DCN April 2019 Edition

WORKPLACE LAW
Labor’s election platform and
plans for the Fair Work Act
A change of government at the next federal election is likely to result in considerable
changes to the industrial relations landscape, writes Chris Gianatti
IF SUCCESSFUL AT THE NEXT
federal election, the Australian Labor Party
has proposed several changes to the Fair
Work Act (refer to boxed out section). If the
proposals successfully pass the Senate, this
will change the industrial relations landscape
dramatically, back to a pre-1993 era.
Taken in combination, these proposals
would significantly re-regulate the
workplace in a way that will, I argue,
entirely defeat any capacity to compete on
the basis of cost arising from anything to
do with labour.
Modern award conditions and minimum
wages rates apply to all participants in an
industry. To have an enterprise agreement,
then the agreement must provide that all
employees are better off compared to the
Award. If you wish to resist pay rises under
enterprise agreements, protected action
will be simpler to obtain by employees to
compel you to give a pay rise or improved
conditions.
Once an agreement is made, then it will
never be allowed to go backwards and will
always be just the new base platform for
further increases. If you don’t agree to an
“agreement”, the Fair Work Commission
will have more power to arbitrate the
agreement for you. If you wish to start
a new enterprise and go directly to new
employees for a new enterprise agreement,
this will be seen as a “sham” and you will
have to go to a union to get a “greenfields”
agreement. If you wish to outsource or get
labour hire, then transfer of business rules
Chris Gianatti, director, KHQ Lawyers
THE ALP’S KEY PROPOSALS
NATIONAL EMPLOYMENT
STANDARDS
• A new definition of “casual”
employment to ensure that casual
work is strictly unpredictable and
intermittent only.
• Standardisation of long service leave
entitlements.
• A ban on pay confidentiality clauses
in employees’ contracts.
MODERN AWARDS/ANNUAL
WAGE REVIEW
• Restoration of, and protection
against, further changes to penalty
rates.
• A greater emphasis on the needs
of the low paid in the setting of
minimum wages. (NB: A formal “living
wage” policy has not been set out,
but the ALP has made some noises in
that direction).
ENTERPRISE AGREEMENTS
• Strengthened requirements for good
faith bargaining.
• Industry-level bargaining to be
permitted in at least low-paid sectors.
• A prohibition on employees going
backwards via the termination of
enterprise agreements.
• A ban on “sham” agreements – eg.
agreements made with three or four
employees.
INDUSTRIAL ACTION
• Simplification of the procedural
requirements to take protected
industrial action.
• Query whether the Fair Work
Commission will be given new
discretion(s) as to whether
unprotected action should be
ordered to stop and/or whether an
employer can sue a union in tort for
causing unprotected action.
OTHER
• Abolition of the Australian Building
and Construction Commission and
repeal of the Building Code 2016.
• Likely restoration of the Road Safety
Tribunal.
• Strengthened provisions against
sham contracting.
• Greater powers for the Fair Work
Commission to be able to arbitrate
(rather than just conciliate) disputes.
will ensure that your enterprise agreement
goes across to the outsourced provider. The
outsourced provider will also need to be
licensed and forever be at the mercy of the
licensing body. If you try to go offshore, you
will have to satisfy the government that
you have done local labour market testing
first. If you try to close the doors, this
could be a breach of general protections for
taking adverse action against the employees
because they were simply exercising their
workplace right to be in a union and
seek pay rises. A court can then issue an
injunction against your business to prevent
it terminating the employment of any
employees.
WAIT AND SEE
Until we know the timing and outcome of
election, it certainly pays to review your
enterprise agreement portfolio. Continue
to review your arrangements with your
casual employees in light of “Skene’s
Case” last year and the further expected
changes from the ALP. Also stay close to
your employees with the things that are
important to them.
58 April 2019
thedcn.com.au