GreensBlog - the official blog of the Australian Greens Senators

The Rudd–Gillard Labor Government has just passed its first piece of IR reform legislation through the Senate. For many who engaged with the Your Rights at Work campaign and voted to see the end of Howard’s Work Choices, the result may seem a little disappointing as this legislation doesn’t go as far as it could or should. There also seems to be some confusion in the mainstream media as to whether Forward with Fairness actually means the end of AWAs and the overturning of the Work Choices regime.

Let me tell you – it doesn’t; they will be here for some time to come.

Just as the title of Work Choices created the impression that Howards workplace reforms increased worker’s choices rather than decreased them, so too the title Forward with Fairness seems to be trying hard to convince us that it is making significant progress towards restoring fairness in the workplace. Unfortunately it seems to be just as misleading.

If there was one issue that dominated last year’s election it was Work Choices. Sadly, some of the people who voted out Howard, believing that they were getting rid of AWAs, may still be stuck on unfair AWAs come the next election. Under the new so-called Forward with Fairness arrangements, existing AWAs can continue up to and even beyond their five year nominal expiry dates, and workers (in workplaces currently using AWAs) can still be offered a new type of individual workplace agreements called an ITEA (individual transitional employment agreement) – kind of an ‘AWA-Plus.’

This is why there should be an opportunity within the Act for workers who are stuck on an unfair AWA to ask the Workplace Authority to assess it against the government’s new no-disadvantage test. If it fails the new test, then they should be able to choose to unilaterally terminate that agreement.

We put an amendment to the Senate to do exactly that – and here is Penny Wong’s inadequate explanation of why they didn’t support it.

The Australian Greens have remained steadfastly opposed to all aspects of the changes to Australian workplaces brought in by Work Choices. We opposed the legislation at the time it was rushed through the parliament, and we are well aware of the hardship it has caused many people in our community. The Greens believe passionately in fair and just workplaces supported by fair and just workplace laws.

Work Choices signalled a major shift in industrial relations with the abandonment of our conciliation and arbitration system. While we recognise the need for our industrial relations system to move with the times and remain responsive to changes in our economy and workforce, Work Choices was not about responding to a changing labour market, but pursued a hard-line ideological agenda that was profoundly unjust. While the Rudd Government’s Forward with Fairness transition Act goes some of the way towards addressing this injustice, there is still a long way to go.

Our primary concern with efforts to reform our industrial relations system should be to ensure a framework of laws which support and protect the interests of the most vulnerable in our workplaces. The Work Choices changes hit hardest those who are least advantaged in our society—young people, women, migrants, those in low-paid and so-called ‘vulnerable’ work, including casual and temporary workers.

The Forward with Fairness transition Act has two long-term impacts: the eventual end of statutory individual agreements, and award modernisation. Statutory individual agreements have never been supported by the Australian Greens - including pre- and post-Work Choices AWAs and ITEAs. There is incontestable evidence from both research reports and the personal stories of those affected, that AWAs have been used to lower wages and lower conditions of employees. The Senate inquiry heard numerous stories, including those of the tragic circumstances associated with the Qantas valet parking debacle.

Our objection to statutory individual agreements is not merely that they could be used to exploit employees, but also because they restrict freedom of association and undermine collective bargaining. Employees cannot exercise genuine choice to collectively bargain when statutory individual agreements exist. Michele O’Neill from the Textile, Clothing and Footwear Union made this point forcefully in the hearings on this Bill. She described workers in her industry being effectively shut out of collective bargaining through the use of AWAs and made a convincing case why the use of individual transitional employment agreements, ITEAs, will continue to create unfairness.

It is very disappointing that many of those workers in vulnerable industries, who are stuck with unfair wages and conditions under existing AWAs, will have to wait five years before they can get the fairness, justice and decency in the workplace that they voted for.

Time to tackle Unfair Dismissal

One of the key concerns about the changes to industrial relations laws in the last few years has not only been the proliferation of AWAs and the reduced safety net, but the intersection of AWAs with the removal of unfair dismissal protections, restrictions of right of entry and restrictions on industrial action. Together these changes substantially alter the balance in workplace relations by undermining the capacity for workers to bargain and organise collectively.

The Australian Greens see no reason why the government would not use this Act to restore unfair dismissal protections for workers. There is a compelling argument for ensuring that unfair dismissal provisions are fixed at the very start of this reform process, so that the lack of protection from unfair dismissal does not undermine the fairness of this process. It is the government’s policy to restore unfair dismissal provisions, and this can be quickly and easily achieved through a simple amendment, yet the Rudd government seems content to leave vulnerable workers in fear for their jobs.

The Work Choices legislation removed the capacity of the Australian Industrial Relations Commission (AIRC) to hear test cases on contemporary community standards in workplaces. These test cases (together with the award system) in the past gave Australian workers conditions such as hours of work provisions; the principle of equal pay for equal work; the regulation of excessive overtime; the introduction of leave such as bereavement and compassionate leave; redundancy provisions; and unfair dismissal provisions.

The new ‘modernised’ award system being developed through this Act removes the ability of stakeholders in the industrial relations system to bring such matters before an independent tribunal. Under the new system the power and the discretion to review and modernise awards resides entirely with the Government. Our society and our workplaces will never remain static, and we need to ensure that there is sufficient ability in the new system to adapt and respond to changing circumstances. To be able to respond effectively to changing circumstances, awards need to be reviewed regularly and contain appropriate mechanisms to allow the involvement of relevant stakeholders.

Pay Equity

The issue of pay equity provides an example of the need for awards to be varied by a broader process. We all know that the average pay rates for women in Australia are well behind the average pay rates for men, and there is clear evidence that the pay gap has been made worse under AWA’s. The WA experience of a similar state system of individual workplace agreements showed the pay gap became a chasm, and WA ended up with the worst gender pay inequity in the nation.

All the research conducted in Australia over the last 10 years points to the awards playing an important role in addressing gender pay inequity. For example, most states now have pay equity principles which allow awards to be varied to ensure equal pay for work of equal value. However, the award modernisation process being put forward by Julia Gillard in this Bill fails to take into account the need to deal adequately with the issue of gender pay equity – and by doing so it risks locking the pay gap in place. Without the Industrial Relations Commission being required to consider pay equity properly when modernising awards, the award modernisation process will merely consolidate the pay inequities that already exist in awards.

A Comprehensive Safety Net

The Government needs to ensure a fair, robust and relevant award system without throwing away the strength of the award system under conciliation and arbitration. Our vision for the award system is a comprehensive safety net for workers on an industry or occupational level that is flexible enough to allow for industry-specific conditions, but secure enough to provide appropriate protections to all workers.

Unless the Rudd Government commits to making these important changes to our Industrial Relations legislation, workers will be subjected to several more years of unfair AWA’s. Given the furore over Work Choices at the last federal election, the people of Australia have clearly mandated the ALP to overhaul the system – perhaps it is time they delivered on the biggest election promise of them all.