Employers have been advised to prepare for major changes to the Fair Work Act that will affect their ability to engage casual staff and use labour hire companies.
Employers have been advised to prepare for major changes to the Fair Work Act that will affect their ability to engage casual staff and use labour hire companies.
In the latest Legally Speaking webinar with Pragma Lawyers, director Elizabeth McLean said the changes are designed to tackle what the new federal Labor government calls insecure work.
Ms McLean said Labor tabled a bill last November detailing its plans.
The government plans to apply a ‘same job, same pay’ obligation on labour hire businesses.
Businesses using labour hire companies to engage staff need to provide all the information “reasonably required” to ensure compliance with the ‘same job, same pay’ obligations.
“They would need to avoid contracting with a labour hire business unless that business agrees, as part of its terms of engagement, to comply with its obligations,” Ms McLean said.
She said this could be quite onerous.
“For example, it remains to be seen how the obligation can be discharged when the host does not employ anyone to do the same work as the supplied workers,” she said.
Ms McLean said there is also an obligation to provide supplied workers with the same amenities and facilities at the workplace, as well as access to the same training opportunities and rights to consultation and negotiation of terms such as hours and location of work.
A related set of changes concern the use of fixed term contracts.
The Labor government proposes to introduce limits on the number of consecutive fixed term agreements an employer can offer an employee for the same role.
Ms McLean said it is likely the limit will be two years of two consecutive contracts.
After that, the employer will likely be required to offer permanent employment to the employee.
The government has also indicated it will amend the definition of ‘casual employee’ to encompass the overall circumstances of the arrangement, such as duration, ad hoc work and hours or work.
Currently, the focus is on the terms of the initial offer, not what happens in practice over a period of time.
Ms McLean said this will undo the changes arising from the landmark WorkPac v Rossato High Court ruling.
She said employers should consider the merits of making casuals permanent if their arrangements appear to be regular, systematic and ongoing.
“If the employee does not want to be permanent, the employer should keep a record of this and consider provisioning for potential entitlements claims from long term casuals,” she said.
To see the full Legally Speaking webinar, in which Pragma’s Aaron McDonald covers the expanded scope of unfair contract terms, among other topics, go to pragma.law/media
