2023 Workplace Reform Consultations
30 May 2023
On 22 May 2023, the Law Council provided a submission to the Department of Employment and Workplace Relations in relation to a consultation on a series of issues papers on a range of industrial relations matters.
The four papers to which the consultation relates were titled:
- ‘Same Job, Same Pay’: measures to strengthen enterprise bargaining and wages;
- Compliance and enforcement: Criminalising wage theft;
- Extending the powers of the Fair Work Commission to include ‘employee-like’ forms of work; and
- Providing stronger protections against discrimination, adverse action and harassment.
The Law Council’s submission addressed targeted questions across each of the above consultation papers. In its response, the Law Council:
- Endorsed the principle of ‘same job, same pay’ and is supportive of a sensible framework for responding to the increasing use of labour hire arrangements. New measures to address underpayment of wages and entitlements by employers are supported, including increased pecuniary penalties, particularly where employers recklessly or deliberately and knowingly underpay employees. However, any consideration of increased or alternative penalties, including criminal sanctions (as is currently being considered by the Australian Government), ought to be carefully calibrated to appropriately reflect the different levels of seriousness of the conduct;
- Acknowledged the need to strengthen protections for independent contractors, including those operating through online platforms in the gig economy, and supported policies designed to support workers across different models of independent contracting who seek to balance flexibility, control over the work undertaken and in some cases the price of services, with fair levels of remuneration and conditions of work;
- Supported calls for the Fair Work Commission to develop minimum standards for independent contractors, including those in the road transport industry, to protect contractors and ensure the industries in which they work remain viable. However, any expansion in the Fair Work Commission’s jurisdiction will add complexity to the employment law system, with resourcing implications for the Commission; and
- Provided views on a range of proposed measures ostensibly directed to reduce complexity and inconsistency in the anti-discrimination framework in the Fair Work Act 2009 (Cth). The Law Council expressed support for some measures, such as amendment to the Fair Work Act to expressly make clear that discrimination provisions in that Act cover both direct and indirect discrimination. It also raised a number of matters for consideration in relation to proposals which would result in amendments to the Fair Work Act which draw on terms and concepts from anti-discrimination legal frameworks, to ensure that any such amendments are properly adapted to the Fair Work Act regime.
The Law Council’s full submission can be found here.