On 21 March 2022, Labor leader, Peter Malinauskas, was sworn in as the 47th Premier of South Australia (SA). The Labor party secured a resounding victory over the former Marshall Liberal Government off the back of a campaign promise that their policies were not just for the next four years but also for the next generation.

As the dust settles and South Australians get used to a new government, employers should turn their minds to Labor’s industrial relations (IR) policy, which did not receive the same level of attention and scrutiny from the media as some of its other policies like health.

The proposed changes under Labor’s IR policy may come as a shock and require a thorough review of systems, policies and procedures.

Malinauskas government’s industrial relations policy

In summary, the new Labor government has committed under its IR policy to the following:

  • Privatisation: a ban of new privatisations of public services and a commitment to bring trains and trams back into the public sector.
  • Criminal law: the introduction of criminal offences for ‘wage theft’ and industrial manslaughter and new aggravated offences for those who abuse or assault frontline workers.
  • Long Service Leave / Labour Hire: a commitment to expand the scope of the portable long service leave law and labour hire law such that both apply to a broader range of occupations in the State.
  • Funding: to support Mates in Construction that works to reduce suicides in the building industry, organisations that provide asbestos education and support to victims and a review of SafeWork and the South Australian Employment Tribunal.
  • Gender Equity: a commitment to work to improve gender equity and access to family violence leave.
  • Other: strengthen the voice of workers and their representatives and ensure that TAFE SA can deliver training in critical skill areas for the future.

Under its IR policy, the new Labor Government’s commitments closely align to the industrial relations agenda implemented by the Andrew’s Labor Government across the border in Victoria.

The application of criminal law to workplaces

Workplace Manslaughter

On 1 July 2020, through amendments to the Occupational Health and Safety Act 2004 (Vic), the new criminal offence of workplace manslaughter commenced in Victoria.

An officer of a company commits the offence of workplace manslaughter if they engage in conduct that:

  • is negligent;
  • constitutes a breach of an applicable safety duty the person owes to another person; and
  • causes the death of that other person.

Negligent conduct is taken to include any act or omission that involves:

  • a great falling short of the standard of care that a reasonable person would have taken in the same circumstances; and
  • a high risk of death, serious injury or illness.

The maximum penalty for an officer of a company is a term of imprisonment of 25 years, and a company may also be fined for the offence of workplace manslaughter.

South Australia has never had a separate criminal offence of manslaughter for conduct at a workplace.

Under SA Labor’s IR policy, they stated:

“it’s a crime and should be treated like one”.

SA Labor committed to ensuring that the penalty would fit the crime with a maximum prison term of 20 years and “significant financial penalties for companies” consistent with the Victorian model.

The new Malinauskas Government’s introduction of a criminal offence for workplace manslaughter would significantly increase the maximum term of imprisonment for an officer of a company who is found guilty of negligent conduct in breach of a health and safety duty.

Wage Theft

In 2020, Andrew’s Labor Government introduced the new laws in response to concerns that wage theft was rife in Victoria. They made it a criminal offence for employers to withhold employee entitlements or underpay employees dishonestly.

The new laws, established under the Wage Theft Act 2020 (Vic) (WT Act), expose individuals to a monetary penalty of up to $218,088 or up to 10 years jail and employers to fines of up to $1,090,440.

Under the WT Act, it is now a criminal offence in Victoria to:

  • dishonestly underpay employees;
  • dishonestly withhold wages, superannuation or other employee entitlements;
  • falsify employee entitlement records to gain a financial advantage; and
  • fail to keep employee entitlement records to gain a financial advantage.

The WT Act applies where an employee:

  • performs services wholly in Victoria; or
  • where there is a sufficient connection between Victoria and the employee or the employer.

Andrew’s Labor Government has also provided for cases brought under the WT Act to be fast-tracked in the Victorian Magistrates Court, which received funding to support the new regime.

The language of SA Labor’s IR policy would strongly suggest that the new Malinauskas Government will seek to introduce wage theft laws that are either the same or similar to those introduced in Victoria.

When devising their IP policy, SA Labor relied upon a report from the McKell Institute, which stated that South Australian workers suffer from widespread wage theft, which costs them $500 million a year. They committed to introducing wage theft laws that establish criminal offences and penalties to combat the widespread wage theft in response to:

persistent and deliberate underpayment of workers, including wages and superannuation”.

The SA Labor Government also wishes to ensure that “Court processes (are) streamlined to make it easier to collect money…” where there is a non-payment or underpayment to support its new regime.

How should employers respond?

Malinauskas’s Labor Government has made its intention clear in relation to its industrial relations agenda, particularly its desire to criminalise wage theft and introduce a separate criminal offence of manslaughter for conduct at a workplace.

We recommend that all employers conduct a review of their payroll function to ensure that they are compliant with minimum wage obligations under Modern Awards and other obligations under the Fair Work laws in response to the possible criminalisation of wage theft.

To prepare for the proposed new criminal manslaughter offence, employers should consider a review of:

  • the potential hazards and risks in the workplace, including mental health risks and ensuring that these are incorporated in the OHS approach;
  • the safety systems and controls currently in place and ensure they are fully effective (including a mental health risk assessment and compliance plan);
  • all existing policies including “unwritten practices” relating to health and safety;
  • incident action plans and responses; and
  • the education of directors, senior officers and managers on the proposed new laws.

If you would like to know more about how the proposed new laws will affect your business or need help getting ready for them in anticipation of their commencement, please get in touch with one of our employment law experts.

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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Ben Duggan

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