As the dust settles from the 2022 federal election, the election of the Australian Labor Party (the “ALP”) is likely to bring about some changes to the employment and industrial relations landscape in Australia. Throughout the election campaign a number of promises were made by the ALP and we have considered what the ALP election victory means for employers.

Secure work

The ALP made a number of promises about casual employment, fixed-term employment, gig economy workers and low paid employees during the election campaign. In 2021 the Fair Work Act (“FW Act”) was amended to include the definition of a casual employee. This was part of broader reforms which gave casual employees the right to request “casual conversion” (see our article here). The definition of a casual employee centred around there being no firm advance commitment to continuing and indefinite work. The ALP plans to amend the definition of a casual employee and legislate a “fair, objective test to determine when a worker can be classified as casual, so people have clearer pathway to permanent work”. While the specifics of the definition have not been discussed, it is expected that the definition will be further refined, with fewer employees meeting the definition of a casual employee and consequently more employees being offered permanent work.

Additional protections will also be extended to fixed-term employees as there will be a limit on the number of fixed-term contracts an employee can be offered (it is expected there will be an overall cap of 24 months). At the conclusion of the fixed-term period the employer will be required to offer the employee permanent employment.

The ALP has signalled that it will give the Fair Work Commission (the “FWC”) powers to rule on “employee-like” forms of employment and work, including gig economy workers. This will have an impact on the rapidly changing gig economy and labour-hire landscape. Furthermore, the ALP will look to uphold its commitment to “same job, same pay”. As the term suggests, this will see workers employed through labour-hire arrangements being paid the same rate as employees who are employed directly by the employer where they are performing the same role.

Wages

The ALP will make a recommendation to the FWC’s Minimum Wage Panel for an increase to the minimum wage by 5.1% in accordance with inflation.

The ALP has also campaigned that it will legislate to make wage theft a criminal offence. To address this underpayment issue the ALP has signalled that it will introduce federal legislation following consultation with unions, States and Territories and employer groups.

Industrial reform

The ALP has outlined its desire to make substantial changes to employment and industrial relations bodies. The ALP has signalled its desire to “rebalance” the FWC by looking to make appointments from employee and union backgrounds. The ALP is also likely to abolish the Australian Building and Construction Commission.

Respect@Work Report

The ALP has committed to implementing the Respect@Work Report recommendations in full (read our article here). This will include the introduction of a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation in the workplace.

Top tips for employers

1. Be aware of the upcoming changes. It is expected that some of the changes will be pushed through parliament quickly. Keep up-to-date with the amendments and the commencement date of any changes.
2. Expect change, particularly if you employ or engage casual employees, fixed-term contract employees or operate in the gig economy.
3. Take proactive steps, particularly in relation to the positive duty to eliminate sexual harassment in the workplace. This will ensure that you are complying with the legislation when it commences.
4. Audit your employees’ pay and ensure they are being paid in accordance with any applicable industrial instrument. Address any issues of underpayment immediately and take steps to ensure underpayment does not occur in the future.

Kirryn West James, Director