9 December 2020

Porter’s IR omnibus bill is a predictable grab-bag of attacks on workers

The Morrison/Porter Government’s threatened industrial relations reforms have been released, and as predicted, the round table process was a rope-a-dope strategy designed to provide a veneer of consultation before pressing ahead with an aggressively pro-employer agenda:

  • The business lobby has been livid that the courts pulled the rug out from under their long-running scam of misclassifying regular employees as casuals. The government plans to retrospectively legalise this scam, allowing employers to keep up to $39 billion in previously stolen wages.
  • The government will also introduce a new definition of “casual” worker, but this would still include a sham arrangement where there is in fact “a regular pattern of hours” for up to a year. The bill puts the emphasis on the label used by the employer in setting up the sham arrangement, rather than the reality of the situation. After 12 months before the employee can beg the employer to acknowledge that they are not really casuals — but if the employer refuses at that point, the worker would need to sue them in the Federal Court. Because these sham casual workers have no protection from unfair dismissal, they could be sacked at 11 months without recourse.
  • Some employers — especially in the mining industry — would be allowed to establish so-called “greenfields agreements” (that’s an “agreement” between an employer and hypothetical employees who don’t exist yet) that would apply for 8 years. This is intended to cover the whole life of a project, and would mean the employer could make a take-it-or-leave-it job offer and the workers would never have an opportunity to bargain for improved wages and conditions. The supposed safeguard here is that the so-called “agreement” would need to include a nominal pay rise each year, but this would not need to keep up with pay rises across the economy — even a one cent “pay rise” would satisfy Porter’s scheme.
  • A new classification of “part-time flexi” would allow permanent part-time workers to be “offered” more hours without overtime pay. The risk here is that full-time roles will be replaced with part-time flexi positions, with just 16 hours guaranteed and the rest of the hours effectively converted to casual work without a casual loading. This would put full-time workers at risk of being misclassified as part-time flexi, and then stripped of hours and income without warning, increasing their insecurity and threatening their ability to assert their rights in the workplace.
  • Businesses will be given greater opportunity to circumvent the Better Off Overall Test that protects workers from deals that undercut minimum pay and conditions. The current law already allows this “where the agreement is part of a reasonable strategy to deal with a short-term crisis” — but the new law will apply a broader, looser set of criteria. While the business lobby says this is to allow for the impact of coronavirus, that is only one of the criteria and there is no minimum threshold of impact to trigger the provision. Businesses would have up to 2 years to use this “temporary” exemption, but the conditions set would be locked in indefinitely. This is not an unlikely scenario — many businesses are continuing to legally pay below minimum wage by relying on arrangements they put in place under WorkChoices almost 15 years ago.
  • After his hand was forced by the Migrant Work Taskforce, Christian Porter has agreed to criminalise wage theft — but as predicted, the crime will be defined narrowly so that the vast majority of deliberate wage theft is not included. And while even a single incident of theft by a worker carries a maximum penalty of 10 years imprisonment around the country, even the few “systemic pattern” wage thieves criminalised by Porter’s scheme will only face 4 years jail.
  • Only the under-resourced, ineffective Fair Work Ombudsman (which recently decided to stop referring criminal matters for prosecution) will be allowed to bring a charge under this provision — Victoria’s Wage Inspectorate, for example, will be locked out. By contrast, State police regularly charge people with other federal crimes if they have sufficient evidence.