Australian Federal Election 2022 – What does an ALP government mean?

What should/can businesses do now?

Businesses should consider the following:

• Which workgroups might be captured by the legislation? This could extend beyond traditional ‘labour hire’ to arrangements whereby different entities within a corporate group share labour, and to service contracting arrangements.
• What opportunities might be available to legitimately and lawfully limit the application of this legislation, or reduce its impact? For example, this might require changes to existing terms and conditions of employment, including through enterprise bargaining.
• What processes will need to be established by organisations to comply with the legislation? For instance:
  • What information will organisations need to provide to labour hire businesses and its workers about the applicable pay and conditions? How will this be done?
  • What changes will need to be made to contracting and labour hire agreements?
  • What changes need to be made to recruitment processes, workplace training programs, workplace amenities and collective facilities?
  • What changes will need to be made to accommodate any additional obligations to provide advance notification and consultation to labour hire workers in the event of changes to hours and location of work?
  • What auditing processes will need to be implemented to ensure labour hire businesses are providing the correct pay and conditions to their workers?
  • To what extent are businesses existing contracts and enterprise agreements likely to operate consistently with the above obligations?
• Would the introduction of these laws impact the feasibility or operational justification for the engagement of labour hire? Might it require changes to labour or operating models?

What should/can businesses do now?

Organisations should consider whether they still have operative pre-Fair Work Act collective agreements. If so, it would be useful to consider well in advance how the relevant modern award terms might apply instead, or whether it is appropriate to negotiate a replacement enterprise agreement under the Fair Work Act.

What should/can businesses do now?

Termination of Enterprise Agreements

Employers who are commencing bargaining will need to give consideration to how it will approach a potential prohibition on such applications. In particular, this might require a significant shift in bargaining strategy if such an application is being considered to achieve change in existing enterprise agreement terms and conditions that have become unsustainable. How else might organisations secure sufficient leverage to encourage a workforce to wind back particular terms and conditions by agreement?

Start-up enterprise agreements

Any employer considering a ‘start-up’ agreement as part of its industrial strategy for new sites and projects will need to consider the potential impact of the ALP’s proposed laws about representative cohorts. This might impact the timing or coverage of the proposed agreement. 

Bolstered good faith bargaining rules (including on disclosure of information), increased access to the Fair Work Commission and a job security objective for the Fair Work Act

Employers who are commencing bargaining (or who may be delaying bargaining) should give consideration to how these proposed changes might influence bargaining strategy and tactics moving forward.

What should/can businesses do now?

Limits on use of fixed term contracts and introduction of fixed term conversion rules

Employers who rely heavily on consecutive fixed term engagements should consider how proposed limits on the number and length of consecutive engagements might impact their labour model, and whether changes might be required. 

Amending the definition of casual employment

Employers who engage casual employees should take steps to review the hours of work and working arrangements with casual employees to determine whether there may be risks of any misclassification when contrasted with permanent employees. It may also be an appropriate time to review whether the business should make any casual conversion offers to employees.

What should/can businesses do now?

Employers should already be taking steps to ready themselves for the potential introduction of a positive duty to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace. In many cases, this will require significant change to existing frameworks.

Businesses should also ensure their existing whistleblowing policies and arrangements are operating to encourage employees to call out workplace misconduct to avoid a ‘rush’ of new allegations following the implementation of any such laws. 

Management reporting systems which involve Board oversight should also be considered if not implemented already.

What should/can businesses do now?

Increases to wage rates

Employers with employees on the national minimum wage or on minimum award rates should give consideration to the impact that a substantial increase to these rates might have on its operating model, particularly in sectors such as early childhood education, aged care, disability services, and in industries that may be impacted by a re-introduction of a ‘safe rates’ transport industry scheme (eg. road transport).

Sham contracting and wage theft

As ever, it is important to have engagement processes that ensure only true ‘independent contractors’ are engaged as such, and there is no confusion as to which workers are contractors, and which are employees. This may involve: reviewing and updating any independent contractor agreements to ensure they minimise risk; engagement processes to ensure the appropriate labour model is selected for particular roles; and working models to ensure that the actual day to day interactions with the worker are consistent with the contractual terms.

Organisations should also be taking steps to identify, and prevent, underpayment of employees more generally, including potentially throughout the supply chain.

What should/can businesses do now?

Consideration should be given to how transparency of wages might impact the reputation of the organisation and relationships within it, and what changes might be made in advance of any such laws commencing operation.