Bosses fear a new law preventing managers from contacting workers too much after hours will open the door to vexatious claims as the government vows to wind back the threat of criminal offences for employers who breach Fair Work orders.
The second stage of Labor’s Closing Loopholes bill passed parliament on Thursday afternoon – but not before the government tried to introduce an 11th-hour amendment preventing criminal sanctions for rogue employers, in a motion denied by the Coalition.
Workplace Relations Minister Tony Burke accused the opposition of trying to expose employers to criminal penalties by denying the late amendment, but opposition industrial relations spokeswoman Michaelia Cash said it was the government “which enshrined in the Fair Work Act the possible criminal penalty” in the first place. The Coalition voted against the right to disconnect and the entire bill.
Opposition industrial relations spokeswoman Michaelia Cash and Workplace Relations Minister Tony Burke.Credit: Alex Ellinghausen
“The Albanese government’s rushed and chaotic approach to this bill was on full display today. They were so desperate to get this through today they voted for bad legislation,” she said.
Under the new law, if the employer persists contacting the worker, the employee can apply for a “stop” order from the Fair Work Commission which, if breached, can lead to a criminal sanction and $18,000 fines for individuals.
However, Burke said the penalties would not be applied because the legislation didn’t come into effect for six months and Labor would now seek to legislate against the criminal sanctions.
“It is difficult to imagine a situation where criminal penalties would ever be appropriate,” Burke said. “Despite the opposition’s idiotic and irresponsible behaviour – we will legislate to fix this.”
While Australian Council of Trade Unions secretary Sally McManus celebrated the new right to disconnect as fair and essential to maintaining a balance between life and work, employer groups said they were concerned about vexatious claims going to the Fair Work Commission, despite legislative safeguards.
Australian Industry Group head chief executive Innes Willox said bosses were looking at “massive complexity and uncertainty about how workplaces operate”.
“There is now the real likelihood of conflict where previously there were agreed flexibilities and trade-offs … disputes over trying to keep a workplace moving are now more likely,” he said.
Council of Small Business Organisations Australia head Luke Achterstraat said there was anxiety in the sector about the subjectivity of the rule and how it would be applied.
Herbert Smith Freehills senior partner Anthony Wood said the new laws were overly prescriptive regarding an issue that hadn’t presented itself as a major problem in employment scenarios.
“The jury’s out on the impact … the creation of new prescriptive rights is always going to be contentious but I genuinely think, in the same way the anti-bullying laws created a framework for parties to modify their behaviours, I think this is a smaller scale example of that,” he said.
It’s thought firms will need to train their staff about the new laws.
Australian HR Institute’s head Sarah McCann-Bartlett said the group’s 2023 quarterly report surveyed employers on the right to disconnect and 41 per cent of organisations already had a right to disconnect policy in place, but a quarter of those excluded managers from the right.
“As with any new workplace law, employers will need to educate employees and managers on the new obligation and how it will work in practice in their organisation,” she said.
Speaking out against the legislation in parliament, Tasmanian senator Jacqui Lambie said the new law would mean her own staff could take her to the Fair Work Commission if she contacted them after hours. “I reckon they could do me over, to be honest with you,” she said.
Labor minister Murray Watt responded in the Senate debate that ministerial staffers were financially compensated for the hours they worked, and the commission would take into account several factors to determine the reasonableness of the contact.
Burke told parliamentary question time on Thursday the broader industrial package would also create minimum standards for workers in the gig economy and truck drivers. It also includes greater protections for casual workers and gives them easier pathways to convert to permanent work.
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2024-02-08 08:21:11Z
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