Tuesday, 6 January 2015

Has a resurgent zombie WorkChoices come to eat your penalty rates? –

Has a resurgent zombie WorkChoices come to eat your penalty rates? –

Has a resurgent zombie WorkChoices come to eat your penalty rates?

The spectre of WorkChoices visits again as employers and industry groups lobby for industrial relations reform.

The future of penalty rates for weekends and public holidays is back in the spotlight as employer groups lodge submissions with the Fair Work Commission, which is reviewing more than 200 awards covering minimum wages, working hours and other conditions.

On Saturday, Fairfax Media picked up some of the employer
submissions urging removal of penalty rates and, proving what a
hot-button issue this is, at last count the story had 10,000 likes on Facebook and 520 comments on The Sydney Morning Herald
website alone, running for 60 pages until they were closed off. The
first commenter, Nicko, jumped online at 6.31am and pretty much set the
tone: “Well if retailers want to work weekends they’re most welcome to,
just don’t force other people to do it. It’s just another way to make
more money and take away another worker’s right to spending time with
their family and friends.”

Minister for Employment Eric Abetz and Treasurer Joe Hockey, who announced
a Productivity Commission review into workplace relations on the Friday
before Christmas, will tread extremely carefully before introducing any
across-the-board reforms to penalty rates — notwithstanding calls for
an overhaul from Coalition backbenchers like Dennis Jensen and Alex Hawke or former tennis great John Alexander.

Madonna King’s biography Hockey: Not Your Average Joe records
that when John Howard appointed Hockey as employment minister in early
2007 — the first cabinet post for the avuncular politician — he was
given the awful job of selling an unpopular WorkChoices policy in the
lead-up to the federal election. Having come into effect in March 2006,
the WorkChoices reforms removed
the so-called “no-disadvantage test” (meant to ensure individual
contracts could not leave a worker worse off than under the relevant
industry award) and thereby allowed employers to offer workers contracts
without penalty rates. Hockey was tasked with selling an “impossible
message,” writes King:

… within weeks of starting the
new gig, Joe knew the law would require changes if the party had any
hope of staying in government … Joe knew the brunt of criticism of the
government’s industrial relations laws centred on two issues — penalty
rates and unfair dismissals. They were stopping him making inroads to
explain the rest of the policy.”

Hockey urged a softening of the policy on penalty rates but
Howard, channelling his hero Margaret Thatcher, was “not for turning”.
As the union movement ramped up the devastatingly effective “Your Rights
At Work” campaign in 2007, emotions ran high. King writes the
WorkChoices policy was “toxic” and those around the cabinet table
“acknowledged it was the policy around unfair dismissals and penalty
rates that was the real bugbear”.

Not everybody remembers it that way. John Hart is chief
executive of Restaurant and Catering Australia, one of the industry
lobby groups that has lodged a submission on penalty rates with the Fair
Work Commission, and was involved in the negotiations to soften
WorkChoices back in 2007, which resulted in reintroduction of an
alternative “fairness test” but did not shift a debate that had turned
against the government.

Hart told Crikey yesterday that King’s treatment of
the penalty rates issue “really jarred for me, having been fairly
closely involved with the discussions at the time”.

“The issues at the time were not penalty rates. Essentially
it was Australian workplace agreements and the way they were being
struck. That’s why the fairness test was introduced. There were concerns
with the removal of the no disadvantage test and that was certainly an
accurate reflection [in the book], but not penalty rates.”

Hart says the restaurant industry is a special case and the
broader fears about penalty rates are often raised by people who are not
involved in the hospitality industry — in emergency services, for
example, which is “not within a bull’s roar of what we’re talking

Hart does not want to debate penalty rates in general.
“There is no call here for a legislative solution,” he said. “There is
not a problem across the board, there is only a problem for our

“What the Fair Work Commission should do is adjudicate
between the parties, either by agreement or conciliation or arbitration.
That is the correct way to deal with awards. Job-lot arrangements
across awards are really a nonsense.”

“We’re not even arguing penalty rates should be removed,”
Hart said. “All we’re saying is Saturday [time-and-a-half under the
industry award] should equal Sunday [1.75 times] and governments should
stop gazetting public holidays.”

The Fair Work Commission has set out a timetable
for award review hearings that will drag on all year. The Productivity
Commission will report in November. Which leaves the federal government,
still trying to get an unpopular budget through the Senate, in a bind.
The WorkChoices spectre has been let loose and will be spooking voters
all year. It is hard to see much government appetite for radical IR
reform heading into the 2016 election.

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