The 2019 Election – Industrial Relations under a possible ALP government

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Ahead of their presentation on 28 February 2019, Harold Downes and Will Ash outline the possible changes to workplace laws if the federal Australian Labor Party (ALP) is elected at the next election.

The ALP proposes to legislate that labour hire workers are to be paid no less than direct employed employees performing the same work. If they do, any proposition to extend collective bargaining options to include multi-employer bargaining with the ‘host’ employer, as well as companies supplying it with labour, may be largely superfluous as they will get what the employees of the host get in any case. Or ‘hosts’ may choose to not employ any employees of their own at all at any particular workplace, thereby not requiring any uplift from labour hire workers wages to their own employees’ wages.

Recent decisions of the Fair Work Commission in Catherine Hocroft v Verifact Pty Ltd [2018] FWC 611 and Ms Kim Star v WorkPac Pty Ltd T/A WorkPac Group [2018] FWC 4991 (and the related Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2018] FCA 1590) could be seen to make the use of labour hire less attractive if a host can be ordered to allow a labour hire employee back to their site after they asked for them to be removed.

There are calls for an unfettered right to strike in line with ILO principles. Those principles provide a largely unqualified right to workers to strike (or go slow or similar) at any time, and in sympathy, for furthering and defending their interests. It does not require concepts of protected or unprotected, a formal ballot or approval process. Orders to stop such strikes may only be available if the action is endangering health and safety.

There has been some recent commentary around removing the secret ballot process introduced by the Workplace Relations Act 1996 and allowing very formal process to endorse action. Those changes would be redundant if workers (which will probably also include contractors) are given the right to strike without the need for it to be authorised by an industrial tribunal in the context of negotiations and its attendant rules.

The ALP will disallow the regulation to deal with the so-called casual employee ‘double-dipping’, the Fair Work Amendment (Casual Loading Offset) Regulations 2018. The regulation provides that casual loading payments may be taken into account if an employee is found to be a permanent employee and entitled to paid personal and annual leave. Employees labelled casuals who have been working regular hours would have a reasonable basis to claim leave entitlements from their employers, or sue them if they don’t agree.

The use of casual employment in many industries has a level of regularity to it that the common law views as antithetical to such workers really being casual employees. Most contracts do not contain an effective offset provision. Do employers now convert all those employees to permanent employees and hope they don’t come after them for past leave entitlements, get them to agree to variations on their contracts of employment which contain enforceable offsetting provisions against the identified casual loading they are being paid or do nothing and hope no one demands anything?

Not to forget the introduction of national industrial manslaughter laws that will presumably be based on the Queensland laws and only include an option of imprisonment for convicted individuals.

These topics and many more will be discussed at the Mills Oakley breakfast seminar on 28 February 2019.

For further information, please do not hesitate to contact us.

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    Workplace Relations, Employment & Safety