Yesterday Employment and Workplace Relations Minister Tony Bourke provided a high-level summary of the Albanese Government’s second set of IR reforms, commonly referred to as the Tranche 2. These reforms follow the ratification of the Tranche 1 reforms last year which made provision for the reintroduction of multi-employer bargaining in Australia.
In what amounts to a rather unusual approach, at least from the perspective of traditional political tactics, the Minister provided a National Press Club Address to outline the key elements of the proposed reforms – and the rationale for the proposed changes – before tabling the draft legislation package in the Australian Parliament.
As a result, there have been numerous claims made by Australia’s peak business groups about the challenges that the changes will create for Australian businesses and the wider economy – but without the detail, it is hard to validate the merits or otherwise of these claims. Nonetheless, we are likely to see a vigorous public debate between Albanese Government business groups in coming weeks.
“ACAPMA has been consulting with the government quietly on issues relating to casuals and the proposed trucking tribunal and even considering the statements made by the Minister this week, we don’t see any major issues for member businesses at this time”, said ACAPMA CEO Mark McKenzie.
“Of course, the devil will be in the detail, and we also need to be conscious of how the Fair Work Commission might interpret these new laws, if they are passed, as well as the emergence of any new legal precedents in areas such as Labour Hire contracts and minimum working conditions for gig economy workers”, added Mark.
But until that detail is available and debated in the Australian Parliament, here is what we know now.
Four of the key changes are most relevant to the businesses operating in the fuel industry and these are briefing outlined below.
- Criminalisation of Wage theft
During his address, Minister Burke stated that “Most underpayments are not wage theft. Most underpayments are a mistake. Sometimes, there can be issues of recklessness and things like that. But often, there’s just an honest mistake that’s been made, and we don’t want to catch any of that with the criminal law”.
The Minister went on to state, however, that there are some cases where employers are deliberately and knowingly cheating workers of wages – a practice that was likened to an employee taking money from the till. This is the behaviour that the Minister is seeking to target via the introduction that will impose criminal charges for employers who deliberately under pay their staff.
“ACAPMA has been working closely with the Government’s consultation process and Minister Burke’s office throughout the development of the new laws on wage underpayment. We have communicated the industry’s zero tolerance for wage underpayment and confirmed strong support for the imposition of criminal penalties for those engaging in deliberate and systemic wage underpayment,” said Mark.
ACAPMA will continue to press for the inclusion of effective safeguards in the new laws to ensure that businesses that have made an honest mistake repay the wages that are due but are not criminally prosecuted.
We will also be interested to understand how the Government will approach this matter in respect of record keeping issues. ACAPMA opposes the imposition of criminal penalties for record keeping breaches (in cases where there is no evidence of actual wage theft), unless it can be proved that the business is deliberately manipulating wage records (i.e. akin to fraud and is likely motivated by a desire to hide deliberate wage underpayment practices).
- Casual employment laws
Throughout the process, ACAPMA has maintained that there are no real issues with the operation of existing casual employment laws – particularly in respect of the definition of a casual and the process for a casual wishing to convert to permanent employment where they have worked regular hours within a business. This position is based on the industry’s experience of the operation of the existing casual to permanent conversion laws since 2009 and the operation of the new definition of a casual passed by the Australian Parliament in 2021 – after extensive consultation involving business groups and unions.
“Given that the Government’s rationale for these latest changes remains unclear, despite significant business and government discussion, we remain wary about the detail of the proposed laws”, said Mark.
The new laws propose the creation of an additional process for casual to permanent conversion, where casual employees that want to convert to permanent will be able to request such conversion after just 6 months of employment – not the current 12months that requires a business to offer permanent conversion to eligible employees.
The proposed change is in addition to, not replacing, the current requirement for businesses (other than small businesses) to actively offer conversion to eligible casual employees after 12 months of engagement.
ACAPMA notes that the experience of fuel and convenience industry over the last 14 years that a positive casual conversion requirement has been in place, there have been almost no requests from staff to convert from casual to permanent employment.
“The overwhelming number of casuals in our industry are casual by choice. They value the ability to reject shifts without having to apply for leave or provide explanations. They value the ability to change their availability up and down based on their life circumstances, as well as their ability to undertake other work”, said Mark.
“Most of the people who work in our industry are casual by their choice and so we expect the impact of the proposed change to be minimal”, added Mark.
ACAPMA, however, is yet to see the detail and will assess the draft legislation once the detail is available.
- Changes to laws governing Labour Hire
The Minister outlined the creation of new legislative requirements for businesses that have a registered agreement, such as an Enterprise Bargaining Agreement (EBA), to ensure that any workers who are engaged via Labour Hire companies are paid at least the same as the businesses employees when they are doing the same work.
This proposed change is only relevant to your business if (a) you utilise the services of labour hire companies, and (b) you have an Enterprise Bargaining Agreement in place.
“The vast majority of our businesses utilise the relevant national Awards – not Enterprise Agreements – and few use labour hire staffing arrangements so we also expect that this will not be an issue for our industry. Rather, it is likely to be of greater concern to the mining and construction industry in Australia”, said Mark.
- Laws relating to ‘Employee-Like’ Workers
The bulk of the Ministers Address this week was focussed on the need for new employment protections for ‘Employee-Like’ Workers. The Minister went on to explain that these workers included Gig Economy Workers and Independent Contractors.
In order to be considered ‘Employee-Like’, the Minister stated that the arrangements under which the employee is engaged would need to be engaged through a digital platform where the employee (a) has low bargaining power, (b) has low control over their work scope, and (c) is paid below the relevant Award for the industry in which they are operating.
The Minister explained that the detailed legislation has been developed to ensure that the changes do not create a situation where a gig worker or an independent contractor is ‘deemed’ to be an employee, or is forced into rostered hours, or paid overtime.
“That said, ACAPMA is reserving its position on these draft changes until we have had a chance to evaluate the detailed legislation”, said Mark.
The key take-away Australian Fuel transport, fuel wholesale and Fuel & Convenience Businesses
At this stage and having been engaged in relevant elements of the consultative process, ACAPMA believes that the Tranche 2 IR reforms will have a modest impact on businesses operating in the Australian fuel industry. This assessment, however, is based on the proviso that the detailed legislation is consistent with the Minister’s headline statements of this week and the discussions with Government to date.
“One of the more notable aspects of this second package of reforms is that legislation proposing the re-establishment of the infamous ‘truckies tribunal’ and new right of access powers of union delegates to payroll records of non-union employees appears to have been dropped for now”, said Mark.
ACAPMA will, however, continue to work with the Government, the Federal Department of Employment, the Federal Opposition, the minor parties, and the political cross bench once the Bill is tabled in the Australian Parliament.
“We will also continue to keep our members informed as to the progress of these changes and any likely significant impact on the operation of their businesses”, concluded Mark.
Any members with significant concerns in relation to the proposed reforms should email communications@acapma.com.au or call the ACAPMA Secretariat on 1300 160 270.
ACAPMA
