WHO SHOULD READ THIS
- All Australian workplace participants, particularly in-house lawyers and professionals with an industrial, employment or safety focus.
THINGS YOU NEED TO KNOW
- With an ALP defeat, courts, commissions and unions are likely to take a more active role in the industrial sphere.
WHAT YOU NEED TO DO
- Keep your business aware of changes as they occur, and understand how to transition your business to ensure compliance with new laws.
The media, pollsters and betting agencies got it wrong – and we fell for it (see The Fair Work Act and WHS Act: Should they go in the recycling bin with used wrapping paper?).
For the last several months, our Employment Relations and Safety team have been discussing how ALP policies will respond to industrial pressures across Australia (think: declining private sector bargaining; low wage growth; the 'gig' economy; workplace deaths; and the question marks over casual employment).
With Scott Morrison returned, and the Minister for Jobs and Industrial Relations role now vacant (with the Hon Kelly O'Dwyer not recontesting her seat), what can we expect from a coalition Liberal-National Government?
The Liberal party policies in the industrial sphere do not, with specificity, outline a way forward, other than signalling an intent to 'transform our employment services system to help Australians who need extra support to get a job' and increased funding of the vocational education sector.
In March, the Liberal-National Government said that it would introduce jail terms for severe cases of underpayment and to create a national labour hire registration scheme in four high-risk industries (horticulture, meat processing, cleaning and security) but there was limited discussion of these proposals during the election campaign.
If not legislative change, what?
Legislative change (if any) is hard to predict, with the last votes still being counted, and a new front bench yet to be sworn in. While the Government adapts and responds to its self-declared 'miracle', both unions and employers may need to look to sources other than the Parliament to solve their problems. This may include:
- the Fair Work Commission (FWC): lower and slower enterprise agreement approval is a reality. A higher degree of scrutiny, particularly around the BOOT, has seen more and more agreements knocked back or delayed. Will we see the FWC take on a greater role in revitalising private sector bargaining? Or will it continue to assess each agreement on its face, putting to one side the larger trends across the industrial sector? Similarly, will the FWC take on an active role in addressing social issues, such as the gender pay gap, through Modern Award reviews, or leave these issues to the Government?
- Courts: with the ALP's intention to legislate casual employment issues off the table, these matters are now squarely in the hands of the Federal Court. Will the courtroom (rather than the floors of parliament) be the location for major changes to employment laws?
- Unions: without real influence over the legislative agenda of the Government, and with the ABCC and Registered Organisations Commission (ROC) retained, will unions need to prop up their litigation budgets to drive change through test cases? Will we see more union pushback on ABCC prosecutions, and a spike in 'novel' arguments being run in an attempt to develop worker friending case law?
- Regulators: wage theft is an issue for both sides. The 2019-2020 Budget provided expenditure for the Fair Work Ombudsman and the ROC to address sham contracting. The budget also provided for a Protecting Vulnerable Workers 'National Labour Hire Registration Scheme' and a pilot program to address regional workforce shortages. These regulators operate with a degree of autonomy – will they be asked by Australians to take a harder line on those exploiting the system?
- State ALP Governments: private sector employment is largely the domain of the Commonwealth. However, ALP State governments are pushing their agendas through state based regulation, including labour hire licensing, industrial manslaughter amendments and construction regulations (think the Queensland Building and Construction Commission). Will State ALP governments be asked to do more to address perceived unfairness and, if so, how do employers deal with overlap?
Although a legislative overhaul of Australian industrial laws is no longer on the agenda – avenues for change remain open. Workplace relations practitioners will need to keep their eyes on a variety of different potential avenues going forward (even if we have had to retrieve the Fair Work Act and WHS Act from the recycling bin).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.