Many Australian employers are preparing for changes to enterprise bargaining laws that will impact their workplaces later this year. These laws were passed by the Australian Parliament in December 2022 under the “Secure Jobs and Better Pay” Bill and make provision for multi-employer bargaining and the forced retirement of “Zombie” Enterprise Bargaining Agreements (that is, those EBA’s that were established before 31 December 2009) on 6 December 2023.
If your business has a Zombie agreement, then you have an urgent legislative obligation to advise your staff that the agreement will expire before 6 June 2023.
The other changes introduced under this Bill will see the introduction of multi-employer bargaining agreements and businesses need to be aware of the potential risk of these changes and what they can do to mitigate this risk (see IR Reforms – now and next year – ACAPMAg).
But, as advised last year, the Albanese Government is continuing to press ahead with additional reforms in 2023. Stakeholder consultation on these reforms commenced in April 2023 and, like many business groups and industry bodies, ACAPMA has been (and will continue to be) an active participant in this process.
The Government is consulting on a total of 11 proposed reforms to the current Industrial Relations System. A summary of these changes (and the related Discussion Papers) can be found on the Department of Employment and Workplace Relations (DEWR) website at 2023 Workplace Reform Consultations – Department of Employment and Workplace Relations, Australian Government (dewr.gov.au).
“Three of the proposed reforms being considered by the Australian Government will impact the workplaces of fuel businesses, both fuel retail and fuel distribution, to a significant extent. One is good, one is bad and the third is just plain ugly”, said ACAPMA CEO Mark McKenzie.
1. Proposed Criminalisation of Wage Theft (The ‘Good’)
The first reform relates to the criminalisation of wage theft. This is an area that, even as a representative of Australian employers, ACAPMA is supporting given (a) the absolute right of workers to receive the wages they are legally entitled to, and (b) the need to penalise businesses that gain an unfair competitive advantage over other businesses in a competitive market, by deliberately underpaying wages.
The Discussion paper on this issue proposes the introduction of criminal penalties for wage underpayment offences that are proven at law. A graduated regime of criminal penalties is proposed, where the harshest penalties are reserved for deliberate and systemic wage underpayment offences. Lesser, but still criminal, penalties are proposed where businesses engage in reckless conduct that results in wage underpayment.
Applying criminal penalties where there is a knowing breach is a bit of a ‘no brainer’ but ACAPMA also supports the application of penalties where the employer has been ‘openly reckless’ in not ensuring correct payments are made (which is somewhat akin to criminal negligence under Australia workplace health and safety laws).
“Importantly, neither approach will result in criminal penalties where the business has made an ‘honest mistake’, or series of mistakes, but taken reasonable steps to minimise the risk of making wage underpayments”, said Mark.
The Government’s proposal also suggests introducing criminal laws where wage records are found to be; fraudulent, non-existent or incomplete. This measure is opposed by ACAPMA, except in cases where authorities can prove deliberate manipulation of records (which is akin to fraud – and is likely motivated by an intent to commit wage underpayment offences).
In responding to the Government’s proposal, ACAPMA noted that the Government’s Discussion Paper fails to deal with the underlying visa and immigration system factors that appear to be at least partly contributing to wage underpayment in Australian workplaces.
“Our submission emphasised the need for the Government to examine all of the factors contributing wage underpayment – including the operation of Australia’s visa system – if the issue of wage underpayment is to be truly eliminated from Australian workplaces, said Mark.
A copy of ACAPMA’s response to the Government’s consultation on the proposed criminalisation of wage underpayment can be downloaded at https://acapmag.com.au/wp-content/uploads/2023/05/WR-Reform-Submissions-Wage-Underpayment-May-2023.pdf.
2. Changes to Casual employment arrangements (the ‘Bad’)
Despite significant changes being made to casual employment laws by the Australian Parliament in March 2021, the Government is proposing to again seek to redefine what it means to be a ‘casual’ employee.
“An intriguing element of this particular discussion is that the government is starting from the position that there is a problem with the current arrangement for casual employees but, unlike the other areas of reform, has not defined the actual problem”, said Mark.
In fact, the discussion presented on the DEWR website contains a series of ideological assertions that are highly contestable. They look more like the ambit claims of the union movement than a considered position of a government seeking to balance the interests of employers and employees.
While ACAPMA remains open to conversation about possible remedies to issues associated with the current operation of casual employment arrangements in Australia, the Association does not believe that there are any significant issues at present.
Further, ACAPMA maintains that the experience of our industry provides evidence of over 14 years of employee empowerment to move from casual employment to permanent employment – with less than 1% of employees opting to convert over that time.
ACAPMA firmly believes that, in the absence of a clear statement of what problem the government is seeking to address, any changes to the laws introduced just two years ago risks serious unintended adverse economic consequences for fuel businesses and Australian fuel consumers alike.
A copy of ACAPMA’s submission to the Australian Government on proposed changes to casual employment arrangements can be downloaded at https://acapmag.com.au/wp-content/uploads/2023/05/WR-Reform-Submissions-Casuals-May-2023.pdf.
3. Expansion of the powers of the FWC to set minimum standards for transport (the ‘Ugly’)
In a move that appears to be reminiscent of the ill-fated Road Safety Remuneration Tribunal, another reform being proposed involves expanding the power of the Fair Work Commission (the FWC) to set minimum industry standards for the Australian Road Transport Industry.
While no one will argue with the need to ensure that wage structures and working conditions do not incentivise heavy vehicle operators to take safety risks by not following all road safety laws (e.g. Fatigue Management), there are already bodies such as the National Heavy Vehicle Regulator (NHVR) that have clear responsibility for the safe operation of the road transport industry.
This proposal therefore risks duplicating the roles of existing regulators and/or assigning responsibility for actions targeting road safety improvement to a body that clearly does not have the necessary industry knowledge or expertise.
“Our big fear on this proposal is a repeat of the disastrous experience of the RSRT of 2016 where legislative orders were issued that did not make safety sense but created significant financial hardship for medium and small freight businesses”, said Mark.
As with the proposed Casuals reform, this initiative is being revisited without any business case explaining why the change is necessary. For that reason, this measure is openly opposed by ACAPMA.
A copy of ACAPMA’s submission to the Australian Government on proposed changes to casual employment arrangements can be downloaded at https://acapmag.com.au/wp-content/uploads/2023/05/WR-Reform-Submissions-FWC-Transport-powers-May-2023.pdf.
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