A look at what the new government’s policies and cabinet appointments portend for the people profession. Also, how will unions react to the Coalition win?
For HR, on a professional level, the election had two very different possible outcomes. One was a Labor victory that promised a fierce wind of change. The opposition party dangled legislation on everything from gender pay equality and domestic violence leave to multi-enterprise bargaining agreements and changes to the way the Fair Work Commission (FWC) calculates the minimum wage.
The other outcome, the one we have, is much simpler. We continue with something resembling the existing agenda. But how will Scott Morrison build on the Turnbull and Abbott legacy?
What we know
Prime Minister Scott Morrison did not go into the election with an extensive platform, preferring instead to focus on framing Labor’s many policies as risks. But if you’re looking for a hint of his direction, a decent place to start is the new cabinet.
For HR, the most interesting choice was to give Attorney-General (AG) Christian Porter the Industrial Relations portfolio. Australia’s First Law Officer of the Crown has already made a brief announcement regarding the additional role.
“In Industrial Relations, my initial focus will be on the law enforcement aspects of the portfolio, ensuring adherence with Australia’s industrial relations laws, particularly on building sites across Australia,” Porter says in a media release.
Given the history of this government (the previous double dissolution election was purposefully triggered by former PM Malcolm Turnbull over the failure of Australian Building and Construction Commission bill) this vague statement can be safely read as a signal that the government will be focussing on union actions on worksites.
In an interview on Sky News, Porter was asked if he would be a reformist and he palmed the question off saying the portfolio had “literally just only arrived”. He said he was open to meeting employer bodies and “serious members” of the union movement.
“I would offer the observation that Australia has soundly rejected class warfare, divisions being created between employers and employees, between different level of incomes on the tax scale,” he added.
The hopes of some
Some employer groups have already announced their hopes for Porter’s tenure.
- The Australian Resources and Energy Group wants the AG to “review the performance and processes of the FWC… employers are very concerned about the FWC’s performance with what should be basic administrative tasks, such as the approval of enterprise agreements taking on average 76 days, and in some cases much longer, to complete.” It suggests that this responsibility could be moved to the Fair Work Ombudsman (FWO).
- Australian Chamber of Commerce and Industry chief executive James Pearson, speaking to The Australian, has called “for changes to unfair dismissal laws, including greater deterrence against frivolous claims.”
- In the same article, chief executive of Australian Industry Group Innes Willox called for changes to the better-off-overall test “to end unions using insurance and income protection schemes as multi-million-dollar nest eggs for their benefit.”
These are all fairly big asks for a government that didn’t go to the election announcing any big IR changes. And how much will the Coalition really want to shake things up? The last time there was a massive swing towards Labor was after the then Prime Minister John Howard proposed WorkChoices.
If the government does try to tackle any of the above, their approach to the definition of casual work might be the roadmap.
HRM wrote about this before, but essentially the strategy was to thread the needle. They passed a law that tried to address the most serious concern of employers (double dipping) and carefully crafted a different law that gave casuals a formal route to more permanent employment, while also putting the finger on the employer side of the scale when it came to refusing requests and defining who is and isn’t a casual.
But regardless of whether the Coalition attempts bigger changes, we should definitely expect at least some changes on the margins.
One such area that deserves attention, that it won’t get enough of, is the AG’s power to nominate people to judicial posts.
Porter has drawn controversy in the past for stacking the courts with young, employer-friendly judges, including someone he knew from university (youth is important because there are mandatory retirement ages). This is after the Coalition removed Labor-instituted independent panels that helped with the selection process for Federal appointments.
How such appointments are conducted is not something the general public really understands or cares about – they certainly did not vote on it in the recent election – but it’s important.
Before the election, Australia’s peak legal body, the Law Council of Australia, attacked the Coalition and supported Labor’s plan to restore appointment panels. “A judicial appointments process that takes place behind closed doors and involves discussion with a select few is the very antithesis of the core values of our system,” president Arthur Moses told the Australian Financial Review.
He raised several objections to the current regime (anyone in HR who has a recruitment and/or career development role will nod their heads at his rationale).
- It reduces gender and ethnic diversity. “If you are only seeking the views of one or two individuals before making appointments, it is inevitable you will only obtain recommendations of candidates who those individuals know, or who share their likeness… this leads to a bench that does not represent the community.”
- An untransparent process can create speculation that the appointments are not given on merits, but for political reasons. This hurts the perception of fairness, and “unfairly casts a shadow over the reputations of those appointed”.
- Limited consultation means you don’t have a complete idea of the talent available
But the Coalition won the election, so it’s likely Porter will continue as he has. What does this mean for HR?
HR professionals may see some impact on individual cases their organisation deals with, but for those that don’t understand what is meant by an “employer-friendly” judge, it doesn’t really mean one that will twist the law to quash worker rights. An employer-friendly legal professional is usually just one that has spent the preponderance of their career representing organisations in disputes. Sometimes they will be philosophically pro-business, but it’s often the case that their bias is a natural one that builds on initial career inclinations. Over time they see the world through an employer lens, just as a barrister who only represented workers would organically align themselves on that side of the equation.
Theoretically, it means that whenever that judge comes up against a legal grey area, they will err towards decisions that favour employers. Over the years, this can have larger and larger impacts as more of their decisions become case law.
A small business election
Senator Michaelia Cash has been given a role as Minister for Employment, Skills, Small and Family Business, with oversight of the Department of Jobs and Small Business. It’s something of a controversial decision.
Turnbull’s government demoted Cash from her position as Employment Minister in the middle of last year largely due to the controversy surrounding leaked information about an October 2017 raid of the Australian Workers Union to the press. The Senator had to correct her testimony when it was found the leak had indeed come from her office. She has always maintained that she’s done nothing wrong.
Cash will be joined by Steve Irons in actioning the Coalition’s most significant pre-election budget policies – the promise of a revamping to Australia’s vocational training system, 1.25 million jobs and 80,000 apprenticeships over the next five years. (For more on what was relevant to HR in that budget, read this article.)
If whatever the government does in this space works, the HR impact would presumably be a deepening of the talent pool when it comes to recruitment.
What will the unions do?
Currently only 15 per cent of the workforce has union membership (down from 35 per cent in 1994 and 51 per cent in 1976). Only in the public administration and safety, and education and training sectors is membership close to a third (32.1 and 32.5 per cent respectively).
The unions were aiming to broach the subject of multi-employer agreements with Labor, having already been assured that penalty rates and the minimum wage would be addressed. Now they find themselves pitted against a government that finds the idea of increasing union bargaining power abhorrent.
A Workplace Express article (paywall) does a fine job of breaking down the dilemma for Australia’s unions. It talks to Griffith University Professor David Peetz who poses the following as an essential question. “Will union activists feel so disillusioned by the election result that they give up? Or will they put more effort into workplace action in recognition of the failure of political action?”
Other things the article notes:
- Private sector bargaining is on a steep decline, and that trend will not reverse given the current IR laws
- The union ‘Change the Rules’ campaign may not have overturned the government, but it was a successful drive for increased membership
- The wage “crisis” combined with increased general anger at consumer prices could be a “potent mix” that would work against the Coalition (this from the Centre for Future Work director, Professor Jim Stanford)
The ScoMo touch
The Prime Minister himself is a bit of an unknown factor. He has not been in power for long, and we’re only just now going to get to see what his governing style is when he’s been elected leader in his own right. Will it be what we saw during the election?
If so, the workplace policies Morrison proposed are anything but sweeping, and don’t require much from employers.
As mentioned before the election, a representative example is the Mid-Career Checkpoint initiative. It’s a government-funded single session mentoring program “targeted at women” but open to men aged 30 to 45 who have either:
- Taken two years off of work to care for family; or
- Have been back at work for 18 months or less and want a mentoring session to help them “step up their career”
To editorialise briefly, the fate of this $75 million policy doesn’t seem promising. It was a mid-election promise designed, from all appearances, to help Morrison address what his team thought of as a possible weakness with women voters. It wasn’t meant to make a splash beyond the news cycle in which it was announced.
This could be wrong. The counter-argument is that there is every chance that many parents will benefit from the program. But while it’s possible there will be a small upside, it’s just very doubtful. Effective mentoring takes time because it requires a real relationship to understand your specific career aspirations and challenges – it cannot be achieved through a single session with a mentor of dubious relevancy to your circumstances.
So if Morrison aims for these kinds of workplace policies the impact will be minimal. On the other hand, the policy was crafted when his back was against the wall. We have less of an idea of what he will do with three years in power.