ALP: What employment law changes will come into effect in 2022?

With a new Commonwealth Government in place, invariably legislative changes across an array of areas will be proposed and attempted to be pushed through the Senate, where the Australian Labor Party (ALP) is a minority. While the ALP has the slimmest majority in the House of Representatives, 76 seats confirmed out of a total 151 (with one ALP member taking the seat of the Speaker), they only have 26 seats in the Senate out of 76, meaning they will be relying on the Greens and at least one Independent to pass any legislation.

Still, being a union party, the ALP will undoubtedly start to look at various aspects of employment law to see what areas will give workers more favourable conditions. One area of law that will be closely examined is the legislative definition of contractors.

“Following the recent Hight Court case of ZG Operations v Jamsek, there is an opportunity for the Government to legislate with more precision the definition of ‘contractors’,” Anthony Maher, director of BlueRock Law’s commercial team, who has significant experience in employment and commercial matters, told HRD. “Many employers deal with the uncertainty that the lack of statutory definition creates for employers, and in turn regarding entitlements, superannuation, and civil remedies.”

Case analysis

The decision in ZG Operations & Anor v Jamsek & Ors [2022] HCA 2 found that Mr Jamsek and Mr Whitby (the respondents) were not employee of ZG Operations Australia Pty andZG Lighting Pty Ltd, who were collectively both known as ZG.

For in excess of 30 years the respondents had entered into independent contractor arrangements with ZG where they had purchased their own trucks and provided services. The respondents invoiced ZG for the services provided while paying their own operational costs and other expenses associated with operating the partnership. In 2017 ZG ended the contract and the respondents filed proceedings seeking payment of their entitlements (superannuation and long service leave) as employees of ZG. The High Court ruled that the respondents were not employed by ZG but were independent contractors.

Moving forward

“The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 was recently passed to include a new statutory definition of ‘casual employment’,” Maher added. “A similar bill for contractors would be welcomed, to ensure business owners can mitigate the risk of incorrectly characterising their staff. “

Rolling fixed-term contracts

Another key issue for the new Commonwealth Government to review is the clarity of ongoing fixed-term contracts. At the moment there is some confusion as to whether they should be continually rolled on or whether a person should be offered a full-time position and/or fixed-term contract.

“Further legislation to clarify the use of consecutive fixed-term contracts which an employer can offer for the same role would also be welcomed,” Maher said. “This will ensure employees are offered permanent positions where it is no longer appropriate to engage under a fixed-term contract. There are decisions from the Fair Work Commission which provide some guidance in the area of rolling contracts, but much inconsistency and confusion abounds. There are also industries and specific areas where rolling fixed-term contracts - due to funding, or project work - are considered lawful but other areas where it is not.”

Currently, an employee who has worked for the same employer for 20 years under multiple fixed-term contracts may not be considered a permanent employee due to this area of uncertainty within the law.

“This becomes problematic when the relationship does not reflect the terms of the contract, giving rise to expectations of continuous employment and, in some cases, an inability to claim unfair dismissal,” Maher added.

This will undoubtedly be raised through the Fair Work Commission and most probably the court system in the near future but is an area that the Commonwealth Government need to address in order to attain consistency throughout the country.