ALP urged to rethink its wage theft laws

Former Fair Work deputy president says Labor should dump proposed laws criminalising wage underpayments.

Workplace Relations Minister Tony Burke. Picture: Getty Images

Former Fair Work Commission deputy president Peter Sams says the Albanese government should dump proposed laws criminalising wage underpayments and delay its controversial same job, same pay policy until after the next election.

Mr Sams, a former NSW Labor Council secretary who noted he was in Young Labor at the same time as Anthony Albanese and Employment and Workplace Relations Minister Tony Burke, said Labor had a “huge” industrial relations agenda that would take two terms to implement.

Speaking at an industrial relations roundtable organised by workplace law firm Kingston Reid, Mr Sams said he had some doubt about the use of making wage theft a criminal offence, given the higher criminal test.

Mr Sams, who spent a combined 22 years on the bench, said it would be better kept in the civil jurisdiction where the test was not so high.

“I have never liked the term (wage theft) because it’s only in the most extreme cases that you would really describe it as theft,” he said.

“And there have been a few ­organisations along the way that would have been captured – the ABC and a few left-union law firms that have been caught with underpayment claims.

“It touches everybody and I think you just want to be a little bit careful about how much you want to make this a bogeyman that’s going to create all sorts of difficulties.”

Mr Sams said he expected the government to remove the ­capacity of employers to unilaterally apply to terminate enterprise agreements, given the depth of union anger at the provisions.

“It was when it became used as a negotiating tool – what has often been described as the nuclear option … that I think the unions are so angry about it that I don’t think (the government) will do anything other than remove it, get rid of it,” he said

“I think there is so much anger towards these provisions that the unions will call in their chips in ­respect to this.”

He said Labor’s policy that ­labour hire workers doing the same job as direct employees were entitled to the same pay was extremely complicated and “I think it’s going to be pushed off to a second term proposition – if at all”.

Mr Sams said changes were needed to fix the broken enterprise bargaining laws as the ­approval process forced employers to deal with scenarios that will never apply to them. He said if he had his way he would throw out the Fair Work Act and use NSW workplace legislation as a model.

Speaking at the roundtable, Australian Industry Group head of national workplace relations ­policy Stephen Smith said the federal legislation was not fit for purpose.

“Labor’s ‘same job, same pay’ policy is generating a lot of concern amongst businesses. The ­examples used by Labor are typically those of workplaces covered by enterprise agreements where labour hire employees have been engaged on lower rates of pay than the client’s workforces,” he said.

“However, Labor has not ruled out adopting a definition of ‘labour hire’ like those in the labour hire licensing schemes implemented by various state Labor governments. These definitions are extremely broad and cover a vast array of contractors, including professional service providers, that are not legitimately considered to be labour hire.”