- by Anna Pha
- The Guardian
- Issue #1946
Photo: Anna Pha
Just days before Parliament rose for the summer break, the Coalition government tabled legislation with the aim of accelerating its anti-worker, anti-union agenda on behalf of employers. Industrial Relations Minister Christian Porter described the bill as “not ideologically based…” (Second Reading Speech). Quite to the contrary, it is all-out war against the working class.
The Fair Work Amendment (Supporting Australia’s Jobs Economic Recovery) Bill 2020 (SAJER bill), if passed, would achieve the same aims as the Howard government’s disastrous WorkChoices legislation that workers soundly responded to by changing the government. WorkChoices resulted in a massive wave of de-unionisation, slashing of wages and working conditions, loss of penalty rates, and paved the way for the acceleration of casualisation.
But there are differences between the bill and WorkChoices. This bill is far more sophisticated and deceptive in the way its provisions are couched. The bill maintains the language and structures of Labor’s Fair Work Act, while gutting key measures. There is no hook, like the term “WorkChoices,” for the trade unions and the community to use to campaign for its defeat.
Decline in EBAs
In recent years, there has been a decline in the number of enterprise bargaining agreements (EBAs) and workers covered by them. Today, only thirty-eight per cent of workers are covered by an EBA, twenty-one per cent are on an award (inferior terms and conditions to an EBA), and an alarming thirty-seven per cent have individual arrangements (SAER bill Memorandum of Understanding). The latter is in part the result of a decline in the rate of unionisation and increased use of labour hire, the gig economy, and other forms of insecure work. The remaining four per cent are owner-managers of incorporated enterprises.
There has also been an increase in the number of expired EBAs that continue to apply. Many of these expired EBAs fall below the conditions specified in modern awards, in particular minimum wage rates. Employers have been reluctant to sign new agreements which would cost them more and reduce profitability.
It is in this context that the government’s bill sets out to further deregulate the workforce and adopt “a more streamlined approval process” that would result in a less “forensic examination” of proposed agreements by the Fair Work Commission (FWC).
The IR Omnibus Bill, as it is commonly known, provides employers with incredible flexibility over wages and working conditions, including the undermining of modern awards, National Employment Standards (NES) and the better off overall test (BOOT) in enterprise agreements. The BOOT specifies that enterprise agreements must be better off overall than the relevant modern award.
A more honest name for the bill would be “Supporting Private Profit Growth.”
There are loopholes that allow the FWC to approve agreements well below the present statutory minimum in awards. It is designed to gut awards and kill off enterprise bargaining. With high unemployment and the precarious nature of so many jobs, there is little space for negotiating in many workplaces, and trade unions are in a relatively weak position to negotiate agreements. In non-unionised workplaces workers are left to the mercy of their bosses.
Voting in the dark
Prior to an employer applying for certification of an agreement, there must be a ballot of employees who will be covered. Under existing legislation, there are mandatory procedures that must be followed: the employer is required to “take all reasonable steps to ensure that relevant employees have access to the agreement, an appropriate explanation of its terms, and details of the voting process” (emphasis added).
The bill deletes the term “all” and weakens the rest of the provision so that it reads: “Employers take reasonable steps to ensure that the relevant employees are given fair and reasonable opportunity to decide whether or not to approve the agreement.”
The employer is seen to comply if employees have access to a copy of the written text of the agreement, and any “other material incorporated by reference in the agreement that is not publicly available.” So, workers are supposed to follow up references if they are publicly available and understand them!
If they are not in a trade union – today, around eighty-five percent of the workforce – they are left to their own devices.
Put simply: individual workers are unlikely to understand what they are to vote on without a trade union to guide them. They will be voting in the dark. If ever there were a reason to become a union member!
There are some vague provisions about explaining to “relevant employees in an appropriate manner, taking into account their particular circumstances and needs.” With a Fair Work Commission stacked with Coalition appointees, that could mean anything.
The term “relevant” is added, thus narrowing the eligibility requirements to vote. It excludes casuals who did not work during a specified period prior to the ballot.
The employer is also required to provide information on the time and place at which voting will occur and the voting method (e.g. postal, at the workplace).
Even with the existing mandatory steps replaced by looser requirements, there is a further “get-out-of-jail” card for employers. In the event an employer fails to meet the pre-approval requirements specified in the bill, the FWC may still approve the agreement if it is satisfied that the workers have been given a “fair and reasonable opportunity to decide whether or not to approve the agreement.” Whatever that means!
The ten National Employment Standards (NES) are minimum entitlements for workers that must be included in EBAs, excluding casuals. They cover various forms of paid leave, maximum working hours, termination notice provisions, redundancy pay, public holidays, and flexible work arrangements. Casuals are entitled to leave provisions, but unpaid. The bill removes the requirement that EBAs must include the NES, replacing it with a “model NES interaction term,” expressing the interaction between the EBA and the NES. The wording of this term is to be determined by regulation. This transfers the legislative power from the scrutiny and vote of Parliament to the Federal Executive Council which is composed of Coalition (government) Ministers.
The FWC is also bypassed, no longer able to determine whether an EBA includes the NES. At the same time, the requirement that the terms of the NES are met in an agreement is deleted. In other words, the so-called safety net of the NES no longer applies.
It remains to be seen what the model interaction regulation, determined by such undemocratic means, contains. Will it permit the complete overriding of the NES?
Past gains lost
The impact of these reforms would be devastating for workers who would be subjected to lower wages, poorer working conditions, the undermining of OH&S standards, increased casualisation, and the vulnerability and insecurity that comes with them.
For workers and the wider community, living standards would fall, and unemployment, poverty, and homelessness surge. At the same time, the share of wealth produced by workers and pocketed by big business would continue to rise, to even higher levels than the record share that exists at present. After all, that is the aim of the legislation.
This bill must be defeated. The campaign must start now, with the united forces of trade unions, community organisations, and individuals. Workers must again vote with their feet!
Next week: Part II, The casuals hoax.