“The latest tranche of workplace relations changes being proposed by the government are the wrong measures for the wrong times,” Innes Willox, Chief Executive of the national employer association Ai Group said today.
“The Government is engaging in more meaningful consultation with industry than occurred last year and we very much welcome and appreciate that approach. But there are real concerns about the overall direction these measures will take us.
“At a time when the economy is under increasing stress from rising costs, labour and skill shortages and increasing global uncertainty the last thing business needs is more regulation, more complexity and more rigidity.
“These measures will do nothing to increase productivity which is recognised by all to have flatlined and in fact the measures risk driving productivity backwards across the economy.
“As can be seen from information recently released by the Government, there is still a great deal of work to be done before the Government could reasonably consider putting legislation before Parliament. The devil will be in the detail, and industry needs to be genuinely listened to in the development of further reforms,” Mr Willox said.
Quotes attributable to Innes Willox on proposed IR changes:
1. Casual workers.
“Ai Group is deeply concerned about a change to the definition of ‘casual employee’ in the FW Act that appears to be under consideration. The current definition in the Fair Work Act broadly reflects the common law definition adopted by the courts. There is just no need for the Government to bow to union calls for radical change.
“It is vital that any changes to the casual employment provisions in the FW Act do not result in unworkable uncertainty over who is a casual employee. This would not be in the interests of employers, employees or the Australian community. Uncertainty would only result in disputation that only benefit overseas litigation funders chasing super-profits at the expense of the Australian community, and the law firms they partner with.
Casual conversion:
“The conversion rights in the FW Act are already robust. Casual employees who work regular hours have clear rights and opportunities to pursue conversion to permanent employment should they wish to do so.
“The process that employers are required to comply with when each casual employee reaches 12 months of employment imposes a substantial regulatory burden, but the current provisions were designed to strike a balance between the interests of all parties.
“The current legislative provisions accommodate a raft of practical considerations associated with the need to retain workable casual employment arrangements while also delivering a pathway to permanent employment for those that prefer it.”
2. Same Job, Same Pay
“Ai Group opposes the Government’s policy of requiring that labour hire companies provide the same rates and conditions to their employees, as their clients provide to their own employees. Labour hire businesses must comply with the FW Act and modern awards, like every other employer.
“We are concerned that there is the potential for such a policy to lead to legislative changes that are unfair and damaging to the interests of employees and employers that legitimately rely on labour hire arrangements and to the broader economy. Based on an assessment of previously proposed legislative changes, there is a real risk that an amendment will be unworkable for numerous reasons.
“There is concern among many in industry that the ‘same job same pay’ policy represents an unfair attack on labour hire businesses that comply with relevant workplace laws and provide a valuable and legitimate service to other organisations, employees and the broader community.
“Careful consideration needs to be given to the inevitable increase in costs due to the proposed changes. Industry can’t be treated like a magic pudding that can keep meeting the costs that will inevitably flow from the Government’s reform agenda.
3. Compliance and enforcement: criminalising wage theft
“While Ai Group does not in any way condone non-compliance, we don’t support the introduction of criminal penalties.
“The imposition of criminal penalties does nothing to address the structural complexity of Australia’s workplace laws but simply deals with the issue of underpayments by punishing employers who get it wrong while leaving underpaid workers out of pocket.
“Exposing businesses, directors and managers of businesses to criminal penalties would operate as a major barrier to employers self-disclosing and rectifying underpayments. It could discourage constructive engagement with the Fair Work Ombudsman (FWO).
“The complexity of workplace laws also plays out in payroll errors in both directions. In February 2020, the Australian Payroll Association reported that almost 70 per cent of businesses it assessed in an 18-month period had uncovered overpayments estimated to cost employers millions of dollars.[1] In most cases, employees are not asked to give the money back.
“In addition, criminal penalties are not designed to recover unpaid wages owing to employees. The FW Act’s prioritisation of criminal proceedings ahead of civil enforcement and proceedings is likely to leave some of the most vulnerable workers without repayment while the courts deal with the alleged criminal conduct of their employer.
4. Extend the powers of the FWC to include ’employee-like’ forms of work
“Ai Group holds very significant concerns about the prospect of this reform unjustifiably extending to the regulation of contracting arrangements in sectors where there has been longstanding and deeply entrenched adoption of independent contracting arrangements, the use of which is supported by industry and the contractors themselves.
“No case has been made out for establishing a regime with the potential to dramatically alter the regulation of contracting arrangements across the economy.
“In developing any reform, robust consideration needs to be given to the unique nature, and needs, of the gig or on-demand sector. A careful balance needs to be struck.
5. Provide stronger protections against discrimination, adverse action and harassment
“Employers are already subject to multiple and duplicate pieces of legislation directed at discrimination, adverse action and harassment.
“Ai Group opposes additional regulation in respect of discrimination, adverse action and harassment that would further increase the regulatory burden on employers.
“Instead, the reform that is needed is a consolidation and removal of regulatory duplication that exists across state and territory and federal anti-discrimination laws and the FW Act. ‘Levelling up’ regulation to increase obligations on employers in the name of ‘consistency’ while still maintaining multiple legal frameworks and complaints avenues perpetuates unnecessary complexity for both employers and employees.
