[Australia] 2021 employment law proposals

2021 will be a significant year for employment law changes in Australia as there are a number of wide-ranging proposals in the pipeline, HRD breaks down the key things employers need to know.

The Coalition government’s Industrial Relations reform bill - unveiled at the end of 2020 - is likely to have the biggest impact on employers across the country.

Defining a casual employee

The most far-reaching aspect of the proposed Fair Work Amendment bill reportedly seeks to create a statutory definition of a casual employee for the first time.

It follows the High Court rulings of Workpac vs Skene and Workpac vs Rossato which ruled that a worker could not be defined as casual if their work patterns reflected regular, ongoing employment.

As such, the employee may be eligible for entitlements like annual leave and sick pay, as well as their casual loading.

Proposed changes to the BOOT

The most controversial element of Porter’s bill is around plans to amend the Better Off Overall Test (BOOT) which underpins enterprise agreements.

Employers argue the BOOT is too complex and means enterprise agreements often fall down due to the prescriptive nature of the process.

The reform would allow employers affected by COVID-19 to ask the Fair Work Commission for an exemption to the BOOT for new agreements made until 2023. (Link via original reporting)

The proposed change has been met with strong opposition from unions and the Labor party, meaning the Coalition may struggle to get it through government as it currently stands.

Challenging the status of gig economy workers

There is a considerable grey area when it comes to gig economy workers in Australia.

As the trade of gig employers continues to expand, more legal challenges are expected in court as the unions continue to push for better rights.

In Australia, gig workers are considered independent contractors rather than employees however it is a distinction that unions continue to challenge.

Unlike the situation with casual workers, there is currently no proposed federal legislation on gig workers, meaning the courts will play a key role in deciding the legalities on a case by case basis.

Stepping up compliance and enforcement

Another key element of the Fair Work Amendment bill is the plan to criminalise wage theft and raise the penalty for employers found to be underpaying staff on a deliberate and sustained basis.

There has been a ramping up of the FWC’s efforts to tackle underpayments and that will continue throughout 2021.

Employers following the FWC guidance in good faith would then be protected from being persecuted in the event of accidental underpayments.

Continuing COVID-19 measures

The JobKeeper scheme is set to end in March but some of the measures brought in may last longer.

Requests for flexible work arrangements have the potential to become contentious as businesses look to bring employees back into the office later in the year.

Workers who have the right to request flexible arrangements will now have a stronger case if their employer tries to revert to traditional working days and hours.

2021 will be a significant year for employment law changes in Australia as there are a number of wide-ranging proposals in the pipeline, HRD breaks down the key things employers need to know.

The Coalition government’s Industrial Relations reform bill - unveiled at the end of 2020 - is likely to have the biggest impact on employers across the country.

Defining a casual employee

The most far-reaching aspect of the proposed Fair Work Amendment bill reportedly seeks to create a statutory definition of a casual employee for the first time.

It follows the High Court rulings of Workpac vs Skene and Workpac vs Rossato which ruled that a worker could not be defined as casual if their work patterns reflected regular, ongoing employment.

As such, the employee may be eligible for entitlements like annual leave and sick pay, as well as their casual loading.

Proposed changes to the BOOT

The most controversial element of Porter’s bill is around plans to amend the Better Off Overall Test (BOOT) which underpins enterprise agreements.

Employers argue the BOOT is too complex and means enterprise agreements often fall down due to the prescriptive nature of the process.

The reform would allow employers affected by COVID-19 to ask the Fair Work Commission for an exemption to the BOOT for new agreements made until 2023. (Link via original reporting)

The proposed change has been met with strong opposition from unions and the Labor party, meaning the Coalition may struggle to get it through government as it currently stands.

Challenging the status of gig economy workers

There is a considerable grey area when it comes to gig economy workers in Australia.

As the trade of gig employers continues to expand, more legal challenges are expected in court as the unions continue to push for better rights.

In Australia, gig workers are considered independent contractors rather than employees however it is a distinction that unions continue to challenge.

Unlike the situation with casual workers, there is currently no proposed federal legislation on gig workers, meaning the courts will play a key role in deciding the legalities on a case by case basis.

Stepping up compliance and enforcement

Another key element of the Fair Work Amendment bill is the plan to criminalise wage theft and raise the penalty for employers found to be underpaying staff on a deliberate and sustained basis.

There has been a ramping up of the FWC’s efforts to tackle underpayments and that will continue throughout 2021.

Employers following the FWC guidance in good faith would then be protected from being persecuted in the event of accidental underpayments.

Continuing COVID-19 measures

The JobKeeper scheme is set to end in March but some of the measures brought in may last longer.

Requests for flexible work arrangements have the potential to become contentious as businesses look to bring employees back into the office later in the year.

Workers who have the right to request flexible arrangements will now have a stronger case if their employer tries to revert to traditional working days and hours.