Proposed changes to employment and industrial relations

26 June 2022

The success of the Australian Labor Party (Labor) in the 2022 Federal Election has raised the possibility of a range of changes to Australian employment and industrial relations laws. 

Labor’s Secure Australian Jobs Plan is committed to delivering “more secure jobs, better pay and a fairer industrial relations system”. 
Under the plan and throughout the campaign, Labor proposed changes to a range of initiatives such as aspects of pay, casual employment, enterprise agreements, job security and parental leave. 

Within these policy platforms NECA recognises potential impacts and opportunities for our industry stakeholders and members. 

NECA will continue to work closely with the federal government and agencies to ensure we stay ahead of any changes and make government aware of our members’ positions. 

Below is a summary of the primary areas of reform proposed by the Labor Government and some information on what employers may need to consider in light of these pre-election commitments. 

To ensure industry preparedness, NECA will continue to work with members and inform them of introductions of any relevant legislative and policy changes, and their potential impacts.

Same job, same pay 

The proposed same-job, same-pay legislation sets out that if people work the same job, they are entitled to the same pay. This means that labour hire workers would need to be paid the same amount as employees that work directly for their employer. 

There still remains some uncertainty as to whether “same pay” means payment of the same hourly rate/salary, or the right to the same entitlements, such as the accrual and taking of leave. 

The legislation has been proposed as a way of reducing the hiring of labour hire workers in attempt to lower employer expenses on pay rates, which at times, has led to the reduction in wages of direct employees. 

Casual employment 

We note that the Fair Work Act 2009 (Cth) (the Act) was amended to define casual employees as those with no firm advance commitment to ongoing work with an agreed pattern of work. 

An amendment to the Act is proposed to remove this casual definition and ensure that what is deemed a casual worker is determined by an employee’s shift patterns. 

This amendment also aims to protect the rights of employees whose pattern of work would usually classify them as part-time workers. 

Enterprise bargaining agreements

In relation to enterprise bargaining agreements (EBA’s) the following is proposed:

  1. Prevent the unilateral termination of EBA’s during bargaining where the EBA has reached its nominal expiry date and such termination would cause a reduction in employee entitlements;
  2. Ensure closer regulation of the voting group concerning EBA approval. This has been proposed in an attempt to ensure that a small group of employees do not set the significant terms of employment for future groups of employees employed by the same employer; 
  3. Develop guidelines on how to engage in good faith bargaining.

Sexual harassment and workplace misconduct 

Introduction of a positive duty on employers is proposed to take “reasonable and proportionate measures” in an attempt to reduce sex discrimination and sexual harassment in the workplace. 

This also includes the consideration that whistle-blower laws be strengthened, and whistle-blowers be rewarded through a rewards program. 

Other proposed changes

Other proposed changes include, but are not limited to:

  1. The introduction of a limit on the number of fixed term contracts an employee may be offered. This would be capped at a period of 24 months after which there may be a requirement to offer the employee a permanent position in that role;
  2. The termination of all existing pre-Fair Work Act 2009 (Cth) collective agreements at a specified date;
  3. The introduction of 26 weeks paid parental leave at full pay with superannuation to encourage gender equality and expand access to fairness and parental pay; 
  4. The prevention of secrecy clauses in contracts, which currently aim to prevent an employee from openly discussing their pay with other employees; 
  5. The introduction of a Secure Australian Jobs Code to ensure government procurement supports secure local employment for Australian workers.
  6. The proposed abolishment of the Australian Building and Construction Commission.
  7. The proposed criminalisation of ‘wage theft’.

    What could this mean for employers?

    In consideration of the proposed changes proposed NECA suggests employers consider the following:

    1. Review their existing terms and conditions of employment contracts;
    2. Employers who engage casual workers should review hours of work and working arrangements to determine whether the employee truly is classified a casual employee when contrasted with permanent employees;
    3. Consider if they have any pre-Fair Work Act collective or individual agreements and if so, consider whether a Modern Award or enterprise agreement would be more appropriate for employees to be covered by;
    4. Take steps to prepare for the introduction of a positive duty to take reasonable and proportionate measures to reduce or eliminate sex discrimination and sexual harassment in the workplace;
    5. Employers with employees on the national minimum wage should:
      1. Continue monitoring NECA’s communications regarding the Annual Wage Review;
      2. Consider the effects that a substantial increase to this wage will or may have on the business (if it were to come into effect).

    For more information 

    The proposed changes that have been set out in this article have not (and may not) come into operation at the time of publishing this article. This summary is a guide only and is not legal advice. 

    For clarification on the proposed changes or for more information on legislative obligations, please contact ECA Legal on (08) 6241 6100 or ecalegal@ecawa.asn.au.