Additional Comments by the Australian Greens
The Australian Greens support
this Bill as a first step in creating a fair industrial relations system after
the failed experiment of Work Choices. We support the comments of the majority
report on the affects of AWAs. We do, however, continue to have reservations
about the Government’s approach to industrial relations reform believing that
it needs to go further. We also believe there are a number of amendments that
should be made to this Bill to improve the protection of employees.
This Bill has two
long term impacts: the eventual end of statutory individual agreements and
award modernisation. The bulk of the bill is then concerned with transitional
matters. We wish to comment firstly on the long term impacts of the Bill on
Australia's industrial relations system before turning to the provisions of the
Bill and recommendations for amendments.
Statutory Individual Agreements
The Australian Greens have never
supported statutory individual agreements including pre and post Work Choices
AWAs. There is sufficient, satisfactory and incontestable evidence from a
number of academic reports as well as submissions made to this Inquiry that
AWAs have been used to lower the wages and conditions of employees, particularly
the most vulnerable workers in our community.
However, our objection to
statutory individual agreements is not merely that they can be used to exploit
employees. The Australian Greens also object to statutory individual agreements
because they restrict freedom of association and undermine collective
bargaining. Employees cannot exercise genuine choice to collectively bargain
when statutory individual agreements exist.
Our objections on this point are
summed by Michele O'Neill from the Textile, Footwear and Clothing Union in her
evidence to the Inquiry speaking about ITEAs:
"The
other aspect of concern with ITEAs is what it means in terms of the collective
rights of those workers. If you have a workplace where some workers are on
ITEAs and others are trying to bargain to improve their conditions in a
collective agreement then of course, if you are locked out of that system, you
are not only on a lower set of conditions but you are actually denied effective
bargaining rights as well. You could easily have a position where some workers
are paid a lesser wage and have fewer conditions for doing identical jobs to
workers that they may be working alongside in a textile, clothing or footwear
factory. We think this is an unacceptable consequence. These are not high-paid
workers, and it should be the case that workers in Australia are
able to participate in a collective bargaining process if it is their desire.
They should not be locked out of that by virtue of having been forced onto an
ITEA at the point of employment."[1]
The right to collectively
bargain is a fundamental right recognised as an international labour standard.
It is about addressing the underlying imbalance in bargaining power between
employers and employees. Statutory individual agreements shift that balance
power firmly into the hands of employers and have no place in Australia's
industrial relations system. We welcome the Government's policy commitment to
introduce a system of collective bargaining that requires employers to engage
if their employees want to bargain collectively.
Common law agreements which are
underpinned by a relevant award or collective agreement are appropriate
individual instruments. One issue that was raised during the course of the
Inquiry was the need to provide efficient and effective dispute resolution for
common law agreements, outside of the common law court system. Specific
provisions in both the South Australian and Western Australian industrial
relations laws were mentioned as examples of where the industrial relations
commission or court in those states have jurisdiction to resolve disputes from
common law contracts.[2]
We would urge the Government
to consider such a jurisdiction for their new Fair Work Australia
in respect of the substantive industrial relations changes we expect to see
later in the year.
The Award system
The return of awards as part of
the safety net is very welcome. Awards are an essential part of the safety net.
There remains a significant section of the workforce that are award-reliant. These
workers are mostly women and low paid. A strong award system is vital to
ensuring these workers are treated fairly.
The Australian Greens are,
however, deeply concerned about how much of the Work Choices legislation the
Government is retaining in its "Forward with Fairness" policy,
including the abandonment of conciliation and arbitration and a dynamic award
system. Dr John Buchanan in evidence to this Inquiry referred to both the
strengths and weakness of the award system calling awards "Australia's greatest
contribution to Western civilisation" as well as "appalling documents
to work with".[3]
There can be no question that
awards today need to be updated. Many awards do not reflect contemporary work
practices or standards but the Australian Greens are concerned that the process
outlined in the Bill and the Government's "Forward with Fairness"
policy will result in static awards which are hostage to the Government of the
day and are unable to be effectively varied in response to changes in the
nature of the workforce without specific government direction. We are concerned
with the limited number of matters to be considered, the limited process for
variations and overall with underlying change in nature of the award system.
The Government is accepting in large
part the fundamental shift made by the Howard Government by abandoning
conciliation and arbitration and the role of worker and employer
representatives in that system. Justice Kirby in his dissenting judgement in
the decision on the constitutionality of Work Choices discussed the move from
the conciliation and arbitration power to the corporations power. In a comment
we agree with, he said
“The
applicable grant of power imported a safeguard, restriction or qualification
protective of all those involved in collective industrial bargaining: employer
and worker alike. It provided an ultimate constitutional guarantee of fairness
and reasonableness in the operation of any federal law with respect to
industrial disputes, including for the economically weak and vulnerable. It
afforded machinery that was specific to the concerns of the parties, relatively
decentralised in operation and focused on the public interest in a way that
laws with respect to constitutional corporations made in the Federal Parliament
need not be. These values profoundly influenced the nature and aspirations of
Australian society, deriving as they did from a deep-seated constitutional
prescription.”[4]
The Greens believe we are losing
something very important by turning away from these ideals.
A criticism made of the Work
Choices legislation is that it removed the capacity of the AIRC to hear test
cases on contemporary community standards in workplaces. These "test
cases" as well as the awards system in the past have given Australian workers
conditions such as:
- hours of work provisions,
- the principle of equal pay for
equal work,
- the regulation of excessive
overtime,
- the introduction of leave such as
bereavement and compassionate leave,
- redundancy provisions; and
- unfair dismissal protections.
We are concerned that the new
modernised award system is removing the ability of stakeholders in the
industrial relations system to bring such matters before an independent
tribunal. Workplaces and our society will not remain static and we need to
ensure there is sufficient ability in the new system to respond to changing
circumstances, for example equal pay. In light of these concerns we believe
awards must be reviewed regularly with appropriate mechanisms for the
involvement of relevant stakeholders in the industrial relations system.
We also have concerns about the
new “flexibility clauses” to be included in all modern awards as well as
collective agreements. The devil is of course in the detail and we will not see
the actual award flexibility clauses until they are drafted by the AIRC.
However, as a matter of principle it is a concern that employees could
essentially bargain away on an individual basis award conditions through these
flexibility clauses. While we recognise that it is the Government's intention
that no employee be worse off and that these side individual agreements are
subject to a no-disadvantage test, the experience of AWAs would suggest
safeguards will be needed to ensure that particularly vulnerable workers are
not exploited.
While we recognise the Bill deals
primarily with the first phase of modernising awards, we are concerned about
how awards remain relevant into the future. In this sense we agree with Dr
Buchanan that the Government should be thinking about an end point that is 'not
the modernised awards once and for all but what is a sustainable process for a
stable and relevant IR system.'[5]
We urge the Government to ensure a fair, robust and relevant award system
without throwing away the strengths of the award system under conciliation and
arbitration.
Other matters
One of the key concerns about
the changes to industrial relations law in the last few years has been not
necessarily the particular issues of AWAs, unfair dismissal laws, restrictions
on right of entry or industrial action in themselves but also the combined
effect of these measures. This was a point made by Michele O'Neill in the
course of this Inquiry when she said:
"We
are concerned about these eight areas not just because of each of their
isolated effects but actually because of the combined effect of a number of
these issues on workers. What I mean by that is that it is the intersection of
these provisions that really has the most dramatic effect of workers in our
industry. The provisions have the combined effect of reducing workers’
bargaining power and reducing workers’ capacity to be effectively represented
by a union, the removal consequently of choice out of the system for these
workers and the resulting loss of rights and conditions as well as, in fact, in
many cases, a green light to exploitation."[6]
The impact of the intersection
of statutory individual agreements, restrictions on bargaining through issues
such as prohibited content rules, restrictions on rights of entry and the
removal of unfair dismissal protections is not limited to the textile and
clothing industry. These matters must also be dealt with to ensure a truly fair
industrial relations system.
The Australian Greens see no
reason why the Government cannot restore some of these important safeguards
immediately. We therefore recommend unfair dismissal protection for workers is
included in this Bill. Two years is a long time for vulnerable workers to fear
for their jobs.
Recommendation 1: That unfair
dismissal protection be restored to all employees.
Similarly, if it is ALP policy
to remove restrictions on what matters can form part of workplace agreements,
why not repeal the prohibited content provisions now? There is no justification
for the restrictive prohibited content rules of Work Choices and they should be
repealed as recommended by the Textile, Clothing and Footwear Union.[7]
Recommendation 2: That the
prohibited content provisions of the Act be repealed.
The Textile, Clothing and
Footwear Union also brought to the Committee's attention the issue of
restrictive right of entry laws and their relationship to not only effective
bargaining but effective protection and enforcement of workers wages and
conditions.[8]
The Australian Greens are on record as opposing the restrictions on
right of entry in the Work Choices laws and urge the Government to review their
position on keeping these restrictions in place.
There is a good reason why most
employer organisations are relatively happy with the Government's approach to
industrial relations. The Government is delivering a reduced and simplified
safety net (compared to the pre-Work Choices safety net) with flexibility built
in alongside severe restrictions on collectivism through retaining restricted
right of entry and industrial action provisions.
Another key issue raised by many
of the persons to appear before the Inquiry was the complexity of the
industrial relations laws. We join in urging the government to provide in their
substantive Bill a simpler set of laws.
The Bill
Workplace Agreements
The Australian Greens are not
convinced about the need for ITEAs. We believe the sooner statutory individual
agreements are no longer a part of Australia's industrial relations system the
better. The Inquiry heard evidence of unfair AWAs that will last for up to 5
years (if not longer). By unfair AWAs we are referring to AWAs that provide
lesser wages and conditions than either the relevant award or previous
arrangements. For example, the Committee heard from Qantas Valet workers[9]
about being pressured onto AWAs that provided less take home pay than previous
arrangements. We believe it is not acceptable to leave employees in such
circumstances. We were also concerned to hear about allegations of duress or
coercion in respect of AWAs made in the last few months.
Recommendation 3: That employees or
their representatives are able to request the Workplace Authority to determine
whether the employee's AWA would pass the no-disadvantage test and if not, for
the employee to be able to unilaterally terminate the AWA.
We are also concerned that AWAs
and ITEAs can remain in operation past their nominal expiry date. While we
appreciate employees will be able to unilaterally terminate these agreements
after their nominal expiry date, we would prefer to see a definite end to these
instruments. As the evidence to the Inquiry indicated, many employees use
template individual agreements so it should be no great exercise to create a
collective agreement.
Recommendation 4: That all AWAs and
ITEAs cease to operate on their nominal expiry dates.
We note that in the Bill there is a
specific provision prohibiting variations to AWAs except where variations are
to comply with the fairness test or a court order where the agreement contains
prohibited content or discriminatory provisions. We see no need for AWAs to be
varied at all. If an AWA fails the fairness test or contains content it should
not contain then it should just be void.
Recommendation 5: That AWAs not
able to be amended in any circumstances and are void if they fail the fairness
test or contain prohibited or discriminatory provisions.
A number of submissions queried
the distinction being made between agreement that came into operation on
lodgement or approval. We are not convinced that some agreements should come
into operation on lodgement. Ensuring that all agreements come into operation
on approval also means that the compensation provisions are no longer
necessary. Difficulties with delays in receiving approval should be dealt with
thorough appropriate resourcing of the Workplace Advocate.
Recommendation 6: That all
workplace agreements come into operation on approval.
A relatively minor but still
important issue for some workers relates to extending preserved state
agreements in the same way that the Bill preserved old federal agreements. We see no reason
why the Bill cannot be amended to allow for this provision.
Recommendation 7: That preserved
state agreements are also able to be extended by application to the AIRC.
We also have some concerns about
the no-disadvantage test. While providing significantly better protections than
the "fairness test", the no-disadvantage test could be improved in
relation to its accountability in particular through the provision of written reasons
and an appeal mechanism. These were concerns we raised about the "fairness
test" and they apply to this Bill equally.
Recommendation 8: That parties to
an agreement are able to request written reasons for a decision of the
Workplace Authority on the no-disadvantage test
Recommendation 9: That decisions of
the Workplace Authority applying the no-disadvantage test are reviewable by the
Federal Magistrates Court.
Another concern that we raised
in relation to the "fairness test" that has not been addressed in
this Bill is the deficiency in the dismissal protections where an agreement
fails the no-disadvantage test. Professor Stewart again raised with the
Committee the issues he raised last year in respect of similar provisions in
relation to the "Fairness Test".[10]
We agree with his comments that the protection against dismissal should be
expanded to include protection against other adverse consequences.
Recommendation 10: That section
346ZJ be amended to strengthen the protection against dismissal and other adverse
consequences in circumstances where an agreement fails the no-disadvantage
test.
It was also raised in a number
of submissions that the no-disadvantage test should require agreements to have
complied with the AFPCS and take into account any other relevant Commonwealths,
State or Territory laws that would have applied to the employee. This is a
suggestion that we agree with to ensure fairness in bargaining.
Recommendation 11: That the
no-disadvantage test be amended to include a reference to relevant
Commonwealth, State and Territory laws and that to pass the no-disadvantage
test agreements must comply with the AFPCS/NES.
Central to the no-disadvantage
test is the concept of a "designated award". We welcome the provision
that allows state awards to be "designated awards" which means fewer
employees will have no reference instrument. In circumstances where the
employer applies to the Workplace Authority for a designated award, we believe
employees should be notified by their employer.
Recommendation 12: That employees
are to be informed by their employer of applications for a designated award.
Award
Modernisation
Apart from our general concerns
about the award system expressed above, we believe a number of the issues
raised in the Inquiry have merit and should be considered by the Government.
Both employee and employer
representatives queried why state based differentials could not remain in
modernised awards where the AIRC considers it appropriate. The response that a
national system cannot have such differences is not adequate. Employees will
lose important conditions without an amendment on this issue.
Recommendation 13: That state based
differentials in awards are allowed where the AIRC considered it appropriate.
As mentioned above, the Australian
Greens are concerned about the limited number of matters that can be included
in awards. We note the submission of the ACTU highlighting that certain
industries have specific conditions outside the award matters listed in the
Bill that should be able to be included in modern awards. We agree that the
AIRC should have the discretion to include exceptional matters in awards.[11]
In this context we also note the comments of John Buchanan on trusting the AIRC
and their expertise on awards.[12]
Recommendation 14: That the AIRC
have discretion to include exceptional matters in modern awards.
A particular concern of the
Australian Greens is to ensure that all workers, outside those classes of
employees such as managerial employees, are covered by modern awards. When the
ability of parties to create new awards through applications to the industrial
commissions is lost it is incumbent on the Government to ensure all relevant
workers have the award safety net. It is not sufficient to include in the
request that the AIRC may extend coverage of awards. The evidence before
the Inquiry was that at least 10% of workers had no award coverage.[13]
Recommendation 15: That the modern
award system ensures all relevant employees are covered by an award.
The gender pay gap in Australia is
abysmal. While recent increases in the gender pay gap are linked to the
increased use of AWAs, pay equity was an issue before AWAs and will remain an
issue after AWAs are gone, unless pro-active measures are taken by the
Government.
Pay equity is essentially about
the value of work and the fact that "women's" work has been
historically undervalued. This undervaluing of work in female dominated
professions and occupations is reflected in the award rates of pay and
classifications. The award system is central to addressing pay equity. More
women are dependent on the award system for their actual wages and conditions.
If pay equity is not addressed in the award system then those women will
continue to receive pay significantly less than the value of their work.
The award modernisation scheme
as contained in the Bill risks consolidating pay inequities into new modern
awards unless pay equity considerations are part of the matters the AIRC is to
consider in making modern awards. At the very least we urge the Government to
ensure robust pay equity measures in the substantive Bill.
Recommendation 16: That equal pay
for work of equal value should be an object of Part 10A and that the AIRC
should be required to consider equal pay for work of equal value in creating
modern awards.
Outworkers
The Australian Greens are very
disappointed that the majority report is not recommending the Government uses
the opportunity presented by this Bill to remedy the deficiency in the protections for
outworkers identified by the Textile, Clothing and Footwear Union. We note that
DEEWR acknowledges the need for technical amendments to ensure outworker
protections are maintained.[14]
This is an issue that has cross-party support and is easily remedied. There is
no reason why a simple amendment could not be passed to clarify the necessary
protections for this vulnerable group of workers.
Recommendation 17: That sections
576K and 576U(e) are amended to ensure protection for outworkers.
Committee system
In the course of this Inquiry
genuine practical suggestions for improvements to this Bill were
presented to the Committee. We are dealing with very complex laws and
individuals and organisations took the time to read the Bill, identify issues
and suggest solutions. It is incumbent on us to listen and respond accordingly.
The committee system is designed to ensure appropriate review of Bills, to
ensure the Bills achieve what is desired and identify any potential problems
and solutions, particularly with the practical application of the provisions of
the Bill. We would have liked to have seen this reflected in the
recommendations of the Majority Report. We would hope that when the substantive
Bill on a new industrial relations system is before the Senate sufficient time
will be allowed for the committee to not only hold hearings but for suggested
improvement to be considered fully by the Government.
Rachel Siewert
Australian Greens
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