Now that the slick Kevin 07 machine has swept to power, Australia should expect the Liberal Government’s extreme workplace laws to be torn up right? Wrong. Beneath the spin lies a remarkably different reality. Despite the Australian Labor Party’s (ALP) promise to abolish WorkChoices being the driving factor behind the violent swing away from the Government, it is doubtful that Kevin 07 will be able to deliver on his rhetoric.
Kevin 07 and his soon to be Workplace Relations Minister Julia Gillard propose to cut out the politically unpopular core of WorkChoices, tinker around the edges and re-instate balance and fairness in the workplace – but overall their plan looks like WorkChoices 2.0 or WorkChoices Lite. In an effort to paint himself as a low risk conservative option to the Australian people and win back the support of business groups, Kevin 07 has largely sold out on his party’s traditional power base – trade unions while still taking their funding and support.
Kevin 07 will retain large swathes of the Howard government’s ideologically driven workplace laws while beating his chest that he will ‘rip up’ WorkChoices and Australian Workplace Agreements (AWAs). No matter what the ALP promises, they first need the backing of the Senate. This could mean the ALP would have to wrangle with the Greens, Family First, an independent and possibly the Liberals to pass their amendments
Lets examine the Kevin 07 and Gillard workplace reform blueprint called Forward with Fairness and some of the claims made by business groups.
Kevin 07: Individual contracts will be torn up
What will really happen is that existing AWAs will continue to operate until their expiry date. This means an individual contract signed and lodged today with the Workplace Authority could run potentially for another 5 years – and its pay and conditions remain beyond that if neither party replaces it with another form of agreement.
To ease the transition process for business, Kevin 07 will create new individual agreements for a limited period for those already on AWAs and new employees. However, these contracts must meet tougher new standards that inhibit the pro-employer flexibility available under WorkChoices. Workers earning in excess of $100,000 per annum can bargain their own common law contracts that exclude award conditions.
Business groups: ‘Union bosses’ will be comin’ back to a workplace near you
Kevin 07 has promised to retain existing punitive restrictions on union
right of entry into workplaces, lawful industrial action and secret pre-strike ballots. This means unions cannot simply walk into small businesses and ‘turn off the lights’ and ‘stuff the economy’ by going on sympathy strikes as claimed in the farcical – but funny Liberal party scare campaign. It will remain lawful for employers to ‘lockout’ employees who go on strike.
Kevin 07 promises to put Australia back in line with other liberal democracies and International Labour Organization standards and enshrine the right to good faith collective bargaining in law. Unions will be allowed back into workplaces when a majority of employees vote in favour of a union collective agreement.
Business groups: The ALP’s new super-agency will flow-on wage increases across the economy
Now this was a desperate Howard dirty trick. He claimed Kevin 07’s policy would push up inflation by allowing wage increases in one enterprise to automatically flow on nationwide.
In actual fact, the ALP started the dismantling of centralised wage fixing in the early 1990s – so why would it wind back its own reforms? Existing prohibitions on pattern bargaining (except in certain circumstances) or spreading uniform pay and conditions across industries will be retained.
Kevin 07’s emphasis is on a return to productivity bargaining at the enterprise level with the choice of entering into union or non-collective agreements. All collective agreements must include an upward flexibility clause to enable employers and employees to reach mutually beneficial outcomes.
The ALP will establish a new national independent umpire – FWA to centralise the functions performed currently by a multiplicity of agencies created by WorkChoices (such as the Workplace Authority and Workplace Ombudsman), but it will not centrally fix wages. Kevin 07 will continue the process initiated by the Howard Government and perform the last rites to the ailing Australian Industrial Relations Commission.
FWA is designed to be an accessible ‘one-stop-shop’ with branches across the country. It will be responsible for adjusting minimum wages and conditions, assessing and approving enterprise agreements, providing advice, enforcing compliance and assisting in the resolution of disputes. The “better off overall test” will ensure collective agreements meet ten newly legislated minimum conditions plus applicable award protections.
Business groups: Unfair dismissal protections will cost jobs
Under the pre-text of growing jobs and encouraging small business, WorkChoices exempted workers from filing an unfair dismissal claim against constitutional corporations with less than 100 employees or who were made redundant for ‘genuine operational reasons’. However, no evidence exists linking exemption from unfair dismissal to jobs growth.
Kevin 07 will abolish these laws and create new restrictions. In a small business with less than 15 employees, employees can only make a claim within 7 days of dismissal and after completing 12 months service. In other businesses, employees would remain exempt from making an unfair dismissal in the first 6 months.
FWA would assist in the speedy resolution of such claims through conciliation. A simple Fair Dismissal Code will assist employers in compliance and ‘de-legalise’ the process. FWA rather than the courts would deal with unlawful termination claims.
Kevin 07: Ten key conditions will be ‘protected by law’ and ten more in awards
The national WorkChoices system covering constitutional corporations only guarantees five minimum conditions – minimum wages, annual leave, personal/carers leave, parental leave, and maximum ordinary hours of work.
Workplace agreements made since the inception of WorkChoices on March 27th 2006 to 6th May 2007 were lawful if they contained these five standards. The ‘Fairness Test’ only prevents basic award conditions from being stripped away without compensation under workplace agreements lodged after 7th May 2007.
Kevin 07 proposes to legislate five more conditions to cover all workers in an attempt to restore balance, fairness and upward flexibility in bargaining. These national standards cover termination of employment and redundancy protection, long service leave, flexible work for parents, community service leave, public holidays and the provision of a standard fact sheet.
Kevin 07 had no choice but to do beef up the weak WorkChoices safety net once he committed himself to continuing the Liberal’s agenda to marginalise the award system.
Kevin 07 wants to simplify/modernise (code for rationalise and reduce) both the content and number of awards to ease business concerns about being strangled in bureaucratic red tape designed prior to the advent of global competition.
Awards will contain at least 10 allowable matters covering basic protections such as overtime and penalty rates, type of work performed, allowances, superannuation, leave, minimum wages and classifications, annualised salaries, meal breaks, and dispute resolution.
Paradoxically, Kevin 07 must make new statutory employment standards (government laws) to fill the gaps created by eroding the award safety net and ensure workers don’t lose basic entitlements in the bargaining process.
Kevin 07: A genuine simple, national industrial relations system
Whereas WorkChoices covers some 70-80% of workers nationwide employed in constitutional corporations and leaves the remainder in their respective state systems, Kevin07 pledges to create a harmonised national industrial relations system for all workers (except for public sector and local government staff). Kevin 07 would retain the national WorkChoices system and seek to extend its coverage to unincorporated businesses through co-operation with the states