What’s On The ALP’s Workplace Relations Agenda?

By Chao Ni, Principal, MST Lawyers

Ever wondered how workplace laws might change if the ALP wins the upcoming Federal Election?

Based on the ALP’s workplace/industrial relations policy taken from the ALP National Platform Consultation Draft, we believe employers should prepare for the following changes.

 

ALP Workplace/Industrial Relations Policy

What Changes Should Employers Plan For:

1.        

Setting uniform long service leave laws across all States/Territories by amending the National Employment Standards in the Fair Work Act.

  • The repeal of existing State and Territory long service leave laws, replaced by a worker-friendly national long service law.
  • The traditional idea of serving ten years before acquiring long service leave is likely to shift towards a shorter 7 year period.
  • Long service leave entitlements for casual and seasonal employees are likely to be more clearly stipulated.
  • Unpaid parental leave periods to count for the purpose of long service leave accrual.

2.        

Introducing 10 days of paid family and domestic violence leave entitlement through amending the National Employment Standards in the Fair Work Act.

  • The current entitlement of 5 days’ of unpaid family and domestic violence leave per year will be replaced with 10 days of paid family and domestic violence leave.
  • Possible extension of protection against discrimination at work to cover discrimination on the basis of a person who experiences family and domestic violence.
  • An outcry by small businesses concerning the cost of the disruption caused by the leave and potential rotting.
  • Actual rorting or suspected rorting of the entitlement could generate more workplace disputation, including dismissal related litigation.

3.        

Stopping corporate practices which are intended to circumvent workplace laws to the detriment of workers and extending responsibility (where appropriate) to “economic decision makers”.

  • Expanding liability to those with economic control (including both corporate entities and individuals) in relation to workplace law contraventions to ensure that employee back payments are prioritised.
  • Legislating to make “gig economy” platform providers and users being subject to Australian workplace laws.
  • Introducing stronger legal protections (or continuity of entitlements) for labour hire workers.
  • Making it more difficult to terminate enterprise agreements which provide for beneficial worker entitlements.
  • Making it easier to terminate “zombie” agreements which leave employees worse off than if they were paid under a modern award.

4.        

Strengthening laws on prohibition of sham contracting to reduce the widespread use of sham contracting.

  • Heavier scrutiny of contracting arrangements by the FWO, particularly involving sole traders.
  • Stronger penalties for sham contracting breaches.
  • More litigated cases involving the question of contractor vs employee.
  • Unsuspecting employers caught by surprise because contracting has always been the go-to arrangement for sourcing labour.

5.        

Introduction of an objective test for determining when a worker is a casual employee.

  • New definitions of “genuine casual employee” and “regular and systematic casual employee” inserted into the Fair Work Act 2009.
  • The Federal Court handing down a decision on what constitutes regular and systematic engagement that will become the new leading authority on the subject matter.
  • Class actions by casual employees looking to claim permanent employee entitlements (e.g. payments for annual leave, personal/carer’s leave, compassionate leave, absence on a public holiday, in lieu of notice of termination and redundancy pay).
  • Reduction in casual positions across a wide range of industries and conversely the creation of more part time /full-time positions (with more casual positions likely to be lost relative to the number of new permanent positions created).

6.        

Increased penalties for employers and related entities that systematically underpay workers and increasing funding for the Fair Work Ombudsman a funding boost.

  • A better resourced FWO will lead to more compliance and enforcement activity, including civil proceedings.
  • More FWO civil proceedings may lead to the Courts being more acclimatised to issuing larger civil penalties to non-compliant employers.
  • An increase in self-audit initiatives and workplace law compliance levels.
  • The franchisor liability provisions under the Fair Work Act (introduced by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017) may finally be tested in Court.

7.        

Protection of employees’ right to access union representation at work in reasonable locations at appropriate times.  The ALP will ensure delegates are able to organise and effectively represent employees, including paid training leave.

  • Potential expansion of union rights to access workplaces through amending right of entry laws.
  • Outcry from business organisations concerned about increased disruption from union activities.
  • Expanded delegate duties could lead to an increase in the number of workplace disputes between employees and management.
  • An increase in union membership and enterprise agreement bargaining.

8.        

Introduction of laws to ensure employees have access to adequate information on their workplace rights, including their right to join a union and relevant industrial agreements, as well as occupational health and safety and other employment information at the commencement of their employment and on an ongoing basis.

  • New additional content likely to be added to the Fair Work Information Statement

9.        

Abolishing the Australian Building and Construction Commission and moving all disputes relating to workplace relations in the building and construction industry to be dealt with by the Fair Work Commission.

  • A more powerful (and possibly more militant) construction union.
  • Potential increase in corruption and criminal conduct by union and company officers.
  • In the event of a slowing down of the building and construction industry (and ancillary industries), there could be wider negative economic implications and challenges relating to attracting investment, infrastructure, housing and population growth issues.

If you enjoy speculating on the upcoming election and how it might affect your business, please feel free to contact the MST Lawyers Employment Law team by email or call +61 3 8540 0229 to speak with a specialist employment lawyer.