Ai Group commented this week on the Opal Australian Paper win in the Fair Work Commission which highlighted the legal nightmare risks associated with the Government’s 'Same Job Same Pay' proposals.
"The case provides a stark demonstration of why the Government’s implementation of its 'Same Job Same Pay' could become a legal nightmare for employers. The policy proposal is unfair and unnecessary and it would create a disincentive to employment.
"While it is yet to be seen whether the Government's proposal will operate precisely in the same way as the provisions considered in the case, the matter provides a vivid illustration of the kind of unreasonable complexity and costly litigation that the policy will likely impose on employers.
"In this particular matter, the union had wrongly asserted that the relevant employee of a contractor engaged by the employer was provided with less favourable terms and conditions than the business’s direct employees. While the Commission ultimately rejected the union claim, this only occurred after the employer was forced to waste time and resources dealing with complex Fair Work Commission proceedings.
"Industry is justifiably concerned about the prospect of the Government’s policy potentially replicating this kind of problem across the economy.
"There are still fundamental questions about how the Government’s proposed legislation will operate and understandable doubt about whether the obligations that it would impose on industry would be workable. There is nonetheless a major risk in that the Government's changes will result in widespread confusion and disputation similar to that demonstrated in this case.
"Crucially, the case shows that employers and their employees can already include terms in enterprise agreements regulating the engagement of labour hire providers or contractors to prevent the undercutting of terms and conditions set by an enterprise agreement.
"These kinds of clauses are very commonly pursued by unions and are routinely the subject of negotiation at the workplace level, especially where there is any genuine concern about an employer's use of labour hire or contracting arrangements. So, the real question is why does the Government even need to regulate in this space?
"The truth is that the Government is not closing any labour hire 'loophole'. Parties already can, and do, bargain over an employer's use of labour hire or contractors. Instead, the Government is unfairly moving the goal posts on employers by simply delivering the unions an outcome that they could otherwise seek through bargaining," Innes Willox, Chief Executive of the national employer association Ai Group said.
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