What does the election result mean for employers?

For employers in the residential building industry a change in government signals a change in approach, particularly on IR issues and HIA is advising members to make sure their current employment and contracting arrangements are compliant.

Check out our three tips below on how to best prepare yourself for possible changes to IR laws.

1.????Make sure your independent contractors are genuine independent contractors

Independent contracting is a quintessential part of the residential building industry and may be on the ALPs’ agenda. The ALP has signalled that it will give the Fair Work Commission powers to rule on ‘employee-like’ forms of employment and work, including gig economy workers and to make ‘job security’ a focus of employment laws.

What to look out for?

While different regulators across the country can have different approaches some things to look at when considering if someone is an independent contractor include:

• Do you have a written contract?
• Is the contractor paid on invoice?
• Do they have an ABN?
• Can they work for others?
• Can they engage or employ others to help do their work?
• Do they have their own workers compensation (where applicable), public liability and sickness & accident insurances?
• Do they bear the risk of rectifying faulty work and have the opportunity to make a profit?
• Do they advertise to the general public?
• That they are not entitled right to usual employee entitlements such as annual leave and sick leave?

If you answered ‘yes’ to most of those questions, your worker is likely to be a genuine independent contractor.

?2.????Make sure your casual employees are genuine casuals

?In 2021 the Fair Work Act was amended to include a definition of a casual employee.

?This was part of broader reforms which gave casual employees the right to request to convert to full time or part time employment if they meet certain criteria.

?The current definition of a casual employee centres around there being no firm advance commitment to continuing and indefinite work.

?The ALP plans to amend the definition of a casual employee and legislate a?"fair, objective test to determine when a worker can be classified as casual, so people have a clearer pathway to permanent work". While the specifics are not clear, it is expected that the definition will be further refined, with fewer employees meeting the definition of a casual employee and consequently more employees being offered permanent work.

?What to look out for?

• ?If you have casual employees consider the following:
• ?Does the employee know the job is a casual job?
• Is the employment described as casual?
• Does the employee accept that there is no firm advance commitment that the work will continue indefinitely with an agreed pattern of work?
• Can you choose to offer the employee work?
• Can the employee choose to work or not?
• Is the employee offered work when you need them to work?
• Is the employee paid a casual loading (a higher pay rate for being a casual employee), or a specific pay rate for casual employees?

?If you answered ‘yes’ to most of those questions, your worker is likely to be a casual employee.

?3.????Are you paying the correct wages?

The handing down of the annual minimum wage decision means it is a good time to review your employees’ wages, particularly if your employee is covered by a Modern Award.

The ALP has also campaigned that it will legislate to make wage theft a criminal offence. This means that wage underpayments may be subject to criminal penalties. Laws like this are already in place in Queensland and Victoria.

What to do next?

Now is a good time to review your employees' pay to ensure they are being paid in accordance with any applicable Modern Award. Address any issues of underpayment immediately and take steps to ensure underpayment does not occur in the future.