The Guardian 3 October, 2007
WorkChoices:
the lies and exploitation laid bare
Anna Pha
It was another painfully embarrassing week for the Howard Government, with the revelation that 25,000 AWAs (individual contracts) and collective agreements had failed to pass the government’s "fairness test". The director of the government’s own Workplace Authority, Barbara Bennett, took the decision to reject them. Then, a University of Sydney study of 8,343 employees found that people on AWAs on average earned $106.40 less than workers on collective agreements.
Employers are fuming; thousands of them have been given 14 days in which to resubmit their agreements with more detail or to amend them to comply with the "new fairness test".
The government has spent millions of dollars advertising on how it is protecting workers. A number of these ads featured Bennett, attempting to counter ACTU claims and workers’ real life experiences under WorkChoices.
The amount of red tape and changes in the rules have stunned employers, especially those running small businesses. The "fairness test" is unfair as far as they are concerned. When WorkChoices was introduced there was no intention or suggestion that AWAs would be subjected to scrutiny or really have to meet legal requirements. Their contents were confidential.
When WorkChoices was introduced the government’s ads and glossy publications promised workers that penalty rates; loadings for working overtime or shift work; rest breaks; annual leave loadings; public holidays and entitlements to payments for such days; and certain allowances and bonuses were "protected award conditions": that these award conditions were "protected by law" when workers were covered by a collective agreements or AWAs.
Under the legislation they were protected by law unless the AWA or collective agreement specifically amended them or there was a clause saying they did not apply. By including such a clause, employers could delete them by law. And that is what thousands of employers did.
Longer hours, less pay
They removed penalty rates, treated public holidays as ordinary working days, reduced or cut out the annual leave loading and took away other "protected award conditions". Employers increased working hours, reduced wages, casualised their workforces and set about rolling back more than a century of hard won working conditions that had been consolidated in the old awards. The Sydney study found that Australians have some of the longest working hours in the industrialised world. Miners work on average 55 hours per week and more than 20 percent of the workforce work 50 hours or more per week!
Employers used WorkChoices to stand over job applicants when they presented an AWA to be signed. The only choice was sign or no job. The removal of the unfair dismissal laws and massive penalties for industrial action gave employers greater confidence to attack wages and working conditions. After all, that was the purpose of the legislation — to create an environment where employers could lay into workers and trade unions.
In workplaces where unions were in a position to negotiate enterprise agreements the outcome for workers was much better — many obtained wage rises and held onto most of their conditions. This latest study confirms the importance of collective bargaining.
The Howard Government’s laws wiped the "no disadvantage test" (under which workers were to be no worse off), the Office of Employment Advocate (OEA) was no longer required to check AWAs to see if they met legal requirements (e.g. the five legislated minimum conditions). Its job was to file them. As soon as an employer lodged an AWA with the OEA it became enforceable and it was filed.
Compliance with the law became the responsibility of the new Office of Workplace Services. The OWS could follow up on breaches of the law, and relied heavily on complaints from workers and trade unions or employers. The OWS had means of checking the content of AWAs and agreements when they were lodged. In other words, the system was designed so that employers could get away with almost anything.
So it is not surprising that after a few employers had tested the water, the flood gates opened with lower paid and less skilled, non-unionised workers taking the brunt of an employer offensive on trade unions, wages and working conditions.
The media had a field day, with horror story after horror story hitting the headlines. Howard and his government were sliding backwards in opinion polls, everything that the ACTU had warned of had come true, and WorkChoices was identified as a key election issue that was damaging the government’s electoral prospects. The government had to do something.
In a classic Howard knee-jerk reaction, the "fairness test" was announced on May 3. It came into force on May 7, but the legislation was not passed until June 21 and the policy guidelines for employers (explaining what it means) were not available until July 25.
The term WorkChoices was dropped from the government’s vocabulary, the OWS was renamed as the Workplace Ombudsman and the OEA became the Workplace Authority.
Between May 7 and July 25 there was a vacuum with nobody really sure what was required. During that period more than 80,000 workplace agreements (AWAs and collective) were lodged with the Workplace Authority.
Of the 123,100 agreements lodged between May 7 and August 31, 44,751 were sent back to employers for more detail or rectification. They were given 14 days. Twenty-five thousand of these have not been resubmitted, and so technically are not in operation. Thousands of workers are owed back pay.
The Workplace Authority has a backlog of over 110,000 agreements to check against the "fairness test", and this number is rising every day. The situation is, as one media commentator described it, "a shmozzel". Many employers are angry that their AWAs are being looked at. This was to be a simpler, deregulated system that gave employers the opportunity to wipe out award conditions.
The fairness test is a half-baked attempt to cover up the lies about "protected award conditions" being protected by law. The new test applies to all collective agreements and to AWAs where the pay is less than $75,000 per annum. Employers are still free to remove or reduce "protected by law" conditions as long as there is some form of compensation. For example, the removal of penalty rates could be compensated for with a higher wage or in non-monetary terms such as changes in hours of work to suit a worker’s family commitments or study.
The new test is not even as strong as the old "no disadvantage test", and is highly subjective and unworkable in practice. There are more than one million AWAs and workplace agreements in operation and the number is on the rise. The test does not apply to AWAs and agreements reached prior to May 7 — there are over 1.2 million of them — and no one is going to look to see what horrors they contain.
There is absolutely no way that this situation can continue for long beyond the elections. This latest political exercise is proving to be a futile exercise that has not fooled anyone.