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What to make of the “Change The Rules” campaign

Last Tuesday, October 23, 2018, union rallies were held in Melbourne and Sydney in support of the Australian Council of Trade Union’s (‘ACTU’) “change the rules” campaign. The protests followed a series of national TV and radio advertisements launched in early October. The “change the rules” campaign is seeking to “re-balance the system and negotiate on more equal terms with big business.” Despite the ACTU’s active involvement in the introduction of the Fair Work Act 2009 (Cth) (‘Fair Work Act’), the ACTU is now pushing for another overhaul of the industrial relations landscape. In the noise created by this campaign, the unions have perhaps overlooked the fact that for a large class of employees, the current framework provides better protection and job security than they have ever had.

The majority of workplaces in Australia are now governed by the Fair Work Act. The Fair Work Act was introduced by the Rudd Government after coming into power in 2007, largely due to a successful election campaign promising to reform the Howard government’s Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (‘WorkChoices’).

WorkChoices was heavily criticised for increasing employer protections and flexibility for businesses, while reducing employee entitlements and access to unfair dismissal laws and collective bargaining – the legislation was polarising. There were many that felt that it was what the economy needed, although the electorate, as a whole, rejected the approach.  It is widely accepted to be one of the key things that ended John Howard’s political career.

However, while the two sides of politics have very different ideas over how “national system employees” should be treated, it is very easy to forget that prior to 2005, there was no such thing.

Throughout most of the 20th century, many employees were covered by either enterprise agreements, or by state or federal based industry or occupational awards. But there was an entire class of employees that had no award or agreement coverage, and no national level “protection” or job security, other than the private protection of their contract of employment with their employer. There was no minimum notice period, no redundancy entitlements, and no unfair dismissal protection for these employees. Some of these were executive level employees, that have traditionally been highly remunerated and regarded as being able to look after their own interests, however most of them were employees in junior professional roles and “middle management”. These employees were extremely vulnerable for many years.  

While WorkChoices was quite correctly regarded as oppressive legislation, it had the useful effect of opening the door to legislation protecting “national system employees”.  What followed, being the introduction of the Fair Work Act, was seen as a step in the right direction with the introduction of nation-wide minimum standards, and the streamlining of the award system. There are now 122 Modern Awards, compared to over 1,500 awards under the previous system. The Fair Work Act applies to all employees employed by a national system employer, regardless of whether they are permanent or casual. Further, some provisions in the Fair Work Act extend to non-national system employees. The Fair Work Act thus provides greater coverage, and a more consistent protection than any system we have previously had.

The cornerstone to the Fair Work Act is the National Employment Standards. There are 10 legislated National Employment Standards that apply to all employees regardless of their employer’s size or circumstances. These standards are:

  1. A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional hours.
  2. A right to request flexible working arrangements for employees who are carers; are the parent of, or care for a child, who is school aged or younger; have a disability; are 55 or older; or are experiencing, or caring for a family member experiencing, family violence.
  3. Parental and adoption leave of twelve months (unpaid), with a right to request an additional twelve months.
  4. Four weeks paid annual leave each year (pro rata for part time employees).
  5. Ten days paid personal/carer’s leave each year (pro rata for part time employees), two days paid compassionate leave for each permissible occasion, and two days unpaid carer’s leave for each permissible occasion.
  6. Community service leave for jury service or activities dealing with certain emergencies or natural disasters. This leave is unpaid except for jury service.
  7. Long service leave.
  8. Public holidays and the entitlement to be paid for ordinary hours on those days.
  9. Notice of termination and redundancy pay.
  10. The right for new employees to receive the Fair Work Information Statement.

Employers cannot contract out of these statutory instruments by ordinary common law employment contracts.

The National Employment Standards introduced the entitlement of up to 16 weeks’ redundancy pay. Redundancy pay was previously only available to employees covered by awards and enterprise agreements. Under the National Employment Standards, access to redundancy entitlements was extended to managerial and professional employees not covered by awards.

A number of other benefits have been introduced under the Fair Work Act. Unfair dismissal laws under the Fair Work Act restored the eligibility for those working for employers with 100 or fewer staff. The Fair Work Act’s pay equity provisions empowered the Fair Work Commission to make equal remuneration orders to ensure people performing equal work receive equal remuneration. In 2017, Fair Work Act amendments were introduced to provide greater protections and redress for vulnerable workers introducing significantly higher penalties for breaches of employee record keeping and “serious contraventions” of workplace laws, such as the use of sham contracting.

These have arguably been big wins for Australian workers under the Fair Work Act.

The Fair Work Act has made substantial changes to the landscape of the Australian workplace, with arguably wider and more consistent protection for employees than has ever been enjoyed before. Despite the growing noise from the unions that may have you thinking Australian workers are grossly unprotected, Australian workers have a significant safety net by way of the National Employment Standards, which are available to workers regardless of the employer’s size, or the worker’s salary. While there is always opportunity for improvement, the ACTU’s plan to “overhaul” the system significantly overstates the problem. Curiously, the unions are now pushing to change the “broken” workplace laws they helped write less than a decade ago.

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