Change is coming Preparing for the new Federal Labor Governments Employment Summit

What you need to know

• The election of the new Labor Federal Government is likely to bring significant change to Australian workplaces.  
• The new Government is planning an Employment Summit to be held by September 2022. 

What you need to do

• Consider if, and if so, how, your organisation would like to be involved in the new Government's Employment Summit to influence the direction of Australian workplace laws.

Following the ALP's success in the recent Federal election, employers should start to prepare for the significant changes which may be on the horizon.  The ALP put forward a range of employment related election policies prior to its election. Whilst not all of these changes may be imminent, they are areas that employers should begin to turn their minds to before amendments to the Fair Work Act are tabled.

Some key areas of note and proposed changes include:

1. Employment Summit

Prime Minister Albanese has announced that he will convene an Employment Summit, which is likely to be held by September.  The Employment Summit is proposed to bring unions and businesses together to work to lift productivity.  Prime Minister Albanese has stated the Employment Summit will inform a White Paper on Full Employment.

Consideration for employers

Businesses should start to consider areas of importance which would be beneficial to pursue at the Employment Summit, which might include an increase to skilled migration, improved skills policy and simplification of collective bargaining.  Employers should also be aware that the Employment Summit could pave the way for many of the proposed ALP reforms mentioned below and other changes which will likely be proposed by the ACTU.  

2. Criminalising Wage Theft

The new Government proposes to implement criminal liability for wage theft.  However, it has indicated that any Federal law would not override existing State and Territory laws, and would instead operate concurrently.

Consideration for employers

Employers should take steps to identify and address underpayment as a matter of priority.  Any amendments to the Fair Work Act would apply to all forms of remuneration (including loadings, penalty rates, overtimes, leave, allowances and superannuation guarantee).

3. Same Job, Same Pay

The object of this policy is to ensure that workers employed through labour hire companies (and possibly all service contractors although the scope is not yet clear) are not paid less than workers who are directly engaged.  Although the exact changes are still uncertain, it is likely that the Government will adopt the same legislative approach as it outlined in the Fair Work Amendment (Same Job, Same Pay) Bill 2021; which was introduced by Labor prior to the election, but lapsed on 11 April 2022.

Consideration for employers

Employers should consider which of its workers may be impacted and how their business can remain compliant with the key terms of the lapsed bill.  Under the lapsed bill, obligations would be put on both labour hire companies and employer 'hosts' who enter into contracts or arrangements with labour hire businesses.  Some key terms include the payment of casual loading for workers supplied as 'casuals' and a requirement for hosts to take reasonable steps to ensure a labour hire company has complied with the requirements under the legislation. 

4. Insecure Work

Providing stability to 'insecure' workers (especially those in the gig economy) is a key issue on the agenda for the new Government.  The new Government previously stated that it would extend the powers of the Fair Work Commission to include “employee-like” forms of work.  This extension of the FWC’s powers would enable the FWC to make orders for minimum standards for workers in "employee-like" engagements.  This would allow the FWC to intervene or inquire into all forms of work and determine the rights and obligations that apply.

Consideration for employers

Businesses who engage gig workers and other "employee-like" arrangements should closely monitor proposed changes in this area.  Although there is currently little information about how this would be implemented, the changes will likely provide for those workers to have employee-like entitlements.  The new Government has also announced that it would seek to: 

• provide for such workers to collectively bargain;
• develop a portable entitlement scheme for leave for insecure workers; and 
• establish minimum safe working standards.

5. Definition of 'Casual Employee'

In 2021, the Coalition Government passed legislation which inserted a definition of “casual employee” into the Fair Work Act.  The changes defined an employee by the offer at the time their employment commenced.  The new Government has previously announced that it intended to amend this definition to ensure the overall circumstances of employment, such as shift patterns, are taken into account.

Consideration for employers

The proposed amendment seeks to ensure that employees working regular shifts for a defined period are considered part-time or full-time, rather than casual.  Employers should begin to review the working arrangements of casual employees to determine any risks of misclassification, as well as whether any offers of casual conversion may be appropriate. 

6. Respect@Work

The new Government has committed to implementing all remaining recommendations from the Respect@Work Report.  This includes legislating to impose a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation. 

Consideration for employers

Employers should already be taking steps to ensure they demonstrate positive action in this area. Organisations should ensure that their policies in these areas are preventative, rather than purely reactive, and include both grievance handling and whistleblower policies.  

7. Other Key Proposed Changes

The new Government has also proposed: 

• Implementing legislation requiring organisations with more than 250 employees to report their gender pay gap publicly and prohibiting pay secrecy clauses (to give employees the right to disclose their pay).
• Legislating the right to 10 days' paid family and domestic violence leave into the NES (and the FWC has recently approved in principle adding a clause into modern awards to provide for this entitlement).
• Including ‘job security’ as an object of the Fair Work Act listed in section 3 so that the FWC would have to consider job security in its decisions.
• Implementing, through amendments to the Fair Work Act, a limit on consecutive fixed term contracts for the same role. The maximum period is likely to be 24 months, and there will be limited exceptions to this.  
• Abolishing the Registered Organisations Commission and Australian Building and Construction Commission.
• Including ‘gender pay equity’ as an object of the Fair Work Act listed in section 3 so that the FWC would have to consider this in its decisions.
• Minimum wage increases.

Get in touch with us 

The election of the Labor Government is likely to bring significant change to Australian workplaces.  

We would be happy to talk with you about the changes this article touches on to help you prepare for upcoming changes. 

Authors: Trent Sebbens,  Partner; Ian Humphreys, Partner and Alexandra Goodman, Lawyer.