(Photo above: Victorian Trades Hall Council, 15.11.18, advertisement supporting Labor proposal for industrial manslaughter offence under Victorian law)
Ahead of the state election on Saturday 24 November, I thought a quick look at the positions of Labor, Liberal and the Greens on workplace issues might be useful.
Given that Victoria has referred most of its legislative powers over industrial relations to the Commonwealth, the state Labor Government has had a busy agenda in this area over the last four years. The following are among the key measures implemented since 2014:
- Grand Final Friday public holiday: originally unpopular with business groups, the Liberal Opposition now supports retaining this additional public holiday.
- Long Service Leave Act changes: these include allowing employees to take pro rata long service leave (LSL) after seven years of continuous employment (rather than 10 years previously), and counting periods of parental leave as service for purposes of calculating entitlements to LSL. (see: http://www.business.vic.gov.au/hiring-and-managing-staff/long-service-leave-victoria/long-service-leave-act-2018-faqs)
- Long Service Benefits Portability Act: enabling workers in the contract cleaning, security and community service sectors to carry across their LSL entitlements between different employers. This aims to address the transient nature of work in these three industries, with high levels of contract/project-based employment resulting in frequent changes of employer, so employees do not qualify for LSL. Portable LSL entitlements are funded through a levy on employers who must register under the scheme. (see: http://www.business.vic.gov.au/hiring-and-managing-staff/long-service-leave-victoria/portable-long-service-leave)
- Labour hire licensing inquiry and legislation: the Labour Hire Licensing Act recommended by the 2015-16 independent inquiry establishes a scheme requiring labour providers in Victoria to obtain a licence from the Labour Hire Licensing Authority. This scheme responds to the evidence the Inquiry heard of widespread underpayments and other workplace law breaches by ‘rogue’ labour contractors. (see: https://economicdevelopment.vic.gov.au/what-we-do/industrial-relations/victorian-labour-hire-licensing-scheme# and https://labourhireauthority.vic.gov.au/)
- Victorian Wage Inspectorate: established to enforce the proposed ‘wage theft’ law (see below) and existing Victorian laws covering child employment, LSL and independent contractors in the transport and forestry sectors. (see: https://economicdevelopment.vic.gov.au/what-we-do/industrial-relations/victorian-wage-inspectorate# which also explains the Owner Drivers and Forestry Contractors Amendment Bill currently before state Parliament)
- Inquiry into the on-demand economy: the Government recently set up this inquiry, chaired by former Fair Work Ombudsman (FWO) Natalie James, to look into claims of workers being underpaid and subjected to other forms of mistreatment in the evolving gig economy. (see: https://economicdevelopment.vic.gov.au/what-we-do/industrial-relations/inquiry-into-the-victorian-on-demand-workforce and https://labourlawdownunder.wordpress.com/2018/11/17/foodora-case-first-definitive-australian-ruling-that-a-gig-worker-was-an-employee/)
Further policy commitments announced by Labor include:
- Criminalising ‘wage theft’: Labor will pass legislation to impose criminal liability upon employers who deliberately withhold wages, superannuation or other employee entitlements (or falsify employment records). The penalties will include maximum fines of almost $200,000 for individuals, just under $1 million for corporations, and up to 10 years’ imprisonment. (see: https://www.premier.vic.gov.au/dodgy-employers-to-face-jail-for-wage-theft/) The arguments about the need to address underpayments through new forms of liability, in addition to those currently found in the federal Fair Work Act, are examined in a recent paper by University of Melbourne academics Professor John Howe and Melissa Kennedy, which also considers some of the constitutional barriers to implementing a state wage theft law. (see Kennedy’s shorter article on the issues here: https://pursuit.unimelb.edu.au/articles/can-victorian-labor-really-make-wage-theft-a-crime?)
- Introducing an industrial manslaughter offence under the Occupational Health and Safety Act: according to the Premier, ‘[e]mployers whose negligence leads to the death of an employee will face up to 20 years in jail under tough new laws to be introduced by a re-elected Andrews Labor Government.’ (see: https://www.premier.vic.gov.au/workplace-manslaughter-laws-to-protect-victorians/)
- Holding a review of the private security industry to crack down on ‘dodgy operators’ (see Workplace Express, 6 November 2018).
- Public sector bargaining: reintroducing a bill to overcome the limitations in content of enterprise agreements for Victorian departments, agencies, etc arising from the 1995 decision in Re AEU (see Workplace Express, 21 November 2018).
It hasn’t been easy to track down specific policy commitments from the Liberal Party on employment issues.
Shadow Minister Robert Clark’s website (http://www.robertclark.com.au/robert/about-robert/) has few recent media releases on industrial relations. Mostly these relate to IR issues in the fire services (see below), or concerns about union behaviour in various industrial disputes over the last few years.
It was noted in Melissa Kennedy’s article (see above) that on 24 July this year, Mr Clark indicated that while the Liberals hadn’t yet decided whether to support imprisonment for deliberate underpayments, he would prefer to see wage theft dealt with by the FWO under federal law.
The Opposition has announced a firm commitment to hold a Royal Commission into Victoria’s fire services. This is a response to the Andrews Government’s handling of employment relations, and particularly the negotiation of new enterprise agreements, for the Country Fire Authority (CFA) and Metropolitan Fire Brigade (MFB). The Liberal policy states that:
A Liberal government will respect and protect the CFA and its volunteers. We’ll end Labor’s attempts to give control over the CFA to the firefighters union. We’ll hold a Royal Commission to get to the bottom of the bullying, intimidation and manipulation that’s entrenched in our fire services. We’ll give CFA volunteers the same rights to cancer compensation as paid firefighters, and we’ll legislate to guarantee the rights of CFA volunteers and strengthen the Volunteer Charter.
The proposed CFA agreement featured heavily in the last federal election campaign in 2016, and led to the Turnbull Government implementing special legislation to shore up the position of volunteer firefighters (Fair Work Amendment (Respect for Emergency Services Volunteers) Act). The proposed MFB agreement has also been controversial and is now before the Fair Work Commission for approval. The federal Government intervened in those proceedings to oppose approval.
The Greens have outlined the following positions on employment and industrial relations (see IR spokesperson Nina Springle’s site here: https://greens.org.au/vic/person/nina-springle/portfolios#ir):
The cost of living in Victoria is on the rise, and at the same time, job insecurity has never been higher. The Greens are committed to transitioning to a greener, jobs-rich economy; supporting workers’ rights in a changing economy; [and] tackling the gender pay gap …
Victorian governments have failed to keep pace with the changing nature of work, from dramatic increases in labour hire, to the rise of the gig economy. The Greens are committed to ensuring that workers rights are protected wherever they work, and that people’s livelihoods are not left at the mercy of markets that too often focus on maximising profits at the expense of workers.
These fairly general statements of principle can be viewed in a broader context: at the federal level, the Greens are currently pushing Labor to commit to a more robust system of industry-based bargaining (rather than limiting access to sectoral bargaining to low-paid workers).
In other words, the Greens are pitching themselves as ‘truer’ to union values than Labor, as they have often done in the past.
(see the Greens’ national Employment and Workplace Relations policy here: https://greens.org.au/policies/employment-and-workplace-relations)
What will happen?
Aside from the policies, one thing is clear: as in 2014, Labor and the union movement are in sync (the UFU aside), with union activists campaigning hard on the ground for the re-election of the Andrews Government. Trades Hall and its supporters get ever-more adventurous with their campaigning, handing out ‘(mis)fortune cookies’ and ‘lucky lobster scratchies’ at train stations around Melbourne in the last few weeks (including some deep in Liberal heartland).
The ABC has looked closely at Labor’s wage theft proposal and the Liberal Party’s position on this issue, here: https://www.abc.net.au/news/2018-11-19/underpaid-workers-call-bosses-to-be-jailed-victoria/10505482
And for more insightful analysis than I’m capable of about what might actually happen on election night, see Tim Colebatch’s article published on Inside Story, here: https://insidestory.org.au/is-victoria-reverting-to-type/