Potential Employment Law Changes Post Federal Election 2019

May 9, 2019

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With the 2019 Federal Election quickly approaching, it is timely to examine proposed changes to industrial relations and employment law landscape in Australia. It is important for employers and employees to remain aware of potential changes to laws which could limit or broaden their rights under the national employment law.

The following is a comparison table between the current and proposed policies under the current Liberal-National Coalition (Coalition) and the proposed reforms articulated by the Australian Labour Party (ALP):

Family and Domestic Violence LeaveEmployees are entitled to five days’ unpaid family and domestic violence leave each year under the National Employment StandardsThe ALP has committed to increasing the family and domestic leave to 10 days’ paid leave.
Penalty RatesNo proposed change to setting the minimum wage and penalty rate cuts decision by the Fair Work Commission (FWC).The ALP has introduced the Fair Work Amendment (Restoring Penalty Rates) Bill 2018 (Cth) to declare that any penalty rate determination made by the FWC after 21 June 2017 will be of no effect, and that a modern award cannot be varied to reduce an employee’s take-home pay.
This amendment would only apply prospectively.
Superannuation GuaranteesThe Coalition has not indicated that it will reform superannuation guarantees under the NES.  The Coalition is likely to maintain the current framework.
  • The ALP has committed to increase the superannuation contribution guarantee from 9.5% to 12%;
  • The ALP would amend the NES to enable employees to recover unpaid superannuation through the FWC or the Federal Court.
Enterprise BargainingThe Coalition has not indicated that it will propose changes to laws regulating protected and unprotected industrial action. The Coalition is likely to maintain the current framework.The ALP will consider amendments to the Fair Work Act 2009 (Cth) (FWA) to allow workers to bargain at an industry wide level rather than at the individual workplace level.
Casual EmployeesThe Coalition has not announced that it plans to insert a legal definition of “casual employment” into the FWA.
  • The ALP has committed itself to inserting a legal definition of “casual employment’ into the FWA to create a legislative test to determine if an employee is casual;
  • Long-term casual employees will be given the right to request a conversion to part- or full-time employment, with a review by the FWC if the request is unreasonable denied.
Industrial ManslaughterThe Coalition does not support changes to industrial manslaughter laws and supports the current framework.The ALP aims to introduce an industrial manslaughter offence into state/territory criminal codes within its first year.
Whistleblower LawsThe Coalition supports the new private sector whistleblower regimes which commence on 1 July 2019 but does not support a reward scheme or a ‘Whistleblower Protection Authority’.
  • The ALP aims to create a single Whistleblowing Act;
  • Wishes to introduce a whistleblower reward scheme;
  • Aims to establish a Whistleblower Protection Authority.
General Proposed Changes
  • Introduce a ‘reasonable person’ test to determine if someone is an employee as opposed to a contractor;
  • Strengthen protections for sham contracting;
  • May propose to criminalise serious wage underpayments;
  • Develop guidelines to promote good faith bargaining;
  • Emphasise gender pay equality considerations, e.g., when setting the minimum wage.