For months the ACTU and ALP have been spruiking new IR laws as miraculously improving wages. They do the exact opposite. Do not believe the spin.
In fact, the proposed new IR laws contain calamitous attacks on working people. They attack the lowest paid workers of all. Workers that have relied on the Better Off Overal Test (BOOT) to be paid the lowest wages in Australia.
The laws are rushed and without consultation. That Big Business, ACTU and SDA were involved in their drafting either says they are bereft of intelligence or vindictively evil.
Here we lay out 10 of the worst changes which they want to inflict on workers:
- BOOT is gone. In the election campaign the ALP forced the LNP to promise no changes to the BOOT. They claimed BOOT meant “Every.Employee.Better.Off.” and any change meant this was not going to see every employee better off. They couldn’t have been more clear in their pre-election promise. Now elected, the ALP hypocrisy machine has created a new test which is absolutely not the BOOT. It will cause millions of workers to lose billions of dollars if not stopped.
- They will strip BOOT of a “prospective employee test”. This means that when the Commission assesses an agreement it will not assess how future employees will be impacted. This is specifically deliberate. McDonald’s, Coles and every other exploiter of labour is salivating. They could grandparent penalty rates, casual loading, roster rights and other Award conditions to current employees and strip every single right from future employees. Since future employees are prospective employees, they would not be considered at all by the Fair Work Commission in the test. This is far worse than even Workchoices. We will see returned the rotten deals inflicted by SDA on workers at McDonald’s, Domino’s Pizza, Coles, Woolworths, KFC, Bunnings, Officeworks, Kmart, Big W and so many more. Millions of low paid workers will have billions of dollars stripped from them.
- When those rotten deals are to be assessed, the voice of SDA will be the “primary consideration” for the Fair Work Commission. While the views of workers, RAFFWU and employers will be given consideration, none of those – including employees and employers – will be given equal consideration to the SDA. For decades SDA told the Fair Work Commission its rotten deals met the BOOT when they clearly did not. This attempt to sideline RAFFWU and any employee who dares speak up is a pathetic attempt by ACTU/ALP/SDA and the Big Business which owns them to return to the dark days which cost millions of workers, billions of dollars.
- The deals will also be assessed not by a line item assessment but a “flexible global assessment” which will allow vastly different conditions to offset losses in a deal. For example, a Commissioner could determine the loss of a uniform allowance, or a penalty rate, is offset by some other entitlement entirely unrelated to the lost condition.
- The deals will be assessed considering only roster patters and kinds of work “reasonably foreseeable” at the time of the test. In effect, workers will have to prove an employer doesn’t intend to use a different roster or type of work. For example, KFC might say they have no casual employees so they don’t have to pay a casual loading. A HR manager could say they have no intention of engaging casual employees. Lo and behold, once the agreement with no casual loading is approved, KFC might decide to retrench all part-time employees and rehire them as casual workers. This could be a lawful way to avoid any casual loading. The same could occur with a business not open on Sundays so no Sunday penalty rate is included in the deal. After approval, lo and behold the business does open on Sundays and workers get rostered to work with no penalty rates.
- The purported protection to this is that workers could mount their own legal case to have the agreement assessed again by a “reconsideration mechanism”. This is a fix to a problem which does not currently exist. Workers will be required to run expensive cases over many months or years and in the meantime they will not get a cent of the wages stolen by the original deal. To avoid doubt, there is no credible evidence of any employer, anywhere, having an issue with the current BOOT. There are just a series of aggrieved retail and fast food employers upset because RAFFWU has forced them to pay a billion dollars more per year in wages because their old rotten deals with the SDA have been stopped.
- The new laws will empower the Fair Work Commission to amend an enterprise agreement without any capacity for workers (or employers) to contest the amendment. In fact, the Fair Work Commission isn’t even required to seek the views of workers, employers or bargaining representatives – it may seek their views. Critically, an employer will not know if the agreement they agree on will be the agreement imposed on them. Currently, undertakings may not be accepted by an employer leaving an agreement not approved. In some ways amending an agreement over the wishes of an employer can be a better process but it will lead to employers not agreeing in the first place. In so doing, it will make it harder for workers to secure better wages and conditions through enterprise bargaining.
- Express requirements to explain the terms of a new agreement, and the effect of those terms, are gone. A new generic document will outline this is an expectation and the Fair Work Commission will consider that document in determining whether employees have genuinely agreed to the agreement. However, the express direct requirement on employers is gone.
- Industrial action will require a new Protected Action Ballot Order (PABO) every three months. The PABO process is a stage – introduced in Workchoices and maintained in the Fair Work Act – which requires employees to authorise the industrial action they might take to secure an agreement. PABOs are unheard of anywhere in the world and are a fundamental handbrake on increasing wages because they massively limits the right to strike. Essentially a complex application is made to the Fair Work Commission, an Order dictates the steps which will be taken over the ballot period, employers and unions create lists of workers, a ballot agent conducts a ballot and only when the ballot is declared is worker action authorised. At every stage a boss can object to the process and create roadblocks. They do every week. The change will mean workers need to go through this process every 3 months creating a huge organisational cost to unions, the Fair Work Commission and the Australian Electoral Commission. In order for this to work, unions will effectively have to apply for a new order almost immediately after getting the first order. It is bureacracy gone mad and trying to fix a problem that does not exist.
- Obtaining a PABO will automatically create a conciliation process over bargaining in the Fair Work Commission. While on its face further discussions during action can be a good thing – requiring parties attend the Fair Work Commission and participate in bargaining separate to the ordinary process underway outside the Fair Work Commission – is further nonsensical bureacracy. There are already processes for unions and employers to take bargaining issues to the Fair Work Commission. This creates just more impediments on workers and their unions accessing lawful protected industrial action. It is trying to fix a problem that does not exist.
Of course, despite the bill amending the Act being called the “Secure Jobs” bill, it does nothing to improve the job security of casual workers. In truth, it only attacks casual workers.