The Guardian 25 June, 2008
Rudd’s new Employment Standards:
Tinkering with the edges
Anna Pha
Last week Deputy Prime Minister Julia Gillard released details of the federal government’s proposed new National Employment Standards (NES) — the Rudd government’s "safety net" for workers employed under the federal industrial relations system. The Australian Industrial Relations Commission is presently reviewing all awards and preparing new, rationalised system of industry awards which must meet the NES’s minimum standards.
Earlier in the year the Rudd government took to Parliament a bill to phase out Australian Workplace Agreements (AWAs) — the individual work contracts introduced by the former Howard government. In addition to the abolition of AWAs and the introduction of the NES, the government has still to release the main body of its industrial relations reforms that deal with such matters as collective bargaining, trade union rights, penal provisions, etc.
Under the former Howard government, awards were stripped back to the barest of minimum conditions and basically frozen. Howard also brought in new laws specifying a set of five minimum conditions on matters such as annual leave, carers’ leave, etc. The use of federal legislation to set minimum standards under corporations law was a new approach. These legislated conditions provided a "Safety net" for workers who were forced onto non-union collective agreements and individual contracts.
The content of the NES is a slight improvement on the Howard government’s five minimum standards, but in no way is adequate as a safety net. The new awards will be able to expand on the new ten minimum NES conditions, by adding specific details applicable to a particular industry. To what extent this will occur is unknown.
As ACTU Secretary Jeff Lawrence pointed out, "… it is important to remember that much of Work Choices is still in operation while the Rudd Government’s main set of new IR laws has yet to be introduced into Parliament."
NES 10 minimum provisions
Maximum weekly hours — maximum ordinary hours per week is 38 plus "reasonable additional hours" which the employer may "request or require". Averaging of hours may be permitted over a certain period.
Requests for flexible working arrangements — an employee with a pre-school age family may make a request in writing for more flexible hours or part-time work. This right to request only kicks in after 12 months employment. The employer may refuse "only on reasonable business grounds".
Parental leave — an employee is entitled to 12 months parental leave or more under specific conditions spelt out in the NES after completion of at least 12 months employment.
Annual leave — four weeks paid leave or five weeks for shift workers. Accrual is based on income from ordinary hours of work, excluding rates paid as bonuses or for overtime. It will also be possible in a new award to cash out leave instead of taking it — a very dangerous erosion of the fundamental right to some rest and recreation each year. Low paid workers in particular could be attracted to giving up some of their leave to make ends meet. Howard introduced the concept, limiting it to two of the four weeks, the NES make it possible for more leave to be cashed out.
Personal/carers leave and compassionate leave — little change here, but an award can include provisions for cashing out leave.
Community services leave — permits workers to be absent from work for voluntary emergency work, jury service, etc.
Long service leave — will accumulate as before at two calendar months per 10 years service.
Public holidays — are listed in the NES, they remain basically unchanged.
Notice of termination and redundancy pay — this specifies such things as how much notice must be given and specifies minimum redundancy payments based the wage rate for ordinary hours and years of service. This is the first time a statutory right to redundancy pay by an employer has been introduced.
Fair work information statement for employees — employers will be obliged to give each worker a statement containing information about NES, modern awards, agreement-making under the Act, the right to freedom of association and the role of Fair Work Australia — the government’s new body overseeing industrial relations.
For each of the above conditions of employment there is considerable detail which space (in this article) does not permit covering. The details are available on the Department of Education and Workplace Relations’ website.
For workers and their trade unions there are some worrying aspects to the NES, in particular those conditions and rights that have been omitted. The wording of the flexibility provisions appears to leave the door open for employers to refuse a request for part-time work. The definitions of such terms as "business reasons" or "needs of a workplace" are so general, that it would not take much of an imagination to get round them.
The maximum hours of work provisions provide employers with considerable flexibility to wipe out the minimum of 38 hours and avoid penalty rates. The NES does not specify maximum hours per week. Maybe it will be found in the new awards? Maybe not?
Maternity leave is unpaid leave, but it does offer some limited protection for a mother wishing to return to work.
Most of the provisions in the NES were also covered by the Howard government’s IR system. The Rudd government is adamant that they cannot be removed, as is possible under WorkChoices.
To what extent these provisions are binding on all workers in the federal system remains to be seen. The annual leave provisions are already undermined in the NES with the provision for paying out leave. The Minister, Julia Gillard was silent in her statements about how the NES would relate to collective agreements. Will there be some form of "no disadvantage" test as under the previous Labor government?
The new awards, which will be stripped back to 10 allowable matters, will not apply to workers covered by an enterprise agreement, or those who earn more than $100,000 per annum.
The NES will come into operation on January 1, 2010. An earlier draft was circulated in February this year for discussion. Employer bodies have had a considerable input into the process and seem to be quite satisfied with the outcomes.
As with the earlier draft, trade unions are overlooked. The language is in terms of employees and employers.
The NES is one component of Labor’s IR system, it tinkers with the edges of WorkChoices which unfortunately largely remains intact.