Election Outcome: What will the Industrial Relations landscape look like under the re-elected Liberal Government?

Brief Summary

• Changes to the Enterprise Agreement approval process;
• Increased flexibility for paid parental leave;
• Increased regulation of core labour hire industries;
• Changes to Union right of entry on work sites;
• Early superannuation access for victims fleeing domestic and family violence;
• Increased funding for the Australian Building and Construction Commission;
• Potential introduction of freedom of religion legislation;
• Crackdown on Sham Contracting, Underpayments and Accessorial Liability;
• Enhanced protection of Migrant Workers; and
• Strengthening of whistleblower protection laws.

An overview of the Liberal–National Coalition’s industrial relations election policies and proposals:

Bargaining and Industrial Action

The Coalition intends to review the current Enterprise Agreement approval process to ensure that excessive and unnecessary barriers to approval are removed while ensuring employee safety nets are not undermined.

Paid Parental Leave

The requirement to take paid parental leave in one consecutive block of the 18-week period will be removed. Under the new system, expected to commence on 1 July 2020, parents will have the flexibility to take 6 weeks of the leave in whatever increments they wish before their child turns two.

National Labour Hire Registration Scheme

The Coalition has accepted a recommendation to form a labour hire registration scheme that seeks to reduce the exploitation of workers in labour hire industries. This scheme will target ‘at risk’ industries such as: horticulture, meat processing, cleaning and security, and will include:

• the mandatory registration of labour hire companies from ‘at risk’ industries, and the requirement for host employers to only be able to hire from registered companies; and

• The power to cancel registrations of labour hire companies that breach the relevant laws.

Union Right of Entry

From 1 July 2019, right of entry permits issued to union officials by the Fair Work Commission must include a photo and signature of the permit holder, along with any conditions on its use.

The notice of entry forms that must be given to employers will also need to clearly set out the rules that both union officials and employers must follow when rights of entry are being exercised.

Superannuation

Victims fleeing domestic and family violence will have early access to their superannuation.

Australian Building and Construction Commission

The Coalition has promised to increase funding to the ABCC by $3.7 million over four years to promote the understanding of, and enforce compliance with, Australia’s workplace laws in the building and construction industry.

Freedom of Religion

The Coalition intends to introduce religious discrimination legislation which will make it unlawful to discriminate on the basis of an individual’s religious beliefs.

Sham Contracting, Underpayments and Accessorial Liability

The Coalition’s response to recommendations made in the Migrant Workers’ Taskforce Report (MWTR):

Increasing Civil Penalties

The Coalition has agreed, in principle, with the MWTR’s recommendation to increase civil penalties for wage exploitation breaches of the Fair Work Act 2009 (Cth).

Criminal Penalties

The Coalition will consider introducing criminal sanctions for the most serious forms of exploitation where there is “clear, deliberate and systemic” exploitation of both local and migrant workers. Any new regime introduced to this effect would complement existing offences in the Criminal Code 1995 (Cth).

Accessorial Liability

In response to the MWTR’s recommendation that the Government explore additional options to ensure businesses and individuals are held to account for breaches of workplace law, the Coalition announced that it will consider ways to ensure employers cannot contract out of their workplace

obligations, for example by extending accessorial liability to companies in appropriate circumstances.

Enhanced Fair Work Ombudsman

The Coalition has accepted the MWTR’s recommendation, in principle, to give the Fair Work Ombudsman enhanced information gathering powers (similar to that of the ACCC) and to ensure the FWO is sufficiently resourced. The MWTR stated that the current “provisions in so far as they apply to the FWO’s work in dealing with wage exploitation issues are unduly complex and burdensome”.

Sham Contracting Unit

One “big-ticket item” is the Coalition’s commitment in the 2019 budget to dedicate $9.2 million to the Fair Work Ombudsman over four years to create a sham contracting unit, with a further $2.3 million each year for ongoing funding.

Employers will be under increased scrutiny for misrepresenting an employee as an independent contractor. Penalties imposed will be up to $12,600 for individuals, per contravention; and up to $63,000 for a company, per contravention.

Protection for Temporary Migrant Workers

In a further response to the MWTR, the Coalition has stated that it will consider making it an offence for a person to knowingly pressure or coerce a temporary migrant worker to breach a visa condition.

Consideration will also be given to providing the State and Federal Courts with specific powers to make additional enforcement orders against employers who underpay migrant workers.

Whistleblowing

The Coalition has agreed in principle to 16 of the recommendations contained in the Parliamentary Joint Committee on Corporates and Financial Services report into whistleblower protections. The recommendations seek to enhance protections for whistleblowers in both the private and public sector.

The Coalition also noted, but has not yet agreed to, a recommendation in the report to introduce a whistleblower rewards scheme, where whistleblowers would receive a percentage of the penalties that eventuate from the wrongdoing that their information reveals. Instead, the Coalition stated that it supports a post-implementation review of the new whistleblower protections, which will provide an opportunity to assess the merits and costs of any rewards scheme once the reforms have had a reasonable time to operate.

If you have any questions about these reforms and proposals may affect you or your business, please do not hesitate to contact Nick Stevens, Jane Murray or Angharad Owens-Strauss.

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