A federal election is due by mid-2019 and it is shaping up to be one where, for the first time in a long time, there might actually be substantive differences between the employment and labour policies of the Labor Party and those of the Liberal National Coalition. Were Labor to win, and have a Senate that is more amenable to its workplace relations policies than the current Senate is to the Coalition Government’s policies, what might this mean for Australia’s employers and 12.5 million workers?

Better protection of gig economy workers

UberEats and Deliveroo drivers are examples of workers who are part of the on-demand gig economy which has proliferated in recent years. (The gig economy describes digitally-enabled marketplaces which connect individual workers to end-users seeking specific services).

Following claims of gig workers being underpaid and poorly treated, the Victorian Labor Government will launch the first Australian inquiry into gig workers, to be chaired by former Commonwealth Fair Work Ombudsman, Natalie James. This inquiry will:

  • examine allegations that contracting arrangements are used to avoid workplace laws and other statutory obligations;
  • review the application and effective enforcement of workplace laws on gig workers, such as workers’ compensation, superannuation and health and safety laws; and
  • examine how gig workers are regulated nationally and internationally, and Australia’s obligations under international law.

A final report is expected to be delivered to the Victorian Government in late 2019 and may well provide further justification for a Federal Labor Government to tighten up provisions under the Fair Work Act 2009 to better protect workers in the gig economy.

Modernising workplace laws: Future of Work Report Recommendations

In September the Labor-led Senate Select Committee on the Future of Work and Workers published their findings and recommendations on the future of work and workers in Australia.[1] The report makes 24 recommendations which focus on modernising workplace laws and planning for technological and demographic change.

The recommendations are largely geared to protecting employees and, unsurprisingly given the make-up of the Committee, align with Labor’s legislative reform agenda by seeking:

  • legislative protection for workers in non-standard employment arrangements, including gig workers, labour hire workers, interns and workers engaged under sham contracts;
  • more support for ‘at risk’ workers, including aging, female, indigenous and migrant workers;
  • greater consultation between employers, workers and unions regarding employment conditions and technological changes to the workplace; and
  • the establishment of a Future Work Commission to coordinate policy development to tackle the rising threats of automation and technological change.

Clarifying when a casual employee is really a casual employee

The uncertain legal status of casual employees who are not employed on an irregular, intermittent and unpredictable basis continues to cause headaches for employers.[2] Labor is committed to setting an ‘objective test’ for determining when a casual is really a casual, which would at least provide some certainty, even if one did not agree with the test.

A Federal Labor Government would certainly not support any moves to introduce a new category of “perma-flexi” casuals, recently sought by some employer organisations to prevent so-called “double-dipping” by long term casual employees (who receive a casual loading in lieu of paid leave entitlements and then claim paid leave). To the contrary, a Federal Labor Government would likely be far more sympathetic to the ACTU’s views that the practice of misclassifying casual employees by labour hire companies and some employers denies workers access to fair wages and conditions and needs to be curtailed.

Gender equality: no pay secrecy

Many employers require employees, via policy or their employment contracts, to keep their remuneration strictly confidential. Labor wants to prohibit pay secrecy clauses in employment contracts which would give employees the right to disclose (or not disclose) their pay. This is part of a broader set of measures Labor says will improve pay equity, including:

  • requiring organisations with over 1,000 employees to publicly report on their gender pay gaps; and
  • requiring Australian Public Service agencies to conduct gender pay audits.

Reforming sexual harassment laws

The Australian Human Rights Commission is currently conducting an Inquiry into Sexual Harassment at Work and will deliver its report to the Federal Government in mid-2019.  The Commission will look at the current legislative framework and will likely make recommendations for legislative reform. Given the continued momentum of the #MeToo movement, the indisputable evidence that sexual harassment at work remains a significant and costly problem, and Labor’s self-proclaimed label as the party for women, it is not difficult to imagine a Federal Labor Government, with support from the minor parties in the Senate, enacting legislation to make it easier for women to bring complaints of sexual harassment.

Other industrial relations reforms

A Labor Government would likely seek to implement what many may see as “union friendly” policies including:

  • abolishing the construction industry watchdog, the Australian Building Construction Commission;
  • restoring the Fair Work Commission’s power to arbitrate a broad range of disputes;
  • reversing the recent cuts to penalty rates in the retail and hospitality sectors;
  • including 10 days’ family violence leave in the National Employment Standards;
  • increasing penalties for systematic underpayment and exploitation of workers; and
  • permitting industry-wide collective bargaining, ensuring enterprise agreements are made with a ‘representative cohort’ (i.e. not just with a handful of non-unionised employees) and preventing the unilateral termination of expired agreements.

Whether you are in favour of Labor’s mooted reforms or not, a change in Federal Government would certainly make for interesting times and it is never too soon to consider how these changes might impact your business – for better or for worse.

[1] Hope is not a strategy – our shared responsibility for the future of work and workers, 19 September 2018

[2] Skene v Workpac Pty Ltd [2018]  FCAFC 131

Thank you to Nancy Zheng (Graduate) for her contribution to this article.

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