesses, and companies that utilise labour hire workers.

The ALP has also indicated it would introduce legislation which requires businesses that engage labour hire workers to provide those workers with the same terms and conditions as their own employees. To date, many attempts by unions to include terms regarding conditions for labour hire workers in enterprise agreements have been unsuccessful on the basis that they are not ‘permitted matters’ – this change would dramatically alter the landscape and reduce many of the benefits employers enjoy in utilising more flexible agency workforces.

Casual Work

‘Insecure work’ has long been on the ALP’s agenda. In addition to creating a right for all casual employees to convert to permanent after 6 months, under the ALP’s policy, engagement of casual workers would be impacted by the introduction of an objective statutory test that would be the benchmark for establishing whether a worker is or is not really a casual. While this may avoid the issues seen last year in the WorkPac case, there are concerns that this test would result in the recognition of a large proportion of ‘casual workers’ as permanent employees.

Additionally, the ALP has previously indicated that it would move to disallow the amendment to the regulations passed by the Government last year that enabled businesses to off-set annual leave entitlements against casual loading already paid which could impact the flexible benefits to employers of the casual workforce and create enormous costs in relation to workers found to be permanent and entitled to benefits such as accrued annual leave and personal leave.

Is there a future for the Gig Economy?

The ALP has further signalled that they are looking into ways to extend the operation of the Fair Work Act to include workers in the gig economy, such as Uber drivers or Menulog delivery people, and even considering allowing independent contractors to collectively bargain.

No-one is forced to work in the “gig economy”. The rise of the “gig economy” is enabling many workers to work flexibly (including both younger workers, and people transitioning to retirement). It is also allowing many unskilled individuals to earn a living. The ALP’s policy to increase regulation in this area is a backward step.

Multi-Enterprise Bargaining

Under an ALP Government, collective bargaining itself may be reworked to allow industry-wide bargaining in order to swing the balance of power, particularly in lower paid industry sectors. This would mean that employers wouldn’t just be bargaining with their own employees. Rather, they would be effectively forced to bargain with not only all employees in the sector but their competitors as well – as an individual business’ own bargaining interests may be tied to other employers who have different goals in the bargaining process. This is potentially taking industrial relations back to the pre-1990’s and pattern bargaining.

Arbitration Power for Commission on Flexible Working Arrangements

The ALP has also stated it will give the Fair Work Commission the power to arbitrate on disputes about flexible working arrangements. Currently, employers have to give genuine consideration for requests of carers to work flexibility, including providing reasons if a request is not granted on the basis of reasonable business grounds. The ALP proposes to make these operational decisions subject to review by the Fair Work Commission.


New Criminal Liabilities

The ALP will likely seek to introduce new criminal offences of ‘wage theft’ as proposed by the Labor government in Victoria, vastly expanding the potential liability of employers in the event of contraventions of workplace laws.

“Putting down” the Construction Industry Watchdog

The Australian Building and Construction Commission (ABCC) is the national construction watchdog and has played a key role in investigating and prosecuting some of the CFMEU abuses in the construction industry.

The ALP has made it clear it will abolish the ABCC, but hasn’t indicated what it will replace it with.

It is interesting to note that the ALP’s Shadow Minister of Employment and Workplace Relations is Brendan O’Connor – who happens to be the brother of Michael O’Connor, the National Secretary of the CFMMEU.

The Campaign for Bill

The Unions are putting huge resources into the Federal Election. The ACTU are running a “change the government, change the rules” campaign. This involves a major media campaign as well as an on the ground campaign that is targeting 16 marginal seats around the country. The ACTU has indicated 2,500 union staff members are supporting the ALP during the election as “volunteer” campaigners.

Clearly the ACTU would like to see former senior union official Bill Shorten elected. He would be the most senior union official to hold this position since Bob Hawke.

Of course, even if the ALP forms Government, then unless they have a friendly Senate they may be unable to implement their policy agenda.

Learn more

The ALP policies, when analysed carefully, may move Australian industrial relations backwards to a centralised, inflexible and adversarial system.

This month HR Legal is conducting seminars about the potential effects of these proposed changes, and other recent changes in workplace laws. For more information, click here.


This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.