The Morrison Government is set to unveil its Industrial Relations Omnibus Bill this week, proposing a suite of changes aimed at boosting employment following the COVID-19 pandemic.
It is expected the bill will contain five separate industrial relations reforms, aligning to the Australian Government’s five industrial relations working groups to reach solutions on the nation’s key industrial relations issues.
It is likely the definition of a casual employee will be enshrined in the Fair Work Act to try to ensure people are being employed legitimately as casuals, and employers will have to offer casuals with regular work patterns full or permanent part-time jobs after 12 months, under new measures the government says will crack down on insecure work.
Among other expected changes, an employer will have to offer full or permanent part-time work after a year if the employee has been working a regular pattern of hours for the past six months. The employee can decline the offer but request a change each six months afterwards, so long as they remain eligible.
Industrial Relations Minister Christian Porter said the change made sense because ‘‘everyone knows that paying twice for the same benefits does not pass the fairness test and would cripple many businesses’’.
It follows resources and energy employers last week welcoming the High Court of Australia granting special leave for Workpac to appeal the Rossato decision, a landmark test case on whether casual employees can ‘double dip’ on employment entitlements.
Other proposed changes in the bill will be reversing the decline in enterprise bargaining via a more flexible interpretation of the rigid Better Off Overall Test safety net by the Fair Work Commission, and introducing a 21-day limit to conclude agreements.
It will establish greenfields agreements for major construction projects with ‘‘life-of-project’’ workplace agreements that can run for a maximum eight years on projects valued at more than $500 million.
The reform package will overhaul five main areas of industrial relations legislation, after Minister for Industrial Relations Christian Porter led several working groups this year.
The government will table the industrial relations bill in Parliament this week, have it examined by a parliamentary committee over the summer and seek to pass it through both houses early next year.
AMMA’s involvement in the Australian Government’s industrial relations working groups began in late June, representing the interests of the nation’s mining, energy, and service and supply sector employers in further discussions in coming weeks.
With a direct representative role on two working groups in crucial areas for the sector, AMMA will focus on reforming ‘greenfields agreements’ for new major projects and the Fair Work Act’s broader agreement making framework.
In addition, AMMA will have significant input into the other three working groups (Casuals, Award Simplification, Compliance and Enforcement) through its membership of the nation’s largest and most representative business network, the Australian Chamber of Commerce and Industry, of which AMMA’s CEO Steve Knott AM is also a Board Director.
Each of the five working groups have met for the first round of discussions concluding last week. The second round of meetings is scheduled to commence next week with final discussions expected in September.
It is expected the Industrial Relations Omnibus Bill will address:
- Minor technical issues with agreement making
- Longer agreement duration for major projects
- Casual definition for the Fair Work Act
- Some simplification of small business awards
- New penalties regime for serious underpayment
AMMA understands the government is seeking to legislate its IR changes early next year to take effect in late March / early April.
Members are encouraged to get involved with AMMA’s comprehensive advocacy strategy over coming months to assist with the Bill’s successful passage.
For more information on the government’s Industrial Relations Omnibus Bill, greenfield agreements (see below), any other matters relevant to pending industrial relations changes, or AMMA’s advocacy campaign, contact our policy team at [email protected]
‘Project Life’ Agreements set to unlock jobs and investment
One of the key reforms included in the government’s omnibus industrial relations bill will be legislating for Project Life Greenfields Agreements.
It follows the welcome move by the Australian Government last week confirming it would pursuing this a crucial industrial relations reform that will create jobs and economic growth by stimulating investment in the resources, energy and infrastructure sectors.
In Parliamentary Question Time, Attorney-General and Minister for Industrial Relations Christian Porter was asked how the government’s forthcoming IR reforms will assist the mining and resources sector in driving the COVID-19 recovery.
The Attorney responded by highlighting the need to create an “optimal regulatory setting to support the next wave of major resource and project investment”.
“… Complicated investment decisions are very important, and they produce that countercyclical growth we have seen in the mining industry,” Minister Porter said.
“In a 2019 survey of infrastructure market participants, there was pretty serious concern indicated about the level of regulatory burden and how that impacts on investments.
“That is why we want to see life-of-project greenfield investments—to bring on more investment decisions, more investment and more employment in mining.
In reference to the resources sector, Minister Porter said “economically there are few sectors that have played a greater role in preserving jobs during the crisis that we have been through, and there’ll be few sectors that’ll play a more important role as we come out and come back from the crisis”.
“When we look at the mining and resources sector, it has remained remarkably strong during 2019-20 and during the COVID crisis,” Minister Porter said.
It accounts for nine per cent of Australia’s GDP and for half of the Australian export earnings totalling $290 billion. But in the June 2020 quarter the national accounts showed that the mining sector still actually managed to grow by 0.2 per cent.
“So, in the height of the COVID pandemic, against the trends, compared to an economy-wide fall in growth of seven per cent, the mining sector still managed to grow by 0.2 per cent.”
The positive development on project life greenfields agreements is most welcome for members and follows AMMA’s heavy involvement in the Australian Government’s industrial relations working groups which began in June.
Reforming greenfields agreements was the focus of one of the working groups, of which AMMA held a direct representative role and provided compelling evidence.
For more than a decade, AMMA has advocated for Project Life Greenfields Agreements and the benefits to influencing final investment decisions to secure major project capital.
“AMMA has advocated the case for Project Life Greenfields Agreements for at least a decade,” AMMA Chief Executive Steve Knott said.
“The inability to secure industrial relations certainty for the full length of a major project construction phase has been a massive disincentive to investment in the past.
“Investors would often scratch their heads as to why greenfields agreements had a maximum duration of four years when applied to projects that take an average of six years to build. It makes no sense and is a very real barrier to securing final investment decision.
“This simple but important change will significantly boost Australia’s ability to secure new major project investment in the ultra-competitive post-COVID global marketplace.
“The resources and energy sector has displayed remarkable resilience in the face of pandemic-related challenges. The Government is right to do all it can to present an attractive investment platform and stimulate growth in the industry keeping our national economy afloat.”
AMMA notes the Federal Department of Industry’s Office of the Chief Economist last week released its Resources and Energy Major Projects Report, strongly indicating that investment in Australia’s resources projects has entered a new growth cycle.
The Chief Economist reported the number of resources and energy major development projects increased by 19 per cent to 335 projects, and the value of projects in the investment pipeline increased by 4 per cent to $334 billion.
“Once investment is secured and construction is completed, major resources projects deliver revenues of many billions of dollars to state and national accounts, funding public infrastructure and services, and supporting regional areas and businesses of all shapes and sizes,” Mr Knott said.
“Project Life Greenfields Agreements is a no-brainer for helping convert this potential into realised investment, short and long-term jobs and economic benefits for the Australian people.
“This reform should be non-controversial given employer and union parties still need to negotiate on the terms and conditions of those arrangements, and the agreed timeframe for which they will run.
“This change simply offers the important ability to cover the full cycle of the life of a major new project construction, whether that is four, five or eight years.
“With the Federal Opposition indicating prior to the election it would support such a policy, we expect this job-creating reform to receive bipartisan support.”
Read the business case for “Project Life Greenfields Agreements” in AMMA’s campaign booklet.
Registered Organisations to be given flexibility to de-merge
In separate legislation, the Morrison Government will introduce legislation to give parts of registered organisations, which includes unions, greater ability to de-merge from their amalgamated organisation.
Attorney-General and Minister for Industrial Relations, Christian Porter, said the Fair Work (Registered Organisations) Act currently prevents parts of a registered organisation from de-merging five years after amalgamation.
“Freedom of association is a fundamental principle of Australia’s industrial laws and this means that employees should have the right to associate in organisations according to their wishes,” the Attorney-General said.
“A clear short-coming of the current law means that even if the performance or actions of one part of an amalgamated organisation fall beneath proper, lawful standards, and even if other members of the organisation who do the right thing do not believe it is in their best interests to stay attached, can’t leave, even if the majority of members wish to.
“Within the union movement there are clear examples where the very poor conduct of one part of a union is impeding the ability of other divisions of the union to work effectively in the interests of their members.
“The Government’s Bill, to be introduced next week, will fix this problem and put the destiny of those members of parts of registered organisations who are dissatisfied, back in their own hands.”
The Fair Work (Registered Organisations) Amendment (Withdrawal from Amalgamations) Bill 2020 will be introduced next week, at the same time as the Government introduces its industrial relations omnibus reform bill.
The Bill will give the Fair Work Commission (FWC) the ability to approve an application for a ballot on the question of withdrawal from amalgamation afterthe usual five year period has elapsed, if it decides it is appropriate based on specified considerations.
“Let me very clear what this is about,” the Attorney-General said.
“It means that decent, hard-working parts of an amalgamated union that are dissatisfied with the state of their union will have an opportunity to leave, if that is their wish and this Bill is passed by Parliament.
“Whilst registered organisations cover both employer and employee organisations, the appalling behaviour of the CFMMEU has driven some divisions within that organisation to consider their options.
“But de-merger is not an option available to them at the moment due to limitations legislated by the Fair Work (Registered Organisations) Act by Labor when it was in government.
“For example, divisions of the CFMMEU would, under these proposals, be able to apply to the FWC for a ballot of their members to decide whether to break away.
“If the FWC approves the ballot going ahead and it is successful, divisions of the CFMMEU could then formally withdraw from the CFMMEU and form their own, standalone union, taking their members and assets with them.
“The FWC would be required to consider a range of factors before approving an application. These include:
- whether the amalgamated organisation has a record of not meeting the standards for registered organisations as set out in the Fair Work (Registered Organisations) Act 2009, and any contribution of the constituent part seeking to withdraw, to that record;
- whether the amalgamated organisation has a record of not complying with workplace or safety laws and any contribution of the constituent part to that record; and
- the likely capacity of the constituent part that forms a new organisation to promote and protect the economic and social interests of its members.
Where the FWC determines that organisation has a record of not complying with workplace and safety laws and that the record is not attributed to the division of the amalgamated organisation seeking to withdraw from the amalgamated organisation, the FWC must accept the application of the constituent part to hold a ballot to withdraw.
A review within two years of the Bill’s commencement will consider whether the amendments are operating effectively.
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