IR measures to help the parties win an election

Wednesday 29 June, 2016 | By: James Flaherty | Tags: IR legislation, underpaying foreign workers, Fair Work Commission

With the Federal Election just around the corner, the major parties have proposed variations in the way they will implement IR changes.

With the recent spotlight on companies underpaying wages to foreign workers both parties are looking to increase penalties for those employers deliberately exploiting workers.

Check out below how they might apply to your business: 

 COALITION

 

CURRENT SITUATION

COALITION'S PROPOSAL

Fair Work Ombudsman enforcement powers

The Fair Work Ombudsman can require employers to produce records or documents.

Give compulsory evidence gathering powers to the Fair Work Ombudsman.

New penalty provisions relating to the obstruction of Fair Work Inspectors and the provision of false or misleading information to Fair Work Inspectors.

Increase penalties for underpayment

If you underpay an employee you are liable for a civil penalty of up to:

- $10,800 per breach (60 penalty units) if a natural person; or

- $54,000 per breach (300 penalty units) if a corporation.

Increase maximum penalties tenfold for employers who deliberately and systematically underpay workers and fail to keep proper records.

New offence where an employer pays the correct wages to employees, but then forces them to repay a proportion of their wages in cash.

New offence where franchisors and parent companies fail to deal with FW Act breaches exploitation by franchisees or subsidiaries to make franchisors and parent companies liable in situations where they should reasonably have been aware of the breaches and could reasonably have taken action to prevent them from occurring.

Franchisors who have taken reasonable steps to educate their franchisees about their workplace obligations and have assurance processes in place will have a defence

Regulation of trade unions and officials

The Fair Work Commission and Courts can suspend or disqualify union officials from holding an entry permit. There are no existing powers regarding persons whom hold office within industrial organisations.

Give courts powers to disqualify union officials from continuing to hold office where they have been repeatedly found to have breached workplace laws.

Require greater disclosure of union financial dealings, including whether a union or union officials would receive any benefit as a "direct or indirect consequence" of a proposed enterprise agreement.

Require greater disclosure of loans, grants and donations by unions.

 

 

 

 

 ALP

 

CURRENT SITUATION

ALP'S PROPOSAL

Definition of “casual” and “independent contractor” in Fair Work Act (FW Act)

Undefined.

After industry consultation:

(a) insert a definition in the FW Act that would deem a contractor to be an employee if a reasonable person would consider the person to be an employee;

(b) insert a definition of casual.

Increase penalties for underpayment

If you underpay an employee you are liable for a civil penalty of up to:

- $10,800 per breach (60 penalty units) if a natural person; or

- $54,000 per breach (300 penalty units) if a corporation.

Disqualify directors of body corporates breaching FW Act and where they intentionally transfer assets from an indebted company to a new company to avoid paying employee entitlements, make them personally liable for debts in relation to outstanding compensation owing to workers or civil penalties owing in respect of breaches of the FW Act.

Increase penalty for underpaying employees to higher of:

  1. three times the amount of the underpayment; or
  2. $216,000 (1,200 penalty units) for an individual and $1,080,000 (6,000 penalty units) for a body corporate.

Possible new criminal offences where employer intentionally or recklessly seriously underpays an employee or engages in sham contracting.
Penalty for such an offence would be:

- $43,200 (240 penalty units) or 2 years’ imprisonment for an individual; or

- $216,000 (1,200 penalty units) for a body corporate.

Higher penalties for exploitation of temporary overseas workers

Criminal offence to employ someone, or to refer someone to work, if they are not legally entitled to work.

This offence is punishable by 2 years’ imprisonment. It is also an aggravated offence, punishable by 5 years’ imprisonment if that worker is also exploited.

New criminal offence for those who deliberately exploit temporary overseas workers, and fail to meet their obligations to the worker under the FW Act, even if they are employing the worker in accordance with the terms of their visa.
This offence will be punishable by:

- up to 2 years’ imprisonment or a fine of up to $43,200 (240 penalty units) for a natural person; or

- a fine of up to $216,000 (1,200 penalty units) for a corporation.

Give “illegal” foreign workers employed in Australia without a visa the right to take action under the FW Act to recover entitlements.

Domestic and family violence leave

No entitlement in FW Act, although increasingly being provided in enterprise agreements.

Provide for 5 days’ paid domestic and family violence leave per annum in the National Employment Standards (NES).

 

 

 

 

 

 

 

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