During this federal election campaign, the Coalition government is counting on its crusade to bring back the Australian Building and Construction Commission to dominate the public discussion on industrial and workplace matters. In doing so it hopes to distract us from other plans and policies on their agenda that will impact directly on the living standards of working people, their workplace rights and workplace laws. You may recall following the last election, the Coalition government commissioned several reviews into workplace laws, employee entitlements and the regulation of unions including the Productivity Commission’s Inquiry into the workplace relations framework.
While the terms of reference were very broad, the Inquiry was clearly established to give the Coalition government and their supporters in the business community the ammunition to attack penalty rates and the safety net of wages and conditions established under the current system of workplace regulation.
The two volume Report (Productivity Commission 2015) released late last year predictably recommended a range of so called industrial ‘reforms’, that if implemented, would send our system back to the dark days of WorkChoices.
For example, the recommendation that the Fair Work Commission (FWC) should, as part of its current award review process reduce the Sunday penalty rate to the Saturday penalty rate in the hospitality, entertainment, retail, restaurants and café (HERRC) industries (including fast food).
This recommendation is currently being considered by the FWC as part of an employer application to reduce penalty payments in several hospitality and retail sector Awards.
While ‘essential services’ are not part of the Productivity Commission’s recommendation, there are no guarantees that this government, health industry employers, aged care employers or other employers of nurses, midwives and personal carers will not adopt this approach now or in the future. Government and employer arguments about the rising costs of health and aged care place increase pressure on maintaining accepted standards around wages and conditions of employment.
There are also many areas of employment in the health and aged care sector that are not as highly unionised or not covered by enterprise agreements and are more vulnerable to a reduction or removal of penalty rates and allowances if it were not for the safety net of minimum standards set out in the relevant Awards.
Any reduction or removal of minimum conditions of employment in any industry should ring alarm bells for the rest of us. The rhetoric we hear too often from Coalition members and their supporters that regulation is ‘restrictive’ and workplaces ‘inflexible’, suggests they will not be satisfied until there is only the bare bones of regulation left in all sectors of the labour market.
This brings us to another recommendation of the Productivity Commission that is particularly alarming and could impact employees across all sectors of employment; that being the government amending the Fair Work Act to allow a new industrial arrangement called an ‘Enterprise Contract’. This is another version of the WorkChoices individual contract we knew as an ‘Australian Workplace Agreement’ (AWA) which allowed employers to offer individual contracts that sat outside the award system and contained wages and conditions that were below the minimum standards set down in awards.
The Australian public soundly rejected the harsh realities of the WorkChoices regime and AWAs back in 2007 however it appears the assurances by Coalition members of Parliament that WorkChoices was ‘dead, buried and cremated’, refers to its title only.
‘Enterprise contracts’, as proposed by the Productivity Commission would allow an employer to offer new employees employment contracts on a take it or leave it basis, that is, sign up or no job, with no negotiation over the terms of the contract with employees or their union required.
Another worrying aspect of the proposal is that the ‘enterprise contract’ does not have to be approved by the FWC and any concerns that the wages and conditions do not meet the safety net is left to the individual employee to raise with the FWC.
It is also possible under this arrangement for a contract to pass a ‘no disadvantage test’ on the basis of ‘non-cash’ benefits offered in the contract. For example, an employer could agree to an employee’s preferred days and hours of work on the condition that the penalty rates or shift allowances payable under the Award do not apply. In other words, employees may be asked to ‘trade-off’ award wages and conditions in return for working arrangements that are deemed ‘non-cash’ benefits.
It was evident under the system of AWA individual contracts, many employers took full advantage of the opportunity to reduce conditions using AWAs to remove or reduce a range of conditions including penalty rates, shift allowances, overtime payments, public holiday payments, leave loading and rest breaks (Office of the Employment Advocate, 2006).
There are few recommendations in the report that, if implemented, would not impact negatively on workplace laws, workplace rights and entitlements; reducing protections for employees and shifting the balance too far in favour of the employer.
The ANMF will campaign against any Coalition policy or plans to change the current industrial laws that will undermine employee rights and entitlements fundamental to maintaining fair and acceptable standards in all workplaces.
Federal Industrial Research Officer
- Office of the Employment Advocate (OEA) data supplied to Senate Estimate Committee May 2006
- Productivity Commission 2015, Workplace Relations Framework, Final Report, Canberra