“Decent Work – Decent Lives: Line of Decency and the Fair Work Act”

United Voice Submission to the Fair Work Act Review Panel, on theFair Work Act 2009

Authorised byLouise Tarrant,National Secretary, United Voice

303 Cleveland Street

Redfern NSW 2016

Phone: 8024 3000

Email:

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Executive Summary

In making our submission we direct the Review Panel’s attention to a report given by the Director-General of the International Labour Organisation (ILO) on decent work:

The goal of decent work is best expressed through the eyes of the people. It is about your job and future prospects; about your working conditions; about balancing work and family life... It is about gender equality, equal recognition… [it is about] receiving a fair share of the wealth that you have to create and not being discriminated against; it is about having a voice in your workplace and community… And everywhere, and for everybody, decent work is about securing human dignity… [Decent work deficit] is the absence of sufficient employment opportunities, inadequate social protection, the denial of rights and work and shortcomings in social dialogue. It is a measure of the gap between the world we work in and the hopes that people have for a better life[1].

The regulation of work through our industrial relations machinery is fundamentally about “decent work” – from the determination of a living wage, to occupational health and safety, to job security, to equal pay for work of equal value, and to paid leave arrangements. The goal of decent work should be achievable by all workers in Australia – including workers that are considered vulnerable. The provision of “decent work” as envisaged by the ILO should form an explicit part of this review, as the basis of the Fair Work Act is fairness.

The reason we raise the issue of decent work is that vulnerable workers, many of whom are our members, are disadvantaged by the Fair Work Act 2009. Theyare unable to achieve the goal of decent work and share in Australia’s economic prosperity. We will be providing evidence of how the Act affects our members in this way, as well as providing broader submissions about the Act.

The Act covers a majority of workers employed in Australia. Given this level of coverage, United Voice believes that the system of employment regulation needs to be reframed to include the obligation of decent work.That is, the employment relationship needs to viewed as a social relation, as human labour is fundamentally unique and different from the commodities used to create goods and services. The employment relationship needs to be redefined in terms of providing decent work, and retaining the implied social contract of equity and fairness. It is from the foundation of fairness that productivity and flexibility arise.

Recommendations:

  1. To this end, United Voice recommends that Fair Work Australia investigate, develop and implement a suite of rights for vulnerable workers, recognising the power differentials and difficulties that exist to gain better conditions at work. In undertaking this work, consultation will be undertaken with registered organisations of employees (including United Voice), community organisations, and other related organisations, with the prime focus on increasing fairness, and increasing the capacity to organise and bargain in the workplace, and across the industry of these workers.

Safety Net and Individual Flexibility Agreements (IFAs)

  1. That the FWA Minimum Wage Panel receive ongoing funding to maintain a range of relevant, regular, and consistent primary data in relation to the needs of the low paid to inform the Panel in its determination for the minimum wage and safety net adjustment. That this information be available to the public.
  2. That the Minimum Wage Panel, as part of its decision, includes a consideration of the special needsof part-time and casual workers.
  3. That the National Employment Standards include provisions for conversion of casuals to permanent ongoing employment, and increasethe range of situations in which an employee can request flexible work.
  4. That FWA have a role overseeing and regulating IFAs, ensuring that the obligation for employees not to be left worse off can be better enforced.

Unfair Dismissal

  1. Scheduling of unfair dismissal conferences and hearings should take into account the availability of all parties. To ensure ‘a fair go all round’, FWA must extend procedural fairness to all parties in scheduling conferences and hearings, extensions and adjournments. Procedural fairness needs to take place and be part of these decisions.
  2. That the employer should be required to file Form 3 at least seven days prior to an unfair dismissal conference.
  3. That the time limit for unfair dismissal applications be increased to at least 21 days.
  4. In order to clarify what constitutes a genuine redundancy in relation to unfair dismissal proceedings, that the provisions make clear that the primary test for “meaning of genuine redundancy” (clause 389) will be used.

Migrant Workers

  1. That there be the introduction of an immigration inspectorate into the Office of the Fair Work Ombudsman to investigate breaches of the Fair Work Act pertaining to businesses employing foreign workers. The immigration inspectorate should be able to operate independently to investigate, prosecute and sanction an employer with a criminal or civil penalty.
  2. That there be ‘whistleblower’ protections for foreign workers in acknowledgement that without such protections the power imbalance between employers and workers will render workers silent even if the immigration inspectorate is created.
  3. That there be adequate enforcement of employer breaches to promote community confidence in the immigration inspectorate.
  4. That there be improved access for unions to workplaces to work with foreign workers to prevent the breach of visa conditions. This would include allowing the Minister to appoint the National Secretary (or equivalent) of a registered trade union as an inspector for the purposes of the Act.

General Protections

  1. That unfair dismissal and general protections applications are able to be taken out concurrently and dealt with by the appropriate tribunal at the same time.
  2. That a less costly avenue for general protections claims be considered and acted on to ensure that vulnerable workers are able to seek relief on matters as a result of contraventions of the general protections without an unfair financial burden to pursue the matter.
  3. That employees are able to invoke the general protection provisions to challenge their termination without a time limit on making an application.

Sham Contracting and Change of Contract

  1. That the Act includes a definition of sham contracting. As part of the remedies for cases successfully prosecuted, that the worker may be converted to ongoing full time or part time employment.
  2. That the transmission of business provisions provide for change of contract.

Union Rights and representation

  1. That the model dispute resolution procedures and/or dictionary contain a definition for ‘representative’ that reflects the right of an employee to be represented by a registered organisation of employees. And that clause 387 (d) includes the term ‘representative’.
  2. That the Act recognises the role of delegates in the workplace.

Enterprise Bargaining and Vulnerable Workers, and Industrial Action

  1. That FWA develop and implement Industry Councils in specific industries and sectors where there is a history of low pay and low engagement in enterprise bargaining.
  2. That clause 471 (5) in defining the industrial action period apply to, in each instance, the total duration of industrial action within that day.
  3. That there be no time limit in which to take protected industrial action after a ballot has been declared in favour of taking specific forms of industrial action.
  4. That the obligations to give notice of taking protected industrial action be the same for employees and employers.

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About United Voice

United Voice is a union of 120,000 workers organising to win better jobs, stronger communities, a fairer society and a sustainable future. The majority of United Voice members are women, and members are generally employed on a casual or part-time basis. United Voice members come from culturally and linguistically diverse backgrounds, and work in industries including aged care, health care, early childhood education and care, school education, cleaning, security, hospitality, and manufacturing. United Voice members are united by their belief in the dignity of workers,the right to fair and just treatment in the workplace, and fair and just access to wealth, security and a voice in our community.

Introduction and an historical overview of the Fair Work Act 2009

United Voice welcomes the Minister for Employment and Workplace Relations undertaking the post-implementation review of the effectiveness and efficacy of the Fair Work Act 2009 (the Act). We welcome the opportunity to submit written comments on how the Act has fared for members of United Voice, noting our members work largely in sectors that receive award/slightly above award payments, and largely work part-time or casual: our members are vulnerable workers. United Voicestrongly supports the principles that workplace relations should ensure the dignity of workers, the right to fair and just treatment in the workplace, and fair and just access to wealth, security and a voice in our workplaces and community.These principles will underpin the feedback that United Voice makes on the effectiveness and efficacy of the Act as it pertains to our members.

The objects of the Act can be defined around the poles of fairness, productivity and flexibility. According to the Act[2]:

  • Fairness includes: minimum enforceable safety net; statutory individual employment arrangements do not undermine the safety net; balancing work and family; freedom of association; free from discrimination; clear procedures to resolve grievances and disputes; and sharing in Australia’s economic prosperity.
  • Productivity includes: increasing workplace productivity; and use of enterprise bargaining.
  • Flexibility includes: business flexibility; and employee flexibility.

The objects of the Act recognise the importance of work at an individual level, and within the broader sphere of Australia’s society and the economy, to promote social inclusion and economic prosperity and ultimately recognise the importance of fairness. The legislation may have fairness as its intent however it is the enactment where there is a rupture for our members.

This Review is focussed on the Act and its impact in the workplace, and society. It is also helpful to remember that fairness has largely been fundamental to development of industrial relations in Australia. In the Harvester[3] decision Higgins understood “fair” as a social relation, and as determined by the mode in which an agreement has been obtained. The issue of decency is in the determination of “fair and reasonable” wages, and implied in “The Excise Tariff Standard for Time-Work” as a process trying to provide a more secure form of employment for workers overall, including those who did not fit within the classifiable systems of work that existed at the time. Further, to Higgins’ decision, human labour requires an employment standard “appropriate to the normal needs of the average employee, regarded as a human being …”[4] Higgins’ explicitly situates human labour as having a unique place in industry, and in the employment relation, as the determination of wages (and we would also argue conditions) should not solely and ultimately be left up to the “higgling of the market”[5]. These foundations of Australian industrial relations framework have for the most part been reinforced through the different iterations of federal and state workplace legislation.

The ideological underpinnings of Australian industrial relations legislation as discussed through the Harvester decision resonates within the International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work[6], and the ILO’s decent work agenda. Australia ratified 7 of the ILO fundamental conventions, and has incorporated aspects of these fundamental conventions in the Act. The opening statement of the Declaration on Fundamental Principles and Rights at Work indicate that social progress and economic growth are viewed as complementary. Further, “the guarantee of fundamental principles and rights at work is of particular significance in that it enables the persons concerned, to claim freely and on the basis of equality of opportunity, their fair share of the wealth which they have helped to generate, and to achieve fully their human potential”[7]. These principles need to be afforded to all workers in Australia, including vulnerable workers. In this way, the efficacy of these fundamental principles and rights that are given legislative effect in the Act also need to be measured against their implementation at work and broader society.

The use of the section 51(XX), the corporations power, was used to implement close to a unitary system of industrial law in Australia[8][9]. This does not mean that labour has lost its unique and different place in the process of formal industry. United Voice contends that the employment contract, a social contract, under the Act maintains that human labour is not a commodity in the way electricity, tomatoes, stationery, and other production inputs are conceived.

There have been massive changes to federal industrial relations legislation since the introduction of enterprise bargaining in 1991. With the deleterious effects of the WorkChoices amendments to the Workplace Relations Act 1996 on workers’ rights, United Voice is pleased to see the removal of key planks of that legislation. However we do not believe that the Fair Work Act goes far enough to recognise the importance of vulnerable workers, and the specific needs of our members in ensuring that decent work and workplace rights, with all that entails, coexist such that the economic prosperity of Australia is able to be better shared.

Given the foundation of fairnesswithin the Act, United Voice makes its submission and recommendations from the basis of fairness. In the workplace fairness for workers is determined by the capacity to organise and the capacity to bargain. Further, United Voice recognises that the capacity to organise and capacity to bargain are different, especially in the case of vulnerable workers.

Vulnerable Workers and the Segmented Labour Market

United Voice recognises in the construction of the Act that there is an implicit acknowledgement of the relative power differentials that exist between and within industries/sectors, employers, and workers and their representative organisations. This phenomenon of the relative power differentials can be broadly described as the segmentationof the labour market, whether these differentials have traditionally existed or are recent trends.

Segmented labour markets recognise that there is a different ability to bargain depending on the perception of value and reward for work performed. Utilising a dual labour market segmentation theory, this recognises that there are jobs and occupations that are socially and economically valued, and rewarded differently[10] than other types of occupations and industries – a “primary” segment for more socially desirable, valued and rewarded jobs and occupations, and a “secondary” segment considered the periphery of the labour market with less socially desirable, valued and rewarded jobs and occupations. Given the difference in value and reward for different occupations and industries, the resultant power differentials affect the wages and conditions of workers. There are greater difficulties to improving the conditions that currently exist in what is notionally called “secondary” labour markets.

United Voice represents members who would work in what is notionally called the secondary segment of the labour market, despiteour members having similar education and training requirements, and broadly similar work requirements in terms of level of supervision; task level; and, judgement, independence and problem solving[11] to workers in the notional primary segment; and we would also argue they perform jobs of both economic and social significance.The jobs that our members work in can be broadly characterised by:

  • Low wages (wages that are largely at the minimum wage/modern award wage level; where enterprise bargaining exists it is about 2-5% above the minimum wage/modern award level)
  • Internal labour markets are not well developed to provide a clear career/promotion pathway that recognises improved skill and education with commensurate rises in pay
  • Job allocation and hiring/firing decisions are largely management controlled
  • Working conditions largely reflect the industry modern award conditions
  • High labour turnover of the workforce

United Voice is working with members through our industry campaigns to create decent jobs. However in doing this the Actneeds to better assist workers legitimate aspirations and activities toward creating fair, sustainable and decent jobs in the industries in which our members work, and ensuring that the economic prosperity of Australia is shared by all.

Recommendation:

  1. To this end, United Voice recommends that Fair Work Australia investigate, develop and implement a suite of rights for vulnerable workers, recognising the power differentials and difficulties that exist to gain better conditions at work. In undertaking this work, consultation will be undertaken with registered organisations of employees (including United Voice), community organisations, and other related organisations, with the prime focus on increasing fairness, and increasing the capacity to organise and bargain in the workplace, and across the industry of these workers.

The United Voice submission will focus on the following themes:

  • Fairness
  • Safety Net
  • Individual Flexibility Agreements
  • Unfair Dismissal
  • Migrant Workers
  • General Protections
  • Sham Contracting
  • Capacity to organise, and be represented and heard in the workplace, industry and society
  • Union rights and representation
  • Right to representation at work, the industry, and the economy
  • Capacity to bargain and share in the economic and social prosperity of Australia
  • International Obligations and Collective Bargaining
  • Enterprise Bargaining and Vulnerable Workers
  • Issues in Enterprise Bargaining
  • Industrial Action
  • FWA’s dispute settling powers

Fairness