My Blog

Author: Fiona Macdonald

  • Closing Loopholes: Important repairs to the industrial relations system, no more, no less

    Labour hire workers can no longer be paid less than employees doing the same job in their workplaces as a result of industrial reforms passed by Parliament.

    However, other important reforms to close loopholes in employment laws and stop exploitation of workers and avoidance of standards won’t be voted on in Parliament until next year.

    This leaves gig platform workers and road transport contractors waiting to get much-needed minimum pay and conditions standards.

    On the final sitting day of Parliament for 2023, the government’s amended Closing Loopholes bill was passed.

    With a Senate Inquiry into the bill due to report in February it was a surprise to many that some of the reforms were legislated, especially the so-called same-job, same-pay labour hire reforms that had been strongly contested by employers.

    This reform targets gaps in laws that have allowed some large and profitable corporations, including BHP and Qantas, to use labour hire to engage workers on rates that undercut those agreed in enterprise agreements.

    A Senate Inquiry heard evidence that, as a result of employers using labour hire this way, workers were being paid up to tens of thousands of dollars less than employees doing the same work in the same workplace.

    As with the government’s 2022 Secure Jobs, Better Pay bargaining reforms, opposition by some employers to this latest reform has been intense, involving an expensive and unnecessary scare campaign.

    The mining employers’ advocacy body, the Minerals Council, was reported to be spending up to $24 million to fight the labour hire changes and, on the day of the bill’s passing, issued a statement greatly exaggerating the nature and extent of the reform by declaring it to be a ‘‘dramatic rewriting of workplace law’’.

    To get the IR changes through the Senate the government needed to secure the support of key independents and, as a result of this, some parts of the Closing Loopholes bill were set aside to be considered by Parliament in February.

    The parts of the bill set aside until next year include minimum standards for digital platform and road transport workers and changes that make it easier for casual employees who want to become permanent.

    Getting the platform and road transport industry changes in place will be critical for improving working lives and ensuring fair pay and conditions for tens of thousands of low-paid and vulnerable workers who are currently without most rights to minimum standards at work, due to their classification as contractors.

    The reticence of independent senators Jacqui Lambie and David Pocock to pass the platform and road transport industry reforms is perhaps not surprising, given the strong and powerful lobby groups and companies such as Uber, who insist all platform workers are entrepreneurs and small business people not in need of protections, despite the numbers of young, inexperienced, migrant and vulnerable workers in these arrangements.

    Platforms say the costs to consumers will increase exponentially. Small business groups argue reforms are all too complicated and may have far-reaching unintended consequences.

    Labour law experts disagree. It is to be hoped that the extra time for consideration of the proposed changes gives the independents an opportunity to go with the evidence.

    With the support of the Greens and the independent senators some other important Closing Loopholes reforms were in the legislation passed.

    These include new laws to make wage theft a criminal offence, reforms to better protect some workers’ redundancy entitlements and changes to enhance work health and safety.

    Industrial manslaughter will now be a criminal offence, protections for workers experiencing family and domestic violence will be strengthened, and first responders/emergency workers with PTSD will have improved access to support.

    Making superannuation theft a crime is a welcome outcome of the government’s negotiations with the Greens.

    There can be little doubt of the need to act on intentional non-payment of superannuation, with the Australian Taxation Office recently reporting that Australian workers are owed more than $2 billion in unpaid superannuation.

    Superannuation theft not only affects workers’ retirement incomes but can see death and disability insurances cancelled.

    The government has also agreed to consider an amendment to provide workers with a right to disconnect from work outside work hours.

    Despite the protestations of some employer groups there is not much that can be called radical in the Closing Loopholes reform package.

    For the most part, the reforms passed this year and the ones still on the table are exactly what the government says they are – improvements to plug gaps and close loopholes that have allowed some workers to miss out on basic protections, standards and benefits that most other workers enjoy and most employers are happy to provide.

    The post Closing Loopholes: Important repairs to the industrial relations system, no more, no less appeared first on The Australia Institute's Centre for Future Work.

  • New laws for employee-like gig workers are good but far from perfect

    The Workplace Relations Minister Tony Burke has described proposed new laws to regulate digital platform work as building a ramp with employees at the top, independent contractors at the bottom, and gig platform workers halfway up.

    The new laws will allow the Fair Work Commission to set minimum standards for ‘employee-like workers’ on digital platforms. They are a key part of reforms in the government’s Closing the Loopholes workplace relations bill introduced into parliament this week, and are part of a commitment made before the 2022 election.

    So, what will being halfway up the ramp mean for ‘employee-like’ platform workers? Under the changes, minimum standards can now be set for platform workers, including rideshare drivers, food delivery workers and care workers. Up until now, as independent contractors, digital platform workers have had very few rights, including no rights to minimum pay rates.

    With the changes, the Fair Work Commission will be able to set minimum standards for workers concerning payment terms, deductions, working time, record-keeping, insurance, consultation, representation, delegates’ rights and cost recovery and other matters.

    Other provisions in the legislation are designed to protect workers from being unfairly deactivated from platforms, which is equivalent to being unfairly dismissed, and allow collective agreements for platform workers where platform operators agree.

    The laws will apply only to ‘employee-like’ platform workers, meaning workers who are low-paid (compared to what they would be paid under an award), have low bargaining power and/or have low control over their work.

    There are some restrictions on the standards the Fair Work Commission can set for platform workers. Minimum standards cannot be set concerning overtime rates or rostering arrangements. Nor can the Commission use its standard-setting powers to turn a platform worker into an employee.

    So, ‘employee-like’ platform workers will not have all the minimum standards and rights that employees have. However, halfway up the ramp, they will be much better placed than they were with the minimal rights of independent contractors.

    Overall, these changes are very positive for platform workers and should prevent exploitation of vulnerable workers. However, the reforms stop short of responding to longstanding calls for platform workers, including rideshare, food delivery and care workers, to be treated as employees, and for platform operators to be treated as employers, an approach that has recently been agreed by the 32 member countries of the European Union.

    The proposed reforms in the Closing Loopholes bill don’t go as far as aiming to ensure that how a person is employed can’t leave them without the rights and standards most comparable workers enjoy at work. It leaves platform workers halfway up the ramp in a new worker category with lesser rights than employees.

    The creation of this new category of ‘employee-like’ worker does open up the possibility that some employers may seek to reform their workforces and business models to engage workers who are in the new cheaper worker category, in place of employees. Internationally, where a third category of worker has been created by governments in order to provide protections for low-paid independent contractors, there has been some substitution of employees for workers with less favourable conditions.

    The Closing the Loopholes approach to platform workers also suggests we need to think harder about how to support better flexibility at work.

    The platform work reforms appear to be built on an assumption it is ok for workers who need or want flexibility to have lesser standards and fewer rights at work because of this. Most platform workers value the flexibility they have in their jobs. But that does not mean they should have to trade off rights and standards. Flexibility is not a benefit that accrues only to workers. Consumers and platform operators want flexible services too.

    Originally published in The New Daily 8 September 2023

    The post New laws for ‘employee-like’ gig workers are good but far from perfect appeared first on The Australia Institute's Centre for Future Work.

  • The key legislation changes that will help workers get a better deal

    However, with recent changes to industrial relations laws, and with unemployment at record low levels, some workers are now in a better position to bargain for better pay and conditions.

    Slow wages growth, low bargaining coverage and high levels of insecure work are good indicators of how workplace power imbalances have stifled prospects for many employees.

    Over the last decade Australia’s wage growth has been at its weakest since the middle of the last century, coverage of workers by enterprise agreements has rapidly eroded, and over a third of workers are now in insecure casual, labour hire or fixed-term jobs.

    Bargaining hobbled

    Despite low unemployment – meaning there are fewer workers available to fill vacancies – employees have not been able to bargain for higher pay and the real value of wages has been declining.

    Industrial relations reforms passed by parliament in late 2022 are designed to restore some balance to the workplace.

    The changes don’t mean there is a massive shift of power to workers but, with the removal of some barriers to bargaining, there should be greater opportunity for employees to gain improvements at work.

    At the present time, the labour market is tight and employers are competing to find and retain workers so they may be prepared to offer higher wages and other benefits.

    Already, unions representing early childhood education and care workers have applied to use a new multi-employer bargaining option – which came into force last month – to seek a pay increase for these low-paid workers.

    While it will be some time before we see any outcomes, there is early evidence that other bargaining reforms are getting workplace bargaining moving after years of decline. Certainly some employers may now be more ready to negotiate enterprise agreements to avoid being roped into multi-employer agreements.

    Other non-bargaining reforms introduced as part of the 2022 Secure Jobs, Better Pay package attracted much less attention than bargaining changes during last year’s debates over the new laws.

    However, these other changes are not insignificant for working conditions.

    The right to flexible work

    More than half of all employees now have new rights to request flexible work, including employees who are parents of children of school age or younger, carers and workers aged 55 or over, those with a disability or people experiencing or supporting someone experiencing family violence.

    Before the flexibility changes, which came into effect in June, some limited flexible work rights already existed. However, now there is much greater onus on employers to show there are reasonable business grounds if they wish to refuse employees’ requests for flexible work.

    While this is no guarantee that all employees can access the flexibility they need, it has potential to be a game-changer in some workplaces through pushing employers to find ways to organise work for greater employee-friendly flexibility.

    Research shows that Australians are some of the most stressed and overworked of all workers worldwide. We know we need better-work life balance.

    Post-pandemic, there is widespread experience of more flexible work arrangements and greater recognition of the benefits of flexible work.

    There is some impetus to lock in more employee-friendly flexibility, and workers are having some success in achieving these changes through collective bargaining.

    Working lives are longer than ever, including as the retirement age has just been increased to 67 years.

    Along with pay increases that stop the decline in the value of wages, bargaining for better work-life balance will continue to be important.

    The post The key legislation changes that will help workers get a better deal appeared first on The Australia Institute's Centre for Future Work.

  • Multi-Employer Bargaining Necessary for Fixing Wages Crisis

    But as our Policy Director Fiona Macdonald argues in this new commentary for The Conversation, multi-employer bargaining is already allowed under various existing provisions of the Fair Work Act. The problem is that those provisions do not work. For example, the low-paid bargaining stream in the Fair Work Act has yet to result in a single multi-employer agreement, due to its stringent conditions and inconsistent application by the Fair Work Commission.

    Dr Macdonald argues that reforming these multi-employer bargaining streams so they can actually work will be an important part of any strategy to revitalise stagnant wages in Australia.

    For more details on the failure of existing multi-employer bargaining streams, and core principles for a stronger bargaining system, please also see the Centre for Future Work’s submission to the Senate inquiry on the Secure Jobs, Better Wages reform package (co-authord by Dr Macdonald, Jim Stanford, and Lily Raynes).

    The post Multi-Employer Bargaining Necessary for Fixing Wages Crisis appeared first on The Australia Institute's Centre for Future Work.

  • Work in the Care Economy Vital for Future Well-Being

    Our Policy Director for Industrial and Social issues, Dr Fiona Macdonald, recently discussed these issues in a feature conversation with Richard Aedy on the ABC RN program, The Money. They discussed the size of the care workforce, the challenges faced by care providers and participants alike, and the need for government reform.

    The post Work in the Care Economy Vital for Future Well-Being appeared first on The Australia Institute's Centre for Future Work.