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'Thanks, but really, no thanks': Morrison's IR reform bill hurts our pandemic heroes

22nd February, 2021

An edited version of this post was published in the Sydney Morning Herald on 19 February 2021: New workplace law attacks long-held protections for employees.

(Photo credit: Alan Tennyson, Covid-19 ‘Alert Level 4’ highway sign ‘Essential Workers We Thank You’, Thorndon, Wellington, permitted use under Creative Commons license).

Just under a year ago, following the first COVID-19 lockdowns, Australians were celebrating the feats of our ‘essential workers’.

Highway billboards lauded the courage and resilience of teachers; supermarket, transport and warehouse workers; aged care and child care staff; cleaners; and of course those on the front line in health care.

As the pandemic wore on, we came to see more clearly that many of these workers are the most low-paid in our community – and the most likely to be engaged in insecure work.

But by the end of 2020, far from taking any steps to properly reward this previously invisible workforce – or make their jobs less precarious – the Morrison government did them over.

A six-month government-union-employer talkfest produced precious little consensus. Then, the Coalition introduced its Workplace Relations Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill into federal Parliament.

The underlying premise of the Bill is simple, but wrong: that the pandemic has delivered such a shock to the Australian economy, the only way out is to get rid of rules that currently stand in the way of employers running their workplaces as they like.

That is code for removing long-standing employee protections under the guise of ‘saving jobs’, and without businesses having to make the case that COVID-19 has hit them particularly badly.

Let’s take the most obvious example, already dumped by the Coalition last week. The Bill would have allowed businesses to get enterprise agreements approved by the Fair Work Commission that cut award wages and conditions, based on an ill-defined link to the pandemic’s impact on the enterprise. This involved suspending the ‘better off overall test’ (BOOT) that normally applies to safeguard employees against agreements that strip away award conditions without adequate compensation.

Even though the government has pulled back on this change, the Bill still includes provisions that will weaken both the BOOT and the minimal protections currently in place to ensure employees are fully informed about a proposed workplace agreement before they vote on it.

The Bill also extends the availability of special powers given to employers to vary an employee’s work location or duties, initially granted as part of the JobKeeper wage subsidy scheme. Instead, any employer covered by one of 12 awards will be able to use these flexibilities.

So, for example, a hospitality, fast-food or retail business could direct employees to perform different tasks or work at another site at their whim (without having to demonstrate any loss of turnover, as was required under the JobKeeper-related provisions).

These same employers will be able to reach ‘agreement’ with part-time employees on the working of additional hours, but without having to pay applicable overtime rates.

However, it is in the Bill’s provisions on casual employment that we can most see the government’s opportunism in latching onto the pandemic. To understand this, we need to take a step back.

In 2018 and again last year, the Federal Court up-ended what has become a common practice of many employers: engaging casual employees for long periods of time, so they are almost permanent but without the rights of permanent staff.

The court, in the Skene and Rossato cases, said where this has gone on long enough, the employee becomes entitled to annual leave, sick leave and other entitlements as well as the casual loading (usually around 25% on top of the hourly pay rate).

Business groups have been in uproar, demanding an end to this unjustified ‘double-dipping’. That’s one way of looking at it. A better way is to see the Federal Court’s decisions as shutting down the business rort of the ‘permanent casual’.

This is particularly egregious in labour hire: many agency casuals end up working alongside direct employees for years on end, on lower pay rates and waiting up late at night for a text confirming or cancelling a shift.

So what does the Bill say? It is quite devious, presenting the façade of adopting the Federal Court’s definition of a casual – someone who does not have a firm commitment from their employer to ongoing work, according to an agreed pattern of work.

But then the Bill adds other elements to the proposed casual definition, including how the work is described in the employment contract – thus preserving the power of employers to designate an employee as casual. The Bill also freezes the assessment of employment status (casual or not) as at the time the employment begins. A court could have no regard to how the employment evolves or changes over time.

All of this would return us to the position that prevailed before the Federal Court stepped in. Employers would have maximum power to engage and keep an employee as a casual, no matter how regular their shifts become or for how many years they are employed.

The Bill purports to require an employer to offer a regular casual employee the option of conversion to part-time or full-time after 12 months. However, employers can decide not to make the offer on wide and ambiguous ‘reasonable grounds’, and there is no effective dispute resolution process available if the employer decides against conversion.

What’s more, the Bill would retrospectively prevent employees who might be able to establish rights in the wake of the court rulings from gaining any compensation. A long-term casual claiming unpaid leave or other entitlements would have casual loading payments offset against such claims.

If passed into law, this Bill will only intensify insecure work and enable employers to push through reductions in wages and conditions in the name of ‘economic recovery’.

It is silent on major questions in workplace regulation, like how to shut down the gig economy’s contractor model which saw the deaths of five food delivery drivers in the final months of 2020.

All up, the Coalition’s Bill tells Australian workers: ‘thanks, but really, no thanks, for all your efforts in the pandemic’. Cross-bench senators need to tell the government: it’s just not on.

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