The election of a Federal Labor government is likely to see significant changes to Australia’s employment and industrial relations laws. This article identifies the key changes the new government is likely to introduce based on its various policy statements and the ALP national platform link adopted in 2021.

The key elements of Labor’s proposed reform agenda are based on job security, enhanced protections for workers in non-traditional work and a better deal for female and lower paid employees as summarised below.

Same job same pay

Ensuring that workers employed through labour hire companies or other indirect employment arrangements such as outsourcing receive no less pay than directly employed workers. This objective is aligned to union campaigns in recent times (particularly the CFMMEU in the mining industry) and will potentially present a significant challenge to employers who have relied on contracted labour arrangements to reduce operating costs.

Regulation of “employee like” forms of work

Extending the powers of the Fair Work Commission (FWC) to regulate employment-like forms of work to enable the Commission to protect workers in new forms of work including the gig economy.

Implementing all outstanding recommendations of the [email protected] report including the positive obligation to prevent sexual harassment. Strengthening the ability and capacity of the FWC to order pay increases for workers in low paid female dominated industries. Labor will also require public reporting on gender pay gaps and prohibit pay secrecy clauses in employment contracts. The Fair Work Act (FW Act) will also be amended to include a statutory right to 10 days paid family and domestic violence leave.

Enterprise Bargaining

Enhanced good faith bargaining laws including to support multi-employer bargaining along with increased dispute resolution powers for the FWC. Labor also proposes to prevent the unilateral termination of collective agreements that reduce workers entitlements and terminate any remaining pre-FW Act “zombie” agreements.

Insecure work

The FW Act will be amended to provide an objective test to determine when a worker can be classified as casual so they have a clearer pathway to permanent work. Labor policy refers to the common law test of casual employment being characterised as “the absence of a firm advance commitment as to the duration of the employee’s employment or the days or hours employees will work” and indicates they will restore this definition in the legislation. Limits will be imposed on the use of fixed term contracts with the number of consecutive fixed term contracts an employer can offer for the same role being limited with an overall cap of 24 months.

Wage theft

Wage theft will be made a criminal offence.

Superannuation

The NES will be amended to include superannuation as a minimum entitlement and provide workers the power to pursue their unpaid superannuation directly as a workplace entitlement rather than relying on recovery by ATO.

Portable entitlement schemes

Labor will consult with State and Territory governments, unions and industry to develop portable entitlement schemes for employees in insecure work, for example across different projects or work within certain industries.

Labor will abolish the Registered Organisations Commission and the Australian Building and Construction Commission and repeal the Building and Construction Industry (Improving Productivity) Act.

A secure Australian jobs code will be introduced for government contracts establishing guidelines relating to fair treatment of workers, fair wages and conditions and compliance with various other requirements. These type of policy requirements introduced by various Commonwealth and State governments have presented significant challenges for employers tendering for regulated contracts in the past.

These policy initiatives constitute a significant reshaping of Australian employment law, including further extending it to areas of non-traditional and indirect work.

The Prime Minister has committed as a priority to implementing the [email protected] recommendations and convening a summit of employers and unions to collaborate on secure work and ensuring an effective enterprise bargaining system, so we would expect the first developments to be in these areas.

As with all legislative reforms the devil will be in the detail and we will keep you updated as further details are released by the government.