A Senate Select Committee report on the Future of Work and Workers handed down this week after a year-long inquiry, gives some insight (which is likely to be startling to most employers) into the likely Labor legislative agenda in the workplace relations space if there is a change of government at the next election.

The employment and IR related recommendations from the Committee’s majority (dominated by Labor, Greens and Independents) include the following that have general application to employers, particularly those with unionised workforces:

  1. Stronger legislative requirements for employers to consult with workers and trade unions before and during the introduction of major technological and other change in the workplace.
  2. Workplace legislation be amended to strengthen the protections available to workers and their unions.
  3. Legislate to extend workers’ and trade unions’ rights to collectively negotiate terms and conditions of employment.

The following additional recommendations of the Committee’s majority are likely to be a cause for concern for employers who regularly engage casuals, labour hire workers, contractors or other gig workers – on top of the already problematic landscape given recent decisions relating to casuals (for example, the Full Federal Court’s decision in WorkPac Pty Ltd v Skene [2018] FCAFC 131) and labour hire workers (for example, the Fair Work Commission’s decision in Kim Star v WorkPac [2018] FWC 5745):

  1. Review the definition of “casual” work.
  2. Legislative amendments to crack down on sham contracting and employment arrangements which classify workers who are in fact dependent as independent contractors, in order to avoid employment obligations.
  3. Improve superannuation rights for workers who are not classified as employees and/or who perform non-standard work.
  4. Legislative amendments that broaden the definition of employee to capture gig workers and ensure that they have full access to protection under Australia’s industrial relations system. The formulation proposed is: if a company makes money directly as a result of workers’ labour, and if workers are dependent on the company for work and income, then those workers are employees of that company.
  5. Introduction of a national labour hire licensing scheme and a requirement that labour hire workers have access to and be paid at least the same wages and conditions as the directly engaged employees working alongside them.
  6. Further consideration be given to implementing portable leave schemes.

If any of these recommendations come to pass, it will add to the existing challenges for businesses seeking to use alternative labour models. Watch this space…

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