The Guardian 9 November, 2005

Fat profits and choice for the boss
Low pay & sweatshop conditions for workers


WorkChoices Bill at a glance

While the Bill is complex, the intended outcome is simple: slash wages and working conditions, and life without unions. It sets down:

Bare minimum guarantee (5 provisions):

Misnamed as the "Fair Pay and Conditions Standard"

1. Minimum adult weekly wage rate $484.40 for 38 hours work.

Minimum rates for juniors, trainees, apprentices, piece work, award classification levels and casual loadings. These to be adjusted (up or down) by a low pay commission of political appointees the dishonestly named "Australian Fair Pay Commission".

2. Maximum ordinary hours of work 38 per week that can be averaged out over 12 months.

You could work 72 hours one week, 4 hours the next week. The government/employer Standard place no restrictions on span of hours, minimum or maximum number per day, number of consecutive days worked, nor does it oblige an employer to pay penalty rates for shift work, overtime or work on weekends, etc. "An employer may require an employee to work reasonable additional hours."

3. Annual leave 4 weeks with option to cash out 2 weeks.

One additional week for certain categories of shift workers.

4. Personal/carers leave: (including sick leave) 10 days per annum.

Sick leave is cumulative. Leave is cumulative and up to 10 days per annum can be used as carer's leave. Leave for casuals is unpaid. Two days paid compassionate leave possible and a further 2 days of unpaid carer's leave in the case of an unexpected emergency if leave is exhausted.

5. Parental leave (including maternal leave) 52 weeks unpaid.

This new Standard of 5 entitlements is the only "protection" that workers can be sure of. EVERYTHING ELSE is up for grabs by the employers.

Minimum wage based on profits, not needs of workers

Minimum wage rates adjusted up or down by misnamed Australian Fair Pay Commission of government-appointed business representatives. By law they must encourage increased productivity, low inflation and international competitiveness and protect the competitive position of young people in the labour market business speak for very low wages and even lower wages for young workers.

Awards stripped, merged, deleted

  • Removed from awards: notice of termination, jury service, long service leave, superannuation (minima covered by other legislation).

  • Award Review Taskforce to recommend on merger and deletion of awards, and formation of "simplified" (stripped) industry sector awards.

  • Allowable contents of existing awards to be frozen.

    No disadvantage" test abolished

  • Awards WILL NOT underpin AWAs or collective agreements.

  • It will be legal for workers on agreements or AWAs to be worse off than under the award. That is the aim of the legislation.

  • AWAs and collective non-union agreements override the award.

  • It will not be possible to be protected by an award if you are covered by an agreement or AWA.

    Awards allowable matters

  • The five provisions of the new minimum Standard (minimum wage, leave and ordinary hours)

  • Times within which ordinary hours are worked

  • Rest breaks

  • Notice periods and variations to working hours

  • Public holidays

  • Ceremonial leave

  • Allowances

  • Leave and other loadings for working

  • Loadings

  • Penalty rates

  • Redundancy pay for employers with 15 or more employees

  • Stand-down provisions

  • Dispute-settling procedures

  • Type of employment eg full-time, casual, regular part-time and shift work

    All awards must contain provisions permitting the employment of regular part-time workers.

    Not allowable in awards

  • Superannuation (fallback on legislated provisions)

  • Jury service (fallback on legislated provisions)

  • Notice of termination (fallback on legislated provisions)

  • Trade union leave and training

  • Paid union meetings

  • Bargaining fees

  • Restrictions on use of contractors, casuals, part-timers

  • Union membership a condition of employment

  • Mandatory application of agreement to sub-contractors

  • Future agreements to be union agreements

  • Exclusion of AWAs in workplace

  • Unfair dismissal remedies

  • Provision for industrial action during life of agreement

  • Skill-based career paths

  • Restrictions on apprentices and trainees

  • Union picnic days and so on

    Workplace Relations Minister may outlaw further conditions by regulation and bypass Parliament.

    Employers free to wipe entitlements

    (Union and non-union)

  • "Protected" industrial action may only take place after the nominal expiry date of a collective agreement. Secret ballot required before "protected" action is taken.

  • Then after 90 days of "negotiations", if no agreement is reached, employer may have agreement terminated. The five government-determined minima (Pay and Conditions Standard) then replace the old agreement, NOT the award. Employers can make a killing by not negotiating seriously with the union or workers and waiting for the five minimum entitlements to kick in.

    The outcome would depend on the strength of the union in that workplace, and the Government is introducing a number of serious measures to make an effective union presence as difficult as possible to achieve.

    Worker versus worker

    Employers can negotiate different agreements with small groups of workers or impose AWAs on individual workers, all doing the same work, within a workplace. They can sign new agreements or AWAs with individual workers already covered by a union agreement. The AWA overrides collective agreements and awards. The only requirement is that an AWA must meet the five minimum entitlements. They could lose almost everything that has been won over decades of struggle.

    Employers protected from industrial action

  • All industrial action during life of agreement outlawed.

  • Access to common law actions for "unprotected action" will be immediate.

  • Definition of industrial action by workers broadened.

  • Definition of industrial action by employers narrowed so that "acts by employers, other than lockouts, are not industrial action", eg sacking workers during a dispute.

  • Compulsory secret ballots before "protected" action can be taken.

  • Such action can only be taken after the expiry of an existing agreement.

  • "If a union makes an application for a ballot, only union members who are employees and who would be covered by the proposed agreement will be eligible to vote." If the union is also the bargaining agent for non-members, these non-members do not get to vote on whether to take action and cannot take lawful action if such action is endorsed (recipe for one out, some out).

  • Ballots conducted by Australian Electoral Commission and authorised private agents. Unions/workers foot 20 percent of cost the Australian Government the rest.

  • Australian Industrial Relations Commission (AIRC) may suspend action for up to three months or direct action cease at the request of the Workplace Relations Minister, the employer or any other person affected by the action (eg patient during nurses' action).

  • Provisions similar to state essential services legislation giving the Minister dictatorial powers to remove the "threat" such action poses.

  • All industrial action will be outlawed during the life of an agreement or AWA.

  • Only after the nominal expiry date of an agreement is it possible to take "protected" action and thus avoid massive damages costs and fines.

  • The imposition of long delays in the timing hits at the very essence of successful action and gives the boss weeks or months to prepare for the action, sack "the trouble makers" and intimidate individual workers into signing AWAs.

    Banned

    Multiple business agreements, pattern bargaining and agreements spanning workplaces which are used by trade unions to maintain uniformity of wages and conditions are banned.

    NOT Protected by Law

    The government claims that certain award entitlements will be protected in negotiating collective agreements and AWAs. They are:

  • Public holidays

  • Rest breaks (including meal breaks)

  • Annual leave loadings

  • Allowances

  • Penalty rates

  • Shift/overtime loadings

    These basic, fundamental conditions are NOT protected. They may be modified or omitted as long as the agreement or AWA makes specific mention of their omission or modification. If the agreement or AWA remains silent on them, only then do they apply. (State proclaimed public holidays apply, but not in regards to pay.)

    Employers can legally abolish all allowances, penalty rates, shift/overtime and annual leave loadings, rest breaks, union picnic days, etc. It will be legal to abolish restrictions on the span of the working day, minimum hours, maximum hours or continuous work without a meal break. The union can only negotiate for workers who have requested in writing to be represented by the union.

    Australian Workplace Agreements (AWAs): "Negotiated", in reality imposed, on a one-to-one basis. Refusal to sign is grounds to refuse to hire someone. Legislation provides numerous loopholes for employers to sack existing employees who refuse to sign AWA.

    Employer self-inspects AWA

    The employer provides the AWA, the worker signs it or no job. The AWA is lodged with Office of the Employment Advocate (OEA) along with statutory declaration by the employer that it was "negotiated in compliance with the law" and it becomes immediately binding. No inspection of the AWA by the OEA. The only legal requirement regarding contents is that they are not less than the five entitlements in the Pay and Conditions Standard. And it is left to the employer to check that standard has been met!

    AWAs operate for up to five years. Any changes need employer's agreement except for those required to conform with government's minimum standard.

    Existing EBAs

  • Enterprise bargaining agreements made before the new laws come into effect can be terminated in accordance with their own provisions and the old legislation. The fallback position is the government's minimum standard or possibly the award. The bill is not clear.

  • Employers can sign workers onto new collective agreements and AWAs at any time, even while they are covered by an EBA.

  • EBAs under the old law will be phased out and replaced by new collective agreements or AWAs or the minimum Standard.

    Compulsory dispute settling procedure (DSP)

    All awards must contain government-prescribed DSP. These DSPs will also apply to agreements and AWAs if alternative ones have not been provided.

    Unfair dismissal law

    Businesses with 100 or less employees exempt from unfair dismissal laws.

    In larger businesses, law applies after 6 months in job but worker can still be sacked if "operational requirements" are a factor.

    This opens the way for employers to clear out "troublemakers" (e.g. they join their union or insist on safe working conditions), turn over staff very rapidly, drive down wages and conditions, retain a junior workforce (on low, low wages) and harass and stand over workers for unpaid overtime, unsafe working conditions, etc.

    It can be used to force workers off awards and collective agreements and onto individual contracts, which override the other two.

    Unlawful dismissal

    In theory workers are protected by other legislation against dismissal because of union membership, political views, refusing to sign an AWA, race, sex, religion etc. In practice employers will be able to arbitrarily dismiss workers. Any unlawfully dismissed worker can pursue his or her case in the courts with possibly $4,000 government assistance for legal advice!

    "Guest" labour

    If workers or social security recipients resist slave labour conditions, the employers plan to import cheap skilled labour on special temporary visas, with the visa made conditional on the job thus giving employers a licence to brutally exploit foreign workers and strengthening their hand to stand over workers. This has been done in the building and construction industry and the latest government proposal is for "au pair girls" to help "meet the childcare needs of middle class families".

    Boss negotiates agreement with boss

    For new businesses, projects and undertakings that do not yet have employees the company can "negotiate" with itself an agreement that will be binding on its workforce for 12 months!! Howard gives a new meaning to the word "agreement".

    This is the employer and government aim for every workplace straight out dictatorship of wages and working conditions return to the master/servant days of the 19th Century.

    This is hardly an attractive alternative as wage rates in existing awards are minimum rates and these will be frozen. They will NOT be changed in line with any changes in the minimum wage. The aim is to force workers off awards onto AWAs or collective agreements.

    Trade unions not welcome

  • Right of entry of union officials severely restricted.

  • Union must have signed invitation from union member in workplace which will be shown to employer.

  • Official with permit may enter workplace to investigate suspected breach of the Workplace Relations Act and to hold discussions with workers.

  • Union officials required to pass a "fit and proper person" test before being granted an entry permit (previous breaches of Act or convictions on picket line would disqualify).

  • No right of entry for discussion purposes where all employees are on AWAs.

  • Only allowed to investigate a breach of AWA if the worker party to it provides written consent.

  • Union officials must provide employer in advance written particulars of breach that they wish to investigate.

  • Union officials can only access records of union members when investigating a breach.

  • Employer can specify location of meeting (eg within earshot of manager's office) and route to be taken to it.

  • Entry permits may be revoked or suspended for not abiding by the restrictive laws.

  • Illegal to "coerce" someone to be member of the union and outlaw any action or threat of action on the basis of someone not being a union member. The definition of "threat" will be widened "to incorporate a threat of any kind, whether direct or indirect, express or implied". The wording is so broad that almost any attempt to convince a worker to join the union could be construed as coercion.

    Workplace police

  • Office of Workplace Services (OWS) will be responsible for enforcement and compliance under new regime.

  • Employers and bosses' stooges will be encouraged to dob in unions and workers who are collectively organising or recruiting in a way suspected of breaching the provisions of the Act.

    Its main purpose is to assist employers to make the most of the new laws, not protect the rights or health and safety of workers.

    Forced labour

    As the Government attempts to force sole parents, people with disabilities and unemployed into the workforce, it will be there to check that job offers comply with the minimal Pay and Conditions Standard.

    Welfare recipients turning down a job that meets that low standard lose their benefits.

    Australian Industrial Relations Commission

  • Will supervise and stop "protected industrial action"; deal with right of entry and unfair dismissals; and be responsible for registration of unions and employer bodies.

  • It will strip and rationalise awards in line with recommendations from a review.

  • Conciliation services will be on a voluntary basis in competition with other private mediators.

    Office of Employment Advocate

    Will assist employers with model AWAs and advice. Will file, not inspect or certify, AWAs and agreements lodged by employers.

    Transition period

  • New system phased in over 3-5 years.

  • Existing agreements (based on the conciliation and arbitration power of the AIRC) will continue to operate for up to five years.

  • During that period the agreement "will not be able to be varied or extended after the commencement of the new legislation".

  • Any rises in the minimum wage will not be passed on.

  • There is nothing to stop a new agreement or AWAs replacing it during that period. This is what the government hopes will happen.

    Single national system

  • All constitutional corporations will be covered by rules which override state systems (if this move survives constitutional challenge).

  • All Victorian workers will be covered and those of any other states where governments hand over powers to Federal Government.

    Penalties

    Breaches of the legislation incur massive fines of up to $6,600 for individual workers and union officials; $33,000 for trade unions; and jail sentences of up to 12 months.

    In addition anyone affected by any illegal industrial action ("not protected") may sue workers and union for damages. The amounts are uncapped could be millions of dollars.

    Dispute settlement procedures

    Designed to pit individual worker against employer and to exclude the union.

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