AREEA calls for workplace law modernisation
The Australian Resources and Energy Employer Association (AREEA) is lobbying for the revision of structural flaws as part of the Federal Government’s national employment standards (NES) review.As part of a submission to the House of Representatives Inquiry, AREEA calls on the Federal Government to use the NES review to fix Australia’s workplace laws, not expand entitlements or add more complexity and business costs, arguing that the central issue is the growing incoherence between the law and modern work practices.AREEA says the most urgent reform area is the application of public holiday provisions in 24/7 and remote workplaces, especially those in Australia’s mining sector.A 2023 Federal Court decision created confusion for employers operating continuous rosters, requiring them to request employees to work public holidays even where long-term roster arrangements already incorporate those days.AREEA chief executive Steve Knott says the NES review must fix what’s broken.“Nearly 17 years after the Fair Work Act was introduced, the system no longer reflects how work is actually performed, particularly in continuous, shift-based and FIFO operations that underpin Australia’s resources and energy sector,” he said.“In remote and offshore environments, employees cannot simply walk off site or down tools on a public holiday.“The law currently assumes a traditional Monday-to-Friday workplace. That is not how Australia’s resources industry and many others operate.”AREEA is calling for clear statutory rules that allow roster-based public holiday notifications for continuous operations, clarify how refusals are assessed in FIFO contexts and prevent double payment where public holidays are already priced into annualised salaries.“This is about restoring common sense and coherence to the safety net, not reducing employee protections,” Mr Knott said.“Our workplace laws must recognise that many employees are already compensated for working an assumed number of public holidays each year.AREEA also warned that prescriptive award-based record-keeping obligations attached to annualised salaries have become a major source of technical non-compliance, even where employees are paid well above award rates.“In many remote operations, highly skilled employees are paid guaranteed annual earnings significantly above minimum standards. Award rates become largely irrelevant,” Mr Knott said.“Yet employers are required to operate parallel time-recording systems solely to satisfy award technicalities that have no impact on pay outcomes.“The system has shifted from protecting employees against underpayment to penalising employers for paperwork defects.”AREEA’s submission also calls for moderation of annualised salary record-keeping rules, safe harbour compliance mechanisms and simplification of reconciliation requirements in 24/7 and roster-based environments.More than 15 years have passed since the Fair Work Act was implemented and over that period, significant changes in industry structure, technology and social expectations have occurred.Modern awards were intended by the Federal Government to supplement the NES, by providing a limited number of additional minimum standards tailored to particular industries and occupations, rather than requiring the NES itself to accommodate all forms of work.In AREEA’s view, this framework has been progressively undermined by judicial interpretation that seeks to shoehorn modern, flexible and salaried work arrangements into rigid NES concepts that were never designed for that purpose“The NES was designed to be clear, simple and enforceable,” Mr Knott said.“Instead, years of court rulings and piecemeal changes to the law have turned it into a source of duplication, uncertainty and litigation risk.“This review is an opportunity to modernise the safety net for modern work. It should not be used to expand regulation without evidence of need.”
