Tue May 24

the big question is how Labor keeps its promises

Written by: Andrew Stewart, John Bray Professor of Law, University of Adelaide

Industrial relations issues were front and centre when federal Labor last won office from opposition in 2007. The backlash against John Howard’s “Work Choices” reforms cost both his government and his own seat. Kevin Rudd and Julia Gillard’s detailed “Forward with Fairness” policy provided a blueprint for the Fair Work Act that is still in force today.

Workplace issues were nothing like as prominent in the 2022 election. Still, Labor campaigned on the need to address three key issues: wage stagnation, insecure jobs, and gender inequality.

Lifting wages will be a priority for the Albanese government, to help ease the cost of living. But it may also be pressured by both unions and the Greens to go further in addressing problems with the “Fair Work” system.

Tackling the wages crisis

There are many reasons for Australia’s low wage growth over the past decade, not least a loss of bargaining power for workers ^[1]. Clearly though the problem is not going to fix itself. Policy action is needed ^[2]. The question is whether Albanese and his colleagues have the answers.

In the first instance, they will look for help from the Fair Work Commission in its upcoming annual wage review. Albanese has expressed support ^[3] for a minimum wage increase that at least keeps pace with inflation. That could potentially benefit everyone in the workforce whose pay is set by, or linked to, an award.

Beyond that, there are plans to improve pay equity for women ^[4]. Proposed reforms include requiring large employers to report their gender pay gap publicly, prohibiting pay secrecy clauses, and broadening the Fair Work Commission’s power to redress the undervaluation of work in female-dominated industries.

Anthony Albanese takes a selfie with members of the Australian Nursing and Midwifery Federation in November 2019.

Anthony Albanese with members of the Australian Nursing and Midwifery Federation in November 2019. Erik Anderson/AAP

Labor has also undertaken to improve the enforcement of minimum wage laws. It has committed to introducing criminal penalties for “wage theft” – something the Morrison government promised but failed to do ^[5] – and ensure workers have a “quick and easy way ^[6]” to recover underpayments.

What is less clear is whether the Albanese government can bring itself to set a lead for the private sector, both by paying public servants more and by supporting decent wage growth in the many sectors affected by public funding and procurement.

Doing so could have a rich economic and social dividend. But the cost will be a challenge, especially with Labor already committed ^[7] to supporting and funding significant pay increases for aged-care workers.

Enterprise bargaining

Then there is the decline of enterprise bargaining ^[9], the process supposed to be the main way of gaining wage rises under the Fair Work system. Just 11% of private-sector employees are now covered by a current (non-expired) enterprise agreement.

Albanese has spoken of a business-union summit ^[10] – echoing the “consensus” approach taken by the Hawke Labor government in the 1980s – to discuss how to revitalise the bargaining system.

Anthony Albanese, centre, attends the Labour Day march in Brisbane on May 2 2022. /Lukas Coch/AAP

It could certainly be simplified, and much could be gained from a new emphasis on co-operation ^[11]. Yet much as the new prime minister would like to channel Bob Hawke and rediscover the virtues of tripartism ^[12] – with employer organisations, trade unions and governments working together – it will take a herculean effort to find consensus.

Many in the labour movement would like to see a reversion to industry-level bargaining, at least in sectors where enterprise negotiations are impractical, as well as a greater role for the tribunal in breaking deadlocks. It will be fascinating to see if those ideas ^[13] gain any traction over the next three years.

Making work less precarious

In contrast to its silence on bargaining and the role of trade unions, Labor has clear plans ^[14] to address insecure forms of work. Among other things, it has promised to:

limit casual and fixed-term employment to jobs that are genuinely temporary or irregular
ensure labour-hire workers are paid the same as those directly employed by the business to which they are assigned, and
empower the Fair Work Commission to set minimum wages and conditions for “employee-like” workers, including those finding work through digital labour platforms such as Uber or Deliveroo.

Anthony Albanese with members of the Transport Workers Union outside Parliament House in June 2020. The unionists were protesting against JobSeeker payments not being available to aircraft cleaners, caterers, security guards, baggage handlers and ramp workers. Mick Tsikas/AAP

The complexity of many of these issues should not be underestimated. There are many long-term casuals, for example, who prefer to take a pay loading in lieu of leave entitlements they may never use.

Allowing the Fair Work Commission to make an award for certain types of gig worker will not fully address the potential for “sham contracting” arrangements opened up by recent High Court decisions ^[15].

It will be interesting to see if the new government moves on these reforms immediately, or perhaps looks for some of them to be explored in greater depth by its promised white paper ^[17] on the labour market.

A focus on women at work

Post-election analysis has rightly focused on the crucial role played by female voters and candidates ^[18]. The new government will be doubly keen to implement the parts of its platform that address issues of particular significance to women.

Besides the policies already mentioned on pay equity and insecure work, there is a pledge of cheaper childcare ^[19], plus a new right to paid family and domestic violence leave.

Labor will also fully implement recommendations from the Australian Human Rights Commission’s Respect@Work report ^[20] on sexual harassment. That includes amending the Sex Discrimination Act to create a positive duty on employers ^[21] to take reasonable measures to eliminate sexual harassment.

Possibly the greatest challenge, however, will be to make a difference in the workplace over which the government has most control – parliament house. Staffers and MPs are entitled to expect not just protection from violence and harassment but greater respect and accommodation ^[23].

It will be a very public forum in which to judge the new government’s commitment to fair pay and conditions for working women.