The Federal Government has been actively negotiating changes to Industrial Relations Laws in the Fair Work Act 2009 with cross bench members of the Senate in order to secure their proposed legislation.
The 2024 changes to Industrial Relations Laws are extensive, and whilst will have minimal impact on the baking industry as a whole, there is more than likely to be peripheral impacts over time. The key Industrial Relations Laws changes which have been negotiated will apply from 1 July 2024 and are as follows:
Sham Contracting Provisions (for ABN Contractors)
The new sections of the Act are going to reverse the High Court decision from 2022 which upended years of jurisprudence on what defined a genuine versus sham contract. This means that we are going back to the old days of being very careful of engaging “Contractors” instead of employees. The test will revert to a “multi factor” test in determining the nature of the contractual arrangements between a business and a person performing work for that business.
There are significant fines for employers who misclassify an employee as a “contractor” and therefore this will need to be reviewed carefully where ABN contractors are in place. The multi-factor test is very complicated and we implore members to seek advice before engaging an ABN contractor for any work whatsoever.
Casual Employment
The legislation will provide that a person is not a casual (regardless of what their employment contract says) if they are engaged on a regular and systematic basis and have a “firm advance commitment to continuing and indefinite work”. Where such an employee works regular shifts, they could be forced to become part-time or full time, depending upon the hours they have been working. Where your employing casual juniors, and there are changes every week in their hours, there is nothing to be feared by these changes. However, if you are operating a wholesale manufacturing facility and rely on regular casuals, this could be something which needs attention within the next six months.
Gig Economy
The new legislation introduces the power for the Fair Work Commission to set terms and conditions for Gig Economy workers (Uber Eats etc). This will not have a direct impact on baking businesses, but you may well notice increased fees if you partner with Uber or DoorDash in the future.
Intractable Bargaining
The Greens have pushed through an amendment to the current Intractable Bargaining provisions which prevents the Fair Work Commission (FWC) from making any decision that leaves an employee worse off in relation to an existing provision in a current Agreement. This means that where an employer has agreed to increase entitlements in one area in return for a trade-off in another area, the FWC must not recognise the trade-off. What’s more, the improved conditions offered during negotiations cannot be reduced.
We fail to see how this will work in reality because the end result will be the refusal to agree to any increases during negotiations in case it goes to the Commission and the employer is stuck with the increases with no way to fund them.
The number of changes to the Fair Work Act 2009 in the last 12 months has been truly staggering and we understand if your heads are swimming at the thought of more. Please remember that the NBIA IR Hotline is there to assist NBIA members with queries on about changes to Industrial Relations Laws and how they may impact on your baking business.