Following the Australian Labor Party’s win in the 2022 Federal election, employers need to be aware of several reforms proposed by Mr Albanese’s Labor Government in the employment law space.
Although workplace and industrial relations reform was not a central talking point in the run up to the election, Mr Albanese did propose the “Secure Australian Jobs Plan” in response to several current workplace and broader economic issues.
This Insight provides an overview of the key changes proposed under this Plan.
Changing the Definition of a Casual
Mr Albanese’s Government has proposed to legislate an objective test to be used to determine whether an employee is a casual. Although the requirements of this objective test have not yet been revealed, the test will likely shift the focus back to the practical realities of the relevant employment relationship. This would be a departure from the recent High Court decision in Workpac v Rossato1 and Mr Morrison’s Government’s recent changes to the definition of a casual employee under the Fair Work Act 2009 (Cth) (FW Act), which controversially shifted the focus onto the written terms and conditions governing the relevant employment relationship.
Expanding the Coverage of the Fair Work Commission
The Albanese Government has proposed to expand the powers of the Fair Work Commission (FWC) to cover “employee-like” forms of work. What this means is that if implemented, the FWC will have powers to determine the rights and obligations that may or may not apply to gig economy workers and contractors.
Capping Fixed-Term Contracts
Consistent with Labor’s overall objective of improving job security, Mr Albanese’s Government has proposed to limit the number of consecutive fixed-term contracts an employer can offer to an employee for the same role to two, with an overall cap on the duration of those contracts of 24 months.
Pursuing ‘Same Job, Same Pay’
Mr Albanese’s Government has promised to uphold the ‘Same Job, Same Pay’ principle by requiring that workers employed through labour-hire companies earn no less than those workers directly employed to perform the same duties. At this stage, it is unclear whether this principle will be limited to wages or whether it will extend to other rights and entitlements afforded to employees.
Closing the Gender Pay Gap
Mr Albanese’s Government has proposed to close the gender pay gap by proposing the following measures:
- making gender pay equity an objective of the FW Act;
- strengthening the ability and capacity of the FWC to order pay increases for workers in low paid, female-dominated industries (e.g., aged care, early childhood education and care, and disability care);
- implementing all 55 recommendations of the Respect@Work Report2 and legislating the right to 10 days of paid family and domestic violence leave as a National Employment Standard under the Act;
- requiring companies with more than 250 employees to report their gender pay gap publicly, prohibiting pay secrecy clauses and giving employees the right to disclose their pay if they wish to do so; and
- taking action to address the gender pay gap in the Australian Public Service.
Introducing a Portable Entitlement Scheme for Insecure Work
Mr Albanese’s Government has vowed to consult with State and Territory Governments, unions, and industry leaders to develop “portable entitlement schemes” with respect to the annual, personal, and long service leave entitlements of Australians in insecure work. These schemes will essentially allow gig economy workers to accrue leave entitlements and carry these entitlements with them from one job to the next.
Mr Albanese’s Government has also indicated that it will:
- make job security a strict objective of the FW Act;
- legislate to make wage theft a federal crime;
- introduce a “Secure Australian Jobs Code” so that taxpayers’ money being spent through Government contracts is used to support secure employment for workers;
- ensure the Government is a model employer and only utilises non-permanent employment when essential; and
- abolish the Registered Organisations Commission and the Australian Building and Construction Commission.
Addisons’ employment law team will monitor these topics and will continue to report on the progression of these proposed reforms.