Employer and employer association matters in 2021

Abstract

For employers and their associations, 2021 began with the prospect of significant industrial relation change and a return to business as usual. However, the enduring implications of the pandemic, and defeat of many employer-supported aspects of the Coalition Government's legislative changes in the Senate, quickly dashed these dreams. Through a review of public submissions, media reports and interviews, this article explores the key activities and interests of employers and their associations throughout 2021. This year saw welcomed clarity regarding casual employment, renewed government interest in (if not support for) skilled migration, and through the enhanced use of online communication platforms, the opportunity for better member–association relationships. As the year progressed, employer attention shifted back to the pandemic, and more specifically, the challenge of managing vaccine mandates. For employers and their associations, 2021 was then a year of mixed results and enduring uncertainty.

Keywords

Employer employer association minimum wage pandemic vaccinations

Introduction

In last year's annual review, Thornthwaite and Sheldon (2021) categorised employer association (EA) actions as either proactive or defensive in relation to defined sets of issues. One set of issues revolves around what they refer to as an apparently ‘insatiable desire’ to reform the industrial relations (IR) system in ways that afford employers ever-increasing amounts of flexibility. Here, employer coordination takes the form of proactive lobbying and relentless public campaigning for specific measures to change the award and enterprise agreement frameworks, for amendments to relevant state and federal employment laws, and also to the operation of the tribunal system itself. In this space, employer representatives engage in ideological pronouncements about the current inefficiencies and costs of the ‘IR system’, as well as specific proposals for further reforms, notwithstanding the litany of prior employer-inspired changes that have progressively chipped away at traditional employee entitlements and employee collective power over recent decades. EA support for the Commonwealth Government's proposals for IR change (popularly known as the IR Omnibus Bill), and their subsequent posturing for more reform in the wake of the outcome of this process, is the leading item in this year's review, and is further evidence of this type of the EA behaviour. Thornthwaite and Sheldon (2021) also identified the second set of actions are aimed at defending, or at least not calling out, the business community in response to various actions that have undermined what these authors refer to as the employers’ social licence. Many of these actions fall under the broader label of corporate social responsibility, but there are also specific IR matters such as the use of sham contracts, exploitation of vulnerable workers and systematic wage underpayments across many industries. We also find evidence of a continuation of these practices in 2021.

The other matter that dominates this year's review involves how employers and EAs have responded to, and managed, the pandemic. Here EAs have been far more pragmatic, responding to the pandemic as it has evolved throughout the year, including, at times, working closely with organised labour. In response to the pandemic, EAs have also reviewed their own business practices, including instituting new and enhanced methods of communicating with their members, and putting in place some new services. These changes are likely to be enduring features of EAs.

Methods

We created three core sets of data for this review: formal submissions and press releases, interviews and media contributions. We accessed publicly available pages on association websites to identify submissions and media releases. University subscriptions to Workplace Express and Factiva databases facilitated the media review. We approached 20 associations for an interview. Potential participants were selected on the basis of broad industry representation and a desire to use these interviews to highlight different types of associations, and models of representation. Six organisations agreed to participate in an interview: Australian Industry Group (AiGroup); Australian Higher Education Industrial Association (AHEIA); Australian Public Transport Industrial Association (APTIA); Consult Australia (CA); the National Retail Association (NRA) and the Queensland Hotels Association (QHA). With interviews conducted in October and November, we were able to interrogate most of developments across the year in the review with our interviewees.

Omnibus Bill

As noted in last year's review, the Government had taken advantage of the atmosphere of crises arising from the pandemic to announce its intention of bringing forward a package of legislative amendments to the Fair Work Act (FWA). The Government established five working groups, comprised of various employee and employer representatives, to propose changes in the domains of Casuals and fixed-term employees; Award simplification (covering awards in industry sectors heavily impacted by COVID-19); Enterprise agreement making; Compliance and enforcement; and Greenfields agreements for new enterprises. The most prominent employer groups were also the most heavily represented, with the Australian Chamber of Commerce and Industry (ACCI) appearing on all five working groups, and AiGroup sitting on four. The working groups (or ‘roundtables’) set about their work in the discussion that commenced in mid-2020 (as reviewed by Thornthwaite & Sheldon 2021, pp. 360–365). In their review, Thornthwaite and Sheldon (2021) also noted an emerging rift among EAs. During 2021, these rifts became more evident. For example, during the roundtables, the Council of Small Business of Australia (COSBOA) had reached a compromise agreement with the Australian Council of Trade Unions (ACTU) regarding a definition of casual employment, and a proposed measure relating to what is for employers the highly controversial issue of ‘wage theft’.

The COSBOA-ACTU definition of casual employment included that consideration be given to whether a regular pattern of work was being proposed by the employer at the time of offer of work. The proposal also included an arbitration provision in instances of disputes regarding casual conversion. COSBOA's position on casual employment divided employer groups and led to public accusations. COSBOA defended itself and accused the AiGroup of misrepresenting its position in AiGroup's own statements, and when media reporting (see Maskiell 2021) indicated that the COSBOA-ACTU deal would allow employees to ‘double-dip’ upon conversion (see below), a specific measure COSBOA claimed it did not support (COSBOA, 2021b). COSBOA also reacted to what it referred to as reported criticisms by AiGroup and ACCI of its position on supporting penalties for wage theft. COSBOA accused these bodies of misrepresenting its position, which it claimed was to support penalties against serious employer breaches, and not for matters such as ‘payroll mistakes’. (COSBOA 2021a).

In a highly provocative move, COSBOA made public claims that the behaviour of AIGroup and ACCI on the roundtables showed these bodies did not represent the interests of the small business community. On the matter of the definition of a casual: ‘Their actions were about protecting some of their members, the big labour-hire firms, who are now free to continue the very employment practices that got us all into this mess in the first place.’ (McKenzie 2021). Predictably ACCI and AiGroup hit back at this accusation (Maskiell 2021). COSBOA even invoked the old terminology of the ‘IR Club’ to characterise what it saw as a flawed process in which the dominant parties assumed traditional adversarial positions that ensured little chance of any constructive IR reform. Thus, while in its own view, COSBOA had participated in the roundtable process in a genuine effort to reach compromise positions, including with unions, ‘AIG and the other big employment groups, on the other hand, sat on their hands and chose to throw stones at anyone who disagreed with any aspect of their position.’ (COSBOA 2021b).

After 9 months of roundtable discussion and consultation, the Government passed its proposed amendments in the Lower House, and in Senate Committee. However, by March, the Bill remained unpassed in the Upper House and this led 10 EAs to express their frustration and call for all Senators to pass the amendments in full, which they claimed contained no more than ‘modest’ and ‘practical’ changes (ACCI, 2021a). Despite such lobbying, the Government narrowly failed to garner sufficient crossbench support to have the Bill passed in the Senate. Support was found in Pauline Hanson's One Nation Party, but the Centre Alliance, Jacqui Lambie Network and Rex Patrick Team did not. Resigned to not being able secure the necessary numbers in the Senate, and with time running out on the current parliamentary sitting, the Government quickly jettisoned most of the Bill and secured passage of only provisions in Schedule 1, relating to casual employment. For EAs, the outcome of the Omnibus Bill was clearly disappointing as the Government's proposed amendments had originally reflected many of their requirements for IR ‘reform’. Proposed amendments to the Act included an allowance for employers to make enterprise agreements that did not pass the Better off Overall Test (BOOT) in particular circumstances, subject to employees’ agreement; a change originally proposed to assist COVID-19-affected business. Other proposals jettisoned included those that empowered employers to offer additional work to part time employees at normal rates of pay without changing their regular pattern of work; and an allowance for employers operating ‘greenfield’ sites to lock employees into agreements for up to 8 years (Lowrey, Baker & Dalzell, 2021). In a joint media release, the Chief Executives of ACCI, Business Council of Australia (BCA), Australian Mines and Metals Association (AMMA), Master Builders Australia (MBA) and AiGroup applauded the changes to Schedule 1 that did go forward but urged the Government not to give up on passing a broader package of measures (ACCI, 2021b). Despite this, the Government still tried to frame the amendments as a win, with the Acting Minister for Industrial Relations (IR Minister) arguing that the casual workers provision were the ‘most critical elements’ of the reform proposal.

Casual employment

For casuals, the passage of amendments to the FWA gives greater clarity regarding the process for possible conversion to permanent employment (see Fair Work Ombudsman, 2021), as well as requirements that employers provide casuals with an information statement about their employment rights upon commencement, noting that small businesses are exempted from these requirements. However, employer groups were delighted with the overall thrust of the measures because of two key aspects of the amendments. First, the new casual provisions give clear legal precedence to the original offer of employment rather than the ongoing nature of relationship, including the subsequent actions of the parties. This drew sharp criticism from the Shadow IR Minister who claimed: ‘It means employers can now classify workers as a casual even if they work regular, predictable and permanent hours’ (Workplace Express, 2021a).

Second, the casual amendments include a provision that prevents what employers refer to as ‘double dipping’. Employers were concerned that upon conversion to permanent employment, employees may make claims for unpaid annual leave and other entitlements on the basis that they were never really a casual employee. However, the new provisions make it clear that employee entitlements upon conversion to permanent employment must take into consideration the prior payment of the additional casual loading (normally 25% of the base rate) paid in lieu of entitlements during the period of casual employment. Where these payments had been made, the employee could not ‘double dip’. This change signifies an important victory for employers on an issue that goes back as far as the Federal Court decision in Skene (WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536), and later Rossato (WorkPac Pty Ltd v Rossato [2020] FCAFC 84.), where these two employees of labour-hire company WorkPac successfully challenged the status of their casual contracts. Given major discrepancies between their casual wages and those of permanent employees in the same (mining) industry, and with the possibility of backpay for service-related entitlements accrued across the duration of potentially many consecutive ‘casual’ contracts, employer groups foresaw a huge potential future liability, and this motivated their lobbying in relation to the Omnibus Bill. And their efforts quickly bore fruit, as the Government granted WorkPac special leave to appeal Rossato in the High Court following the passage of the amendments. The High Court upheld the appeal, ruling that despite being employed on a regular pattern across multiple contracts, the employee had no clear expectation of future work. Given other pending class actions in relation to entitlements of ‘casual’ workers (more on this below) this decision was particularly timely for employers.

Agreements and awards

In 2021, employers continue to report frustration with the enterprise bargaining system. In an article in last year's review edition of this journal, ACCI's Scott Barklamb noted the need to reform the agreement certification process. The BOOT remains a fundamental flaw in the collective agreement making process, alongside what employers see as lengthy and bureaucratic certification processes. Employers’ lack of faith in the Commission's certification of agreements has been reported in earlier reviews (e.g. Barry 2016) and is still a key issue. For ACCI the answer is simple, the BOOT needs to be scrapped and replaced with a version of the former no disadvantage test (NDT) (Barklamb 2021). This position was also supported by AiGroup in the working groups (Thorthwaite & Sheldon 2021:364)

The employer groups’ joint media statement expressed the matter colourfully, noting that the failure to pass the full Bill would leave employers with ‘An enterprise agreement system that is withering on the vine because of an unworkable Better Off Overall Test and Fair Work Commission approval requirements that are almost impossible to navigate’ (ACCI, 2021c). Ramping up the hyperbole ACCI noted that ‘Part of the problem is that the rules and procedures for collective bargaining are eye-wateringly complex and agreements are too often delayed or outright rejected on technical grounds. This makes employers too gun shy to use them … Getting an agreement approved is often harder than negotiating it’. (ACCI, 2021c)

In July, EAs were again urging the Government to push forward with measures concerning agreement making contained in the jettisoned Bill. However, by this time, the FWC had established its own measures to speed up the agreement approval process, including passing 95% of all ‘simple agreements’ within 20 days. These simple agreements are those that contain complete information and do not require ‘undertakings’ (supplementary written commitments) from the parties as would be required as an additional step where the FWC determined that the agreement may not satisfy the BOOT or has other minor errors. These changes essentially replicate the certification schedule that was dumped from the Omnibus Bill; and at the time they were proposed by Justice Ross, had drawn praise from AMMA's Steve Knott as ‘appear[ing] to reflect a welcome change of heart from the FWC’. (Workplace Express, 2021b). Furthermore, the Commission's own reporting on its agreement timelines showed a marked reduction of median calendar days from 76 to 26 of all agreements, including those requiring undertakings, in just under 3 years to March 2021 (FWC, 2021). Justice Ross's statement also set out a number of initiatives to increase efficiency and reduce complexity of the system, among them, website changes, establishment of a ‘frequent users group’ to solicit ideas about possible improvements, development of guides to making undertakings, and the ability to lodge draft applications that are reviewed by FWC Members. Notwithstanding the FWC basically self-regulating in favour of the position on certification proposed by employers in the roundtable, employer representatives were still asserting a ‘strategic move away from enterprise agreements due to the complexity, unpredictability and cost of the process’ (Workplace Express 2021c).

The year also saw some limited movement on awards. Given the impact of the pandemic (discussed below), the FWC accepted employer arguments for greater flexibility in hard-hit sectors, and ruled in favour of variations to the retail, hospitality and restaurant awards. The changes are a response to measures championed by the IR Minister in 2020 which essentially streamlined award classifications and removed certain award entitlements in favour of loaded rates¹ (Workplace Express, 2020).

The pandemic

Given the evolving nature of COVID-19, matters that impacted employers regarding the pandemic depended on which month of the year was under discussion. As explained in our interviews:

“We saw our call volumes spike around 400% between March and May with JobKeeper related queries, and roughly the same across September and October with respect to vaccine related questions” (NRA, personal communication, November 3, 2021)

Through the interviews, association representatives opined that while 2020 was spent wondering whether people could work, and in what capacity (CA; APTIA; QHA), 2021 saw ‘people really ramping up for work again’ (CA, personal communication, 11 November 2021). The participating associations reported a return to business as normal, citing an increasing prominence of ‘traditional IR issues’ such as performance and misconduct (QHA, personal communication, 19 October 2021) through their advice lines. Some associations did note a substantial increase in members seeking advice regarding inappropriate behaviours, though it was suggested that this was not necessarily a consequence of increased sexual harassment in workplaces, but rather a consequence of a more open discussion and ‘greater awareness’ (NRA, personal communication, 3 November 2021).

While the pandemic has certainly been challenging, it has perhaps provided an opportunity to revitalise the relationship between associations and their members. Almost all the organisations participating in the interviews mentioned an increased frequency in communication, both in terms of formal training programmes in response to emerging government intervention, but also more opportunity for interactive communication through zoom meetings and panel discussions.

“…when the new standards on casual conversion came in, we created a raft of resources, templates checklists, for our members but I think the most popular way of getting that information to them was through a zoom meeting…I think what COVID has shown us is that this is a new way to communicate, it doesn't replace the written communication or the phone call, but it enhances getting the message out there and helping members” (QHA, personal communication, October 19, 2021)

The end of JobKeeper and the new minimum wage

In November 2020, the government's efforts to keep Australians in work through schemes such as JobKeeper, JobMaker and JobSeeker² did appear to be working. Advertisements for job vacancies were up by 8.6% on the previous month and a modest 1% higher than the same time in 2019 (Wright, 2020). However, with JobKeeper coming to an end in March, associations noted uncertainty regarding whether this trend could continue in their submissions to the 2020 − 2021 Wage Review.

The 2020−2021 Wage Review continued with the bifurcated industry groupings observed in 2020. It seemed that the FWC would again make minimum wage determinations with respect to three industry clusters (see Borland 2021) in recognition of the ongoing impacts of the pandemic and the uncertainty regarding the impact of an abrupt end to JobKeeper. While the ACTU sought an increase of 3.5%, or approximately $26.38 a week, it is unsurprising to note that associations were again largely united in their position to either freeze the minimum wage at current levels (Australian Business Industrial, Master Grocers Australia, National Farmers Federation (NFF), Restaurant and Catering Industry Association and Timber Merchants Australia) or allow for a modest increase to the minimum wage in line with the CPI (Housing Industry Association, National Retail Association, South Australian Wine Industry Association) (Workplace Express, 2021d). Both AiGroup and ACCI elected not to make initial recommendations regarding wage rises, ACCI noting it ‘was not in a position to make a recommendation to the Expert Panel in its first submission on whether there should be an increase and the level of any increase was one to be awarded. We unfortunately find ourselves in this position again in 2021.’ (ACCI, 2021d, p. 3)

In making their cases, all associations referred to the undesirable market conditions and economic uncertainty in the post-JobKeeper world, and the looming 0.5% increase in Superannuation as an existing ‘increase in wages [that] must be taken into consideration’ (ACCI, 2021e). Ultimately, the FWC unanimously moved to award a 2.5% increase to the minimum wage. Associations noted the small victory that was a delayed implementation date for some industries (ACCI 2021f; Business NSW 2021a) but was largely disappointed in the final figure.

One of the more controversial determinations regarding minimum wages though came outside of the annual review. On 3 November, the FWC included a minimum wage guarantee within the Horticulture Award 2021 [2021] FWCFB 5554 (3 November 2021) in response to claims of widespread underpayment of workers covered by existing ‘average competent worker’ rates in existing piece rate provisions (Workplace Express, 2021e). Thus, farm workers would no longer be able to work for less than minimum wage (Howe, 2021). Associations, namely the Australian Fresh Produce Alliance (AFPA) and the NFF argued that the piece rates were necessary to maintain sustainable food costs for consumers, reasonable profit margins and reward productive workers (Foley, 2021). In their media releases, AFPA (2021) offered a balanced response to the decision, emphasising the opportunity to bring balance to the playing field and encourage retailers and wholesalers to cease ‘[advocating] for employers who are wilfully non-compliant’, while the NFF were more direct in their opposition:

“It's unfortunate that instead of addressing the complexity of the formula required to calculate piece work rates, the Commission has opted for wholesale changes that will result in greater complexity.” (NFF, 2021)

The implications of such a decision for other sectors is not yet known but at the very least is evidence that the FWC and other key bodies are going to be taking firmer action to protect employees. The ‘defensive actions’ reported by Thornthwaite and Sheldon (2021:358) regarding wage theft continue in 2021, though the industries of focus have changed. While the food, hospitality and retail sectors have taken much of the public eye (Thornthwaite & Sheldon 2021; Sheldon & Thornthwaite 2020), in 2021, it appears that Building and Construction and the Higher Education (namely Universities) were a keen area of focus. Indeed the Fair Work Ombudsman expressed its concern that the scale of wage underpayment by universities was potentially preventing the investigation of underpayment in other industries (Carey, 2021). Underpayment was a prominent point of conversation in our interviews with the AHEIA who affirmed the sector's commitment to fair and appropriate remuneration, emphasising that universities were currently engaged in extensive investigation of their payments to casual employees, who are used extensively as teaching staff, and committed to rectifying identified underpayments.

Locking out the talent

Sheldon and Thornthwaite (2020, p. 415) note that ‘almost all IR and related parties agree that Australia has a skills crisis’. Addressing this crisis has always walked a delicate line between investing in local skill development through vocational education and training programmes and addressing immediate needs through skilled migration. Since the beginning of the pandemic Australia has lost upwards of 500,000 temporary skilled migrants resulting in major shortages in several industries (Hare 2021). Thus, in 2021, we saw a revival of the debate with the Joint Standing Committee on Migration opening an inquiry into Australia's skilled migration programme. It was clear from the terms of reference that the purpose of this inquiry was to make it easier to recruit skilled migrants (Palme McGuinness 2021).

In their submissions to the inquiry, associations largely lobbied to extend the Priority Migration Skilled Occupation List (PMSOL); to reduce the cost of employer sponsorship, and for a relaxing of the labour market testing rules (MBA, ACCI, Australian Hotels Association (AHA), Business NSW, Clubs Australia). Business NSW (2021b) sought to extend the terms of debate to a discussion of labour shortage so as to better represent the interests of Australia's agricultural and accommodation sector where labour gaps would typically be filled by Working Holiday Visas or the Seasonal Worker Programs. Ultimately, 22 occupations were added to the existing 19 in the PMSOL, a move celebrated by EAs. While many of these occupations were in the STEM arena, especially engineers, the AHA (2021) was pleased to see that Chef was added to the list

While the impact of these changes will not be felt until borders reopen, our interviews revealed that the pandemic had forced a change to the way that some employers address the skill shortage. Having workers locked out of the country saw some employers taking advantage of the work-from-home trend. In some instances, employers were able to reattain skilled migrants who were in Australia and opted to return to their home countries by allowing them to work from home.

When pressed on whether this internationalisation of working from home offered any advantage in productivity such as seen in other sectors, there was a resounding no. The ‘team management’ issues created in complex projects were insurmountable without people on the ground and co-located. This team management issue was not limited to just managing communication across a growing number of time zones, but also, the increased workloads of employees because of this labour gap. At the time of writing, the Government has not offered a formal response to the findings and recommendations of the inquiry. Through media releases, associations have begun to vent their frustrations regarding the absence of a plan for returning skilled migrants to the Australian labour market (ACCI, 2021g).

The vaccination rollout and the right to mandate

The first COVID-19 vaccines would become available to Australians on 22 February (Department of Health, 2021). For employers,

“There are so many aspects to “vaccination”. Obviously, the IR issues around what is a lawful and reasonable direction if there isn't a public health order in place, but there's also the health and safety aspects of it and what might be reasonable in the context of the WHS laws” (AiGroup, personal communication, October 20, 2021)

While the ACTU initially called for a ‘comprehensive education campaign’, AiGroup gave early indications of a push to support employers to mandate vaccines to ensure health and safety in their workplaces (Workplace Express 2021f). While the IR Minister initially warned employers to ‘assume they have no power’ with regard to vaccination (Workplace Express, 2021g), employer confidence to mandate grew following a decision of the FWC to uphold the dismissal of a Goodstart Early Learning employee on the grounds of refusing a vaccine (Workplace Express, 2021h). Soon after the Goodstart decision, and in the context of growing concerns about the potential side effects of AstraZeneca's Vaxzevria, ACCI began calling on the government to protect employers from potential Workcover claims where a mandated vaccine has an adverse effect (ACCI, 2021h). This indemnity issue was seen as a major roadblock to the positive role that employers may have played in the rollout (Workplace Express 2021i).

By August, EAs and unions had begun to find more common ground; with a joint statement from the BCA and ACTU suggesting that decisions regarding vaccination ‘should not be left to individual employers and should only be made following public health advice based on risk and medical evidence’ (BCA, 2021). This cooperation was also mentioned in many of our interviews; as was the view that the union movement may be fracturing. Participants spoke of differences between a broader union movement that ‘support[ed] vaccination, but [not] drivers losing their jobs who aren't vaccinated’ (APTIA, personal communication, 28 October 2021) and the ‘red unions … [who] have hopped on the anti-vaccination bandwagon’ (AiGroup, personal communication, 20 October 2021). These Red or Unregistered unions have been linked to supporting challenges to mandatory vaccinations across Australia, but many of these have been rejected by the relevant courts (Workplace Express 2021j; Workplace Express, 2021k). Largely though, it would be fair to say that unions and associations have worked harmoniously in the mandate space. The only notable exception to this harmony would be in the case of BHP who faced significant resistance to their mandate, though this resistance appears to rest more on the consultation process than it does a rejection of vaccine mandates themselves (Workplace Express, 2021l).

Emerging issues

Class action and the ‘litigation industry’

In 2020, employer groups joined others concerned at the emergence of a growth industry in class action litigation. AiGroup claimed that class action lawsuits targeting employers has seen insurance premiums increase as much as 600% (AiG, 2020). However, employers have carefully framed their submissions and media statements to highlight that they are concerned that overseas litigation firms are charging excessive fees which means that (employee) claims and not delivering justice for litigants. This positioning resonates with media opinion expressing outrage at the lack of regulation of the industry, including high-profile cases (such as Banksia Securities in 2012) that revealed exorbitant returns to lawyers and litigation funders, apparent conflicts of interests between the same parties and poor (or zero) returns to plaintiffs (Clark, 2021). With other class action claims in prospect, the definition of casual employee in the amendments to the FWA and outcome of Rossato (mentioned above), give employers some greater confidence in this space moving forward, notwithstanding uncertainty remaining in the legal status of workers in platform/gig work.

Future of work

Employers are concerned to ensure that the future of work, including increased participation in platform/gig work, does not expose them to additional costs or employment risks. A Victorian Government inquiry into On-Demand work produced a report in 2020 that recommended that the status of workers as independent contractors be removed in favour of a legislative definition of these workers. Employer groups raised strong objections to these suggestions. First, noting that platforms operate in the federal jurisdiction, employers urged that the Commonwealth, and not the states, be leading any review of work status regarding gig work. AiGroup's submission firmly reasserted the case for the maintenance of independent contractor relationships under the common law. Employer groups assert that any potential amendments to the FWA to extend the coverage of ‘worker’ to potentially include ‘entrepreneurial worker’ definition will create unworkable regulation and uncertainty given the nature of this work.

“We don't need some sweeping reform deeming independent contractors of certain types to be employees, what we need to do is look at discrete issues like the accident insurance issue and the payroll tax issue.” (AiGroup, personal communication, October 20, 2021)

However, this ‘discreet issues’ approach championed by AiGroup which has ‘significant membership in the gig work area’ was challenged in April 2021 when Menulog Pty Ltd announced a pilot programme to employ couriers operating in the Sydney CBD. To facilitate this, Menulog argued that a new award would be needed: the ‘On Demand Delivery Services Award’. During the initial submissions, there appeared to be significant resistance to the new award. For example, both the Australian Road Transport Industrial Organisation (ARTIO) (2021) and Transport Workers Union (TWU) (2021) opposed a new award arguing that the existing Road Transport and Distribution Award 2020 already reasonably accounted for the work undertaken by Menulog's couriers. However, this would mean that riders must work a 4-hour shift rather than the one-off delivery that typifies the food delivery market (Barratt et al., 2021b). The debate further extended into the potential utility of either the Fast Food Industry Award 2010, or the Miscellaneous Award 2020 to provide fair coverage and protections to ‘on demand’ delivery drivers. AiGroup and ACCI/ABI suggest that workers would either have sufficient coverage under the Fast Food Industry Award or the Miscellaneous Award. Academic resistance was also evident, especially in the reply submissions where Barratt et al. (2021a) argued that establishing a new On Demand Delivery Services Award would undermine the equal pay for equal work principles of the Modern Award Objectives. Specifically, they highlighted that the use of the technology creates a labour cost advantage in restructuring how employers remunerate staff during idle time. The only support for Menulog’s position came from the National Road Transport Association (NatRoad) that argued ‘whilst the Distribution Award prima facie covers the employers and employees in the on demand delivery services industry, we would support the creation of a new award that better reflects the environment in which work is undertaken’ (NatRoad, 2021, p. 8). At the time of writing, there had been no further updates from the FWC regarding the new award. An oral hearing was set to be held on 6 December and the decision was reserved (Taylor, 2021).

Conclusion

In 2021, employers and their associations walked a narrow line, balancing a combination of defensive and proactive behaviours. This meant balancing attempts to maintain the status quo (such as seen in the discussions concerning the national minimum wage) while simultaneously seeking to capitalise on 2020's ‘state-sponsored IR policy change’ (Thornthwaite & Sheldon, 2021: 370). As seen above, disappointment ensued on both fronts. While employers were pleased to have achieved clarity in relation to casual employment through the Omnibus Bill process, this win came at the cost of very public acrimony involving some of Australia's leading associations. The troubled passage of the Omnibus Bill also reveals how employers’ insatiable appetite for IR regulatory change often exceeds the outcomes that eventuate from major policy change initiatives, including those launched by governments with pro-business leanings. Once again, broader ‘politics’ has played an important role in slowing the pace of the employer agenda where this is perceived to exceed community expectations of a balanced IR system. Put more specifically, employer and EA expectations can easily misjudge what is possible in Australia's Federal political system, where crossbench support for change in recent parliaments has been necessary, but often idiosyncratic and frustrating, when it comes to IRs.

Footnotes

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Ryan Gould

Notes

Biographical notes

Michael Barry is a Professor of Employment Relations in the Department of Employment Relations and Human Resources at Griffith University. He is written a number of papers on employer associations, including prior JIR annual reviews. He is currently a chief investigator on an ARC Linkage project examining employee voice in hospitals.

Ryan Gould is a Scholarly Teaching Fellow in the Department of Employment Relations and Human Resources at Griffith University. His main research interests are business model innovation and positive workplace relationships, namely employee health and well-being.

References

ACCI (2021a) IR Omnibus Bill needs to be passed this week . Media Release, 15 March 2021, Available at: https://www.australianchamber.com.au/news/ir-omnibus-bill-needs-to-be-passed-this-week/ (Accessed 8 December 2021)

ACCI (2021b) Achievement of casual employment certainty is welcome but the rest of the IR Omnibus Bill must not be adandoned [sic] . Media release, 18 March 2021, Available at: https://www.australianchamber.com.au/news/achievement-of-casual-employment-certainty-is-welcome-but-the-rest-of-the-ir-omnibus-bill-must-not-be-adandoned/ (accessed 8 December 2021)

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