July 14, 2022

What Labor's Job Plan means for Employers

So, it’s a new financial year, interest rates are the hot topic and the weather is still mad.

Now that we have your attention, let’s shine the spotlight on lesser-known things that may affect your business in 2022 – Labor’s Job Plan.  Now that the election is done and dusted, there has been little commentary on Labor’s election promises and plans around industrial relations. The official name is “Labor's Secure Australian Jobs Plan” and according to their website, it will “deliver more secure jobs, better pay and a fairer industrial relations system”.

So, what does this mean to you, the Employer?

First of all, the plan has a number of sections:

  1. Making job security an object of the Fair Work Act
  2. A better deal for gig workers
  3. Standing up for casual workers
  4. Same job, same pay
  5. Making wage theft a crime
  6. A right to your super
  7. Limiting the use of fixed-term contracts
  8. Secure Australian Jobs Code
  9. Ensuring that government is a model employer
  10. Consultation on portable entitlement schemes for Australians in insecure work
  11. A better deal for women
  12. Abolishing the Registered Organisations Commission (ROC) and the Australian Building and Construction Commission (ABCC)

Much of the plan is centred around making various changes to the Fair Work Act and extending the powers of the Fair Work Commission.

Job security and Gig work are the major lynchpins in this plan – as Labor points out, when the Fair Work legislation was originally drafted over a decade ago it could not foresee the emergence or growth of new forms of insecure work, like gig work.  We probably could have added a world-wide pandemic to things that were not able to be foreseen as well!

Sorting out the definition of a casual worker is something that we wish for!  The Liberal government had a stab at it in 2021 but there is so much ambiguity around who and what is a casual employee.  Having some sort of clarification would actually save a lot of Employers from a lot of heartache.  A number of Employers have been caught out by unknowingly doing the wrong thing in this area unbeknown to them.

Woman buying jeans from shop

Wage theft is already a crime in Queensland so we don’t expect there to be substantial changes to Queensland Employers.

The Queensland Criminal Code at section 391 (‘Definition of stealing’) includes deliberate, intentional behaviour leading to under or non-payment of entitlements as a criminal offence.

This could include where deliberate wage theft occurs through:

  • unpaid hours or underpaid hours
  • unpaid penalty rates
  • unreasonable deductions
  • unpaid superannuation
  • withholding entitlements
  • underpayment through intentionally misclassifying a worker including wrong award, wrong classification, or by ‘sham contracting’ and the misuse of Australian Business Numbers (ABN)
  • authorised deductions that have not been applied as agreed.

Employers found to be deliberately stealing from their workers can be prosecuted with a crime and sentenced to up to 10 years in jail. Underpayments brought on by an honest mistake or delay cannot attract criminal penalties. To successfully charge an employer with stealing, the employer must be shown to have intentionally withheld an employee’ entitlements with an intention to permanently deprive the worker of their property.

Changes to Superannuation will include bringing the entitlement into the NES, allowing the Fair Work Ombudsman to work with the ATO to pursue unpaid superannuation.  Once again, for those Employers doing the right thing, this is a welcome change.  

Labor will limit the number of consecutive fixed-term contracts an employer can offer for the same role, with an overall cap of 24 months.  This may have significant effect on funded organisations that use fixed term contracts aligned to funding periods.

Some areas that need further clarification are the new jobs code, the abolishment of the Abolishing the Registered Organisations Commission (ROC) and the Australian Building and Construction Commission (ABCC), the Government being a model employer and how the portable LSL will work.

Labor will also fully implement all 55 recommendations of the Respect@Work Report and legislate the right to 10 days of paid family and domestic violence leave as a national employment standard.

We agree that the Fair Work Act does need updating and clarification in a number of areas.  Changes that tighten unfair practices such as underpaying wages or entitlements or engaging in sham contracting as a way to get around Fair Work requirements create a fairer playing field for all employers.

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