tag:theconversation.com,2011:/us/topics/fair-work-act-1949/articlesFair Work Act – The Conversation2024-03-07T19:24:27Ztag:theconversation.com,2011:article/2249492024-03-07T19:24:27Z2024-03-07T19:24:27Z2024 could be the year the Fair Work umpire properly values women’s work – here’s how<p>This International Women’s Day, it is time to call on Australia’s workplace umpire, the Fair Work Commission, to finally close the gender pay gap.</p>
<p>Half a century after the commission’s predecessor granted women “equal pay for equal work” in a <a href="https://atui.org.au/2020/06/16/the-1969-equal-pay-case/">landmark case</a> in 1969, the gap remains between <a href="https://www.wgea.gov.au/data-statistics/ABS-gender-pay-gap-data">12% and 21%</a>.</p>
<p>Amendments to the Fair Work Act by the incoming Labor government in 2022 gave it new tools to close the gap by addressing the undervaluation of work in traditionally female-dominated occupations.</p>
<p>If it uses these tools to their full potential, 2024 will be a landmark year in the genuine achievement of equal pay for equal work. </p>
<h2>What we’ve been doing hasn’t much worked</h2>
<p>Traditionally in Australia, addressing gender-based undervaluation has relied on two approaches. </p>
<p>The first has been to argue the business case for gender equality – convincing employers they’ll be rewarded for “<a href="https://theconversation.com/now-youre-able-to-look-up-individual-companies-gender-pay-gaps-224167">doing the right thing</a>”. </p>
<p>The second has been to bring equal pay cases to tribunals. </p>
<p>Unfortunately, neither approach has been successful. In particular, pushing for equal remuneration through tribunals has been time-consuming and expensive.</p>
<p>These tribunals, historically working on models of male full-time wage earners, have <a href="https://law.uq.edu.au/files/5960/Pay-equity.pdf">struggled</a> to understand the undervaluation of work performed predominantly by women. </p>
<h2>The commission’s new tools</h2>
<p>The commission’s <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s3.html">act</a> has been rewritten to require it to </p>
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<p>promote job security and gender equality. </p>
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<p>It also has the power to make <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s302.html">equal remuneration orders</a> either on its own initiative or on application in order to bring about equal pay for work of equal or comparable value. </p>
<p>A further new development is the establishment of <a href="https://www.dewr.gov.au/secure-jobs-better-pay/resources/establishing-two-new-expert-panels-fair-work-commission">expert panels</a> to assist in gender-related cases. Advice from gender experts should assist in overcoming historical gender biases in commission decisions. </p>
<p>Perhaps the most promising tool is the change to the commission’s <a href="https://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fwa2009114/s134.html">modern awards objective</a>, which requires it to eliminate gender-based undervaluation of work and provide workplace conditions that facilitate women’s full economic participation each time it reviews an award.</p>
<p>Among other things, this requirement is likely to result in provisions that ensure part-time work is treated equally to full-time work and ensure a better balance between work and caring responsibilities.</p>
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Read more:
<a href="https://theconversation.com/qantas-pays-women-37-less-telstra-and-bhp-20-fifty-years-after-equal-pay-laws-we-still-have-a-long-way-to-go-223870">QANTAS pays women 37% less, Telstra and BHP 20%. Fifty years after equal pay laws, we still have a long way to go</a>
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<p>Amending awards is likely to be particularly important for women given that almost <a href="https://www.fwc.gov.au/documents/wage-reviews/2022-23/profile-of-employee-characteristics-across-modern-awards-2023-03-03.pdf">three in five</a> of the workers on awards are women. Men are mainly on negotiated agreements.</p>
<p>If the commission wanted to, it could hold a wide-ranging inquiry into the many factors that have contributed to gender-based undervaluation of women’s work. </p>
<p>It could also review entire industries and occupations that are female-dominated, upgrading multiple awards at the same time. This would avoid lengthy and costly reviews of individual awards.</p>
<h2>What’s likely in 2024</h2>
<p>The Fair Work Commission’s resolve to make lasting change will be tested by several matters currently before it. </p>
<p>The commission is due to issue its final decision in the case lodged by the Australian Nursing and Midwifery Federation, the Health Services Union, and the United Workers Union on the value of the work done by workers in <a href="https://www.fwc.gov.au/hearings-decisions/major-cases/4-yearly-review/awards-under-review/aged-care-award-review-am2014251">aged care</a>. </p>
<p>An initial <a href="https://www.fwc.gov.au/documents/sites/work-value-aged-care/decisions-statements/2022fwcfb200.pdf">interim decision </a> delivered in 2022 awarded some – but not all – of these workers a 15% increase, finding that work in feminised industries had been historically undervalued and the reason for that undervaluation is likely to be gender-based".</p>
<p>Workplace Relations Minister Tony Burke backed the decision, saying it was merely the “<a href="https://ministers.dewr.gov.au/burke/pay-rise-aged-care-workers">first step</a>”. </p>
<p>Another application, for nurses and midwives outside of aged care, was lodged by the Australian Nursing and Midwifery Federation in <a href="https://www.fwc.gov.au/hearings-decisions/major-cases/work-value-case-nurses-and-midwives">February this year</a>. </p>
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Read more:
<a href="https://theconversation.com/itll-take-more-than-15-to-beat-the-stigmas-turning-people-off-aged-care-206670">It'll take more than 15% to beat the stigmas turning people off aged care</a>
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<p>The commission has already started the process of grappling with gender-based undervaluation in modern awards, commissioning research that <a href="https://www.fwc.gov.au/documents/consultation/gender-based-occupational-segregation-report-2023-11-06.pdf">documents</a> the segregation of women and men into different occupations and industries.</p>
<p><a href="https://www.fwc.gov.au/documents/consultation/presidents-statement-stage-2-gender-pay-equity-2023-12-5.pdf">Further research</a> documenting the history of a select group of female-dominated modern awards and identifying the extent to which common elements indicate gender-based undervaluation, is due to be released in April. </p>
<p>It will feed into the <a href="https://www.fwc.gov.au/hearings-decisions/major-cases/annual-wage-reviews">annual wage review</a> due by the middle of the year.</p>
<h2>How to be bold</h2>
<p>Gender-based undervaluation of women’s work won’t be eradicated by incremental adjustments. </p>
<p>Here are three bold steps the commission could take: </p>
<ul>
<li><p>grant a minimum interim 12% increase (one estimate of Australia’s <a href="https://www.abs.gov.au/statistics/people/people-and-communities/gender-indicators">national gender pay gap</a>) across the board for female-dominated awards in this year’s annual wage review</p></li>
<li><p>develop new systems for classifying work and ascribing work value, breaking with the previous standards built around skills and qualifications in male dominated occupations </p></li>
<li><p>better consider the uneven bargaining power in industries such as nursing where governments fund care work and try to restrain costs.</p></li>
</ul>
<p>The changes to the Fair Work Act that allow <a href="https://www.fwc.gov.au/about-us/secure-jobs-better-pay-act-whats-changing/bargaining-support-6-june-2023/new-supported">multi-employer bargaining</a> are a start, but <a href="https://journals.sagepub.com/doi/full/10.1177/00221856231198880#bibr36-00221856231198880">unlikely alone</a> to correct the undervaluation of women’s work. </p>
<p>In female-dominated industries where collective bargaining is non-existent or ineffective, the commission should step in and further increase wages. </p>
<p>The Fair Work Commission has been given the tools. This should be the year it applies them.</p><img src="https://counter.theconversation.com/content/224949/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lisa Heap is affiliated with the Centre for Future Work at the Australia Institute and is Secretary of the Association of Industrial Relations Academics Australia and New Zealand. </span></em></p>The Fair Work Commission has been given new tools. Among them is the power to eliminate gender-based undervaluation of work in entire awards and groups of awards.Lisa Heap, Doctoral Researcher RMIT University; Senior Researcher Centre for Future Work at the Australia Institute, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113392023-08-10T19:59:50Z2023-08-10T19:59:50ZCan employers stop you working from home? Here’s what the law says<figure><img src="https://images.theconversation.com/files/542057/original/file-20230810-29-k9dewx.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7940%2C3773&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Zoom, the videoconferencing company whose fortunes soared with the pandemic-driven shift to working from home, has <a href="https://www.theguardian.com/technology/2023/aug/07/zoom-tells-staff-to-come-into-the-office-at-least-two-days-a-week">reportedly</a> told its staff to get back to the office – for at least two days a week, if the commute is no more than 80 kilometres. </p>
<p>It’s part of a trend of employers winding back the work-from-home flexibility that enabled most to keep operating through the pandemic in 2020 and 2021.</p>
<p>In Australia, close to 90% of employers have implemented mandatory in-office days, according to <a href="https://www.roberthalf.com.au/press/87-australian-companies-have-implemented-mandatory-office-days-staff">a survey of 300 hiring managers</a> commissioned by recruitment agency Robert Half. The survey shows 19% insisting on five days a week, 28% on four days, and 26% on three days. Almost a third of respondents reported at least one employee quitting in response.</p>
<p>Particularly for parents and younger workers, working from home is not something they will readily give up. </p>
<p>Which raises the question: can an employer, having first directed you to work from home, now turn around and mandate you don’t?</p>
<p>In many cases, the short answer is yes – though some people have a stronger case to argue for flexible work – and correct procedures must be followed. </p>
<h2>Is it a ‘lawful and reasonable’ direction?</h2>
<p>Whether you are employed permanently, as a casual or on a short-term contract, you are required to follow “lawful and reasonable” directions from your employer. Even if this isn’t stated specifically anywhere, Australian courts have ruled this requirement is “implied” in every employment contract. </p>
<p>A direction to return to the workplace will be lawful and reasonable except in extreme cases – for example, where it is contrary to a government directive or another law. </p>
<p>If you can perform your role at home and have a legitimate reason to do so – such as an underlying health issue – you may have grounds to argue a directive to return to the office is not reasonable.</p>
<p>But a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable. Failing to comply with this direction may be a valid reason for disciplinary action, including dismissal. </p>
<h2>Is consultation required?</h2>
<p>If your work is covered by an award or enterprise agreement, you can collectively assert your right to be consulted, on the basis that a return-to-work order constitutes a “major workplace change”. </p>
<p>The Fair Work Ombudsman <a href="https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/consultation-and-cooperation-in-the-workplace">says consultation</a> requires giving notice, discussing the proposed changes, providing written information and giving “prompt consideration” to any matters raised by employees and their representatives.</p>
<p>Even though the employer ultimately doesn’t need consent, the consultation still needs to be genuine and properly consider employees’ views, following the processes set down in the applicable award or agreement. </p>
<p>This is the issue in the dispute over the Commonwealth Bank of Australia directing employees to be in the office 50% of the time. The Finance Sector Union is challenging this in the <a href="https://www.theguardian.com/news/2023/jul/12/commonwealth-bank-wfh-office-rule-union-dispute-work-from-home">Fair Work Commission</a>, arguing the bank breached its obligation to consult. So even if the commission agrees, the policy won’t necessarily change.</p>
<h2>What about flexible work arrangements?</h2>
<p>If your award, enterprise agreement or employment contract contains “workplace flexibility” provisions, you may have rights to work from home or to make a request. </p>
<p>In addition, the national employment standards under the Fair Work Act give employees the right to request “flexible work arrangements” if they’ve been with the employer for at least 12 months, and: </p>
<ul>
<li>are a parent or carer of a child of school age or younger </li>
<li>a carer<br></li>
<li>have a disability </li>
<li>are at least 55 years of age<br></li>
<li>are pregnant </li>
<li>are experiencing family or domestic violence, or caring or supporting an immediate family or household member experiencing family or domestic violence.<br></li>
</ul>
<p>Casual employees have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis. </p>
<p>Employers who get a request for flexible working arrangements need to respond in writing <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arrangements">within 21 days</a>.</p>
<p>An employer can only refuse a request on “reasonable business grounds”, and where they have genuinely tried to agree to alternative arrangements to accommodate the employee’s circumstances, and have considered the consequences for any refusal. </p>
<p>Reasonable business grounds include such factors as the size and nature of the business. These include the request being too costly and having a significant adverse effect on efficiency, productivity or customer service. </p>
<p>As of June 6 2023, employees have had a right of appeal to the Fair Work Commission, which has new, more expansive powers to resolve such disputes by mediation or conciliation, or by making a recommendation, and, if required, by arbitration. </p>
<h2>Reasonable adjustments for employees</h2>
<p>The right of review for flexible work arrangement requests, though limited to certain employee categories, could well become a hotly contested area.</p>
<p>If an organisation mandates their workers return to the workplace – whether exclusively or in part – the employer needs to provide clear guidelines. The “humane way” to introduce such a policy (regardless of any legal requirement) is to consult with employees over the change. </p>
<p>If an employee seeks a flexible work arrangement, the employer needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances. That way, they can accommodate employees – so far as is practicable – and if required, make reasonable adjustments. </p>
<p>In sectors with persistent labour shortages, employees will have more leverage to have their views heard and negotiate and, in some cases, even request a review.</p>
<p><em>* If you’re an employee <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace#ways-to-request-flexible-working-arrangements">wanting to request</a> flexible working arrangements, such as working from home, or an employer wondering <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arrangements">how to handle</a> such requests, you can read more at <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace">the Fair Work Ombudsman</a>.</em></p><img src="https://counter.theconversation.com/content/211339/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If an organisation mandates their workers return to the workplace – whether exclusively or in part – it needs to provide clear guidelines.Giuseppe Carabetta, Associate Professor, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2104562023-07-30T20:08:40Z2023-07-30T20:08:40ZWe need more than a definition change to fix Australia’s culture of permanent ‘casual’ work<figure><img src="https://images.theconversation.com/files/539435/original/file-20230726-21-mojlsq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">shutterstock</span> </figcaption></figure><p>The surprising thing about the Albanese government’s <a href="https://ministers.dewr.gov.au/burke/standing-casual-workers">announced reforms</a> to
“casual” employment is not that they’re happening. It’s that employer advocates are <a href="https://www.afr.com/work-and-careers/workplace/casuals-to-get-the-whip-hand-under-labor-s-six-month-conversion-test-20230724-p5dqr5">getting so excited</a> about them, despite the small number of people they will affect and the small impact they will have.</p>
<p>That’s not to say the changes aren’t needed. Rather, true reform of the “casual” employment system, of which this is just a first but important step, has a lot further to go to resolve the “casual problem”.</p>
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Read more:
<a href="https://theconversation.com/albanese-government-to-make-it-easier-for-casuals-to-become-permanent-employees-210259">Albanese government to make it easier for casuals to become permanent employees</a>
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<h2>What is the ‘casual problem’?</h2>
<p>This problem is that most “casual” workers aren’t really casual at all — as shown by analysis that <a href="https://journals.sagepub.com/doi/abs/10.1177/00221856221097474?journalCode=jira">I and colleague Robyn May did</a>, using unpublished data from the Australian Bureau of Statistics (ABS).</p>
<p>The premise for hiring them is that the work is intermittent, short-term and unpredictable. But, as you can see from the chart, the last time the ABS collected these data, a majority of “casuals” worked regular hours. </p>
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<p>Almost 60% of “casuals” had been in the job for more than a year. About 80% expected to still be there in a year’s time.</p>
<p>Only 6% of “casuals” (1.5% of employees) worked varying hours (or were on standby), had been with their employer for a short time, and expected to be there for a short time. </p>
<p>Even now, some “casuals” have been doing the same “casual” work for over 20 years. </p>
<h2>Permanent ‘casuals’</h2>
<p>All this has led to a class of “permanent casuals” – a nonsense term. They should more accurately be called “permanently insecure”.</p>
<p>The one thing “casuals” have in common is they’re not entitled to sick leave or annual leave, and they are in a precarious employment situation. Their contract of employment only lasts till the end of their work day. </p>
<p>That means they <a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">have much less power</a> than other workers. So little power, in fact, that <a href="https://journals.sagepub.com/doi/abs/10.1177/00221856221097474?journalCode=jira">barely half</a> of them even get the casual loading they are meant to be paid in compensation for not receiving other entitlements. </p>
<p>On average, low-paid “casuals” <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/bjir.12458?casa_token=4PUAafApPhwAAAAA%3Axm-CkL1KV_mANDC-2s2NeHa6hTUXwa13XJKFNyUHBT4DACbxINn5JtyCewS9Val0-J9iuBdtZtlY-6eu">get less pay</a> than equivalent permanent workers, despite the loading. </p>
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<h2>Changing legal definitions</h2>
<p>Not many “casuals” have been brave enough to challenge this exploitative relationship. But when they did a few years ago, Australia’s courts agreed permanent casual work was nonsensical.</p>
<p>To be a “casual worker”, there had to be no promise of ongoing employment. A court would judge this not just by what was in the formal contract of employment but also by what the employer actually did. If they kept hiring you, week after week, on a predictable roster, you weren’t casual.</p>
<p>In 2018, mine worker Paul Skene challenged his classification as a casual worker, arguing he had done pretty much the same work, with a few changes along the way, for five years. </p>
<p>The Federal Court agreed <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2018/2018fcafc0131">he wasn’t a casual employee</a> and should be back-paid annual leave. Another mine worker, Robert Rossato, <a href="https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2020/2020fcafc0084">had a similar victory</a> in 2020.</p>
<p>Employer organisations were “<a href="https://www.australianchamber.com.au/news/achievement-of-casual-employment-certainty-is-welcome-but-the-rest-of-the-ir-omnibus-bill-must-not-be-adandoned/#:%7E:text=not%20be%20adandoned-,Achievement%20of%20casual%20employment%20certainty%20is%20welcome%20but%20the%20rest,Bill%20must%20not%20be%20adandoned&text=Australia's%20leading%20business%20groups%20welcome,needed%20certainty%20regarding%20casual%20employment.">outraged</a>” by the “<a href="https://9now.nine.com.au/a-current-affair/federal-court-of-australia-rules-casual-workers-entitled-to-paid-leave/e2ca831d-076c-4c52-a2c5-10fd3cef64d7">billions</a>” in back pay they could be forced to pay for having misclassified ongoing workers as casuals. They lobbied the Morrison government to amend the law, and challenged the rulings in the High Court.</p>
<p>The Morrison government <a href="https://journals.sagepub.com/doi/full/10.1177/10353046211015786#bibr51-10353046211015786">changed the law</a> in early 2021, to give primacy to the written contract, ignore employer behaviour, and protect employers from back-pay claims.</p>
<p>Later that year the High Court overturned the Federal Court decisions, <a href="https://www.corrs.com.au/insights/rossato-high-court-clears-the-air">ruling</a> it was the written employment contract that mattered. If that was worded a certain way, you couldn’t test whether a worker was “casual” by whether the employer treated them that way afterwards.</p>
<p>Labor promised to overturn these interpretations, and that’s what this proposal does.</p>
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Read more:
<a href="https://theconversation.com/employers-will-resist-but-the-changes-for-casual-workers-are-about-accepting-reality-210272">Employers will resist, but the changes for casual workers are about accepting reality</a>
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<h2>What will the legislation change?</h2>
<p>The details of the government’s plan is still not clear, but it is likely it will seek to amend the Fair Work Act to <a href="https://ministers.dewr.gov.au/burke/speech-sydney-institute">revert to something close to the pre-2020 definition of casual work</a>, with a procedural twist.</p>
<p>It will again be possible to judge whether an employee is “casual” based on employer behaviour. And an employee who repeatedly works a similar roster can, after six months, demand “permanency” – meaning rights to sick leave, annual leave, and better protection against arbitrary sacking.</p>
<p>The twist: until they demanded “permanency” they won’t be entitled to any leave. So employers will be protected against claims for back pay.</p>
<p>Theoretically this could affect hundreds of thousands of “casual” workers. In reality, it will likely help far fewer.</p>
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<p>Suppose you’re a “casual” labour hire worker in mining. You can tell what time you’ll start work on the first Friday next June. You go to your employer — the labour hire company — and say: “Make me permanent.” The labour hire company says: “We can’t. You might not have a job tomorrow.”</p>
<p>And indeed, now that you’ve asked, maybe you won’t have a job. So would you really ask?</p>
<p>It will depend critically on the protections offered to workers who ask to convert, and how credible they are to workers. </p>
<p>Most people only expect a few people to make the demand. Workplace relations minister Tony Burke says he believes only a “<a href="https://ministers.dewr.gov.au/burke/doorstop-interview-parliament-house-canberra-2">very small proportion</a>” of “casuals” working regular shifts will do so. </p>
<p>Part of that reluctance will be fear of the consequences, and part of it will be that many casuals rely on their casual loading. About <a href="https://www.abs.gov.au/statistics/labour/earnings-and-working-conditions/employee-earnings-and-hours-australia/may-2021/63060DO005_202105.xlsx">half of</a> “casuals” are on the award minimum rate, compared with 15% of “permanent” full-time workers. Most <a href="https://journals.sagepub.com/doi/abs/10.1177/0022185618814578">cannot afford</a> to “choose” to trade the money for holidays and other entitlements.</p>
<p>If you’re not getting the casual loading, you’ve got nothing to lose — except your job. If the power imbalance means you don’t get the loading, you won’t fancy your chances. </p>
<p>So, it will just work for a small number or workers – though it’s likely to be very important to them.</p>
<h2>More needs to be done</h2>
<p>In short, this is a good step but more needs to be done.</p>
<p>In <a href="https://openknowledge.worldbank.org/server/api/core/bitstreams/4f45d37a-ae74-5c30-8313-aa7783191d1a/content">most other wealthy countries</a> all workers – including temporary workers – are entitled to annual leave. That’s not the case in Australia, because of the “casual” ruse. These laws will not change that.</p>
<p>There should be universal leave entitlements. Sure, there needs to be a loading where work is unpredictable, and hence so short-term that leave entitlements would not be practical. </p>
<p>But everyone else should get annual and sick leave, and minimum award wages should be high enough that low-wage workers don’t have to rely on the casual loading to get by. </p>
<p>The challenge should be about how we transition to that situation.</p><img src="https://counter.theconversation.com/content/210456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Over the years, David Peetz has received funding for research from the Australian Research Council, various unions and employers, state and national governments of both political flavours in Australia and overseas, the International Labour Organisation and the Organisation for Economic Cooperation and Development. He is presently employed by the Carmichael Centre at the Centre for Future Work at The Australia Institute.</span></em></p>In most wealthy nations all workers are entitled to annual leave. But that’s not the case in Australia – and the Albanese government’s reforms still won’t change that.David Peetz, Laurie Carmichael Distinguished Research Fellow at the Centre for Future Work, and Professor Emeritus, Griffith Business School, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2102722023-07-25T01:44:01Z2023-07-25T01:44:01ZEmployers will resist, but the changes for casual workers are about accepting reality<figure><img src="https://images.theconversation.com/files/538890/original/file-20230724-19-sj2thq.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C6338%2C3216&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Mick Tsikas/AAP</span></span></figcaption></figure><p>The Albanese government’s plan to improve the pathway to permanency for casual workers has employers worried, fearful their ability to employ casual workers will be restricted. </p>
<p>Even before the details had been released, there was certainty, in <a href="https://www.theaustralian.com.au/commentary/why-changes-to-casual-work-rules-risk-our-economy/news-story/c86c779d0bad8a5e5fc72b43bd8a41e7">the words</a> of Australian Industry Group chief executive Innes Willox, that there “is simply no justification for further changes to the regulation of casual work”. </p>
<p>In support of this argument are statistics suggesting the casualisation trend has peaked. But that’s by no means certain: the most recent data from the Australian Bureau of Statistics shows casualisation climbing again, with an overall rate of 23.5%.</p>
<hr>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=406&fit=crop&dpr=1 600w, https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=406&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=406&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=511&fit=crop&dpr=1 754w, https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=511&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/539144/original/file-20230725-21-it5mvb.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=511&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<hr>
<p>The counterargument is that entrenched casualisation doesn’t make the status quo right, and that the government’s proposed reforms will give greater recognition to reality. That is, if a worker is effectively working as a permanent employee, they have the right to be treated as such.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/albanese-government-to-make-it-easier-for-casuals-to-become-permanent-employees-210259">Albanese government to make it easier for casuals to become permanent employees</a>
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</em>
</p>
<hr>
<h2>Rise of the ‘permanent casual’</h2>
<p>While casual employment can often suit both employer and employee, the evidence does suggest some employers have exploited the legal ambiguities around definitions and obligations. </p>
<p>Australia’s National Employment Standards – the minimum safety net for all workers – say a casual employee who has worked for their employer for 12 months <a href="https://www.fairwork.gov.au/starting-employment/types-of-employees/casual-employees/becoming-a-permanent-employee">must be offered the option</a> to convert to full-time or part-time (permanent) employment. But there are significant exemptions, particularly for small business.</p>
<p>Close to 60% of Australia’s casual workers have been with their employer <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2122/TrendsCasualEmployment">for more than a year</a>, and 45% to 60% report <a href="https://www.aph.gov.au/About_Parliament/Parliamentary_departments/Parliamentary_Library/pubs/rp/rp2122/TrendsCasualEmployment">regular hours and pay</a>. This has resulted in the great Australian oxymoron of “the permanent casual”. </p>
<p>There is effectively a class of workers who don’t get holiday and sick pay, no matter how long or regularly they work, simply because their employer deemed them “casual” when they began.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">The truth about much 'casual' work: it's really about permanent insecurity</a>
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</em>
</p>
<hr>
<h2>The legal landscape</h2>
<p>Since the 1990s, workers and their union representatives have challenged these contrivances in industrial tribunals. Several of these decisions have been tested on appeal in the Federal Court.</p>
<p>In two cases in <a href="https://www.lexisnexis.com.au/en/insights-and-analysis/practice-intelligence/2020/workpac-v-rossato-the-death-of-the-long-term-casual">2018 and 2020</a>, the Federal Court agreed a worker’s employment status should based on the reality of their long-term employment relationship. That is, if there was continuity, based on extended, regular patterns of employment, a worker was a permanent employee. Similar principles applied to those deemed contractors. </p>
<p>However, appeals to the High Court <a href="https://www.corrs.com.au/insights/rossato-high-court-clears-the-air">in 2021</a> and <a href="https://www.minterellison.com/articles/high-court-clarifies-test-for-determining-employee-or-independent-contractor">in 2022</a> overturned these rulings. For the High Court, a formal stipulation of relations written in a contract were all that counted. The reality of life on the job was irrelevant. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-defines-casual-work-federal-court-ruling-highlights-a-fundamental-flaw-in-australian-labour-law-139113">What defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law</a>
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<h2>Common law versus parliament</h2>
<p>The High Court’s decisions – that formal freedom of contract has to be respected irrespective of the realities of bargaining power – reflect a long struggle between the common law and parliament in matters concerning working life.</p>
<p>In the 1700s and 1800s, workers were jailed for meeting to discuss wage campaigns. To this day, commercial common law considers the principle of “freedom of contract” as the foundation for all commercial relations – including those involving employment. Union activity is an illegal restraint of trade.</p>
<p>These principles have never been changed in the courts. It is only by statute (legislation passed by parliament) that trade unions and collective action by workers has been allowed. </p>
<p>The federal Employment and Workplace Relations Minister, Tony Burke, <a href="https://ministers.dewr.gov.au/burke/standing-casual-workers">says</a> the government “will legislate a fair, objective definition to determine when an employee can be classified as casual”, and no one will lose their casual status if that is their preference. </p>
<p>There will, no doubt, be opposition, with warnings about threats to productivity and suggestions economic conditions are too fragile.</p>
<p>But there’s a lot to be said in favour of giving greater recognition to reality.</p><img src="https://counter.theconversation.com/content/210272/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Buchanan has been an applied researcher in the university sector for more than 30 years. During this time he has undertaken applied research projects for governments of all persuasions, unions, NGOs and employers. His most recent projects have been for the NSW government, its workers' compensation authority (iCare) and the Queensland Nurses and Midwives Union. He is a member of the National Tertiary Education Union. From June 2021 until June 2023 he was a member of the NTEU bargaining team that settled the University of Sydney Enterprise Agreement. A key feature of that agreement concerns reducing casual academic employment by 20% and increasing the number of full time, continuing roles by 330 positions over the period 2023 to 2026. </span></em></p>There is effectively a class of Australian workers who don’t get holiday and sick pay, no matter how long or regularly they work, simply because their employer deemed them “casual” when they began.John Buchanan, Professor, Discipline of Business Information Systems, University of Sydney Business School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2010932023-03-08T04:02:08Z2023-03-08T04:02:08ZWhat are ‘reasonable’ hours? The Ryan-Rugg legal stoush may help the rest of us know<figure><img src="https://images.theconversation.com/files/514095/original/file-20230308-20-8v17vb.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4146%2C2073&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Joel Carrett/AAP</span></span></figcaption></figure><p>The court case against federal independent parliamentarian Monique Ryan by her former chief of staff Sally Rugg will, <a href="https://www.mauriceblackburn.com.au/media-centre/media-statements/2023/sally-rugg-v-dr-monique-ryan-statement/">according to Rugg’s lawyers</a>, open the door to legal action “by every Australian worker experiencing exploitation because of a contractual obligation to perform undefined ‘reasonable additional’ hours”.</p>
<p>Given the pecularities of the case, that’s unlikely. But the case will put the spotlight on an important, but rarely tested, question of what “reasonable” overtime means.</p>
<p>Rugg is seeking compensation in the Federal Court for “adverse action” by Ryan against her for refusing to work more than 70 hours a week. Ryan denies Rugg’s allegations. So far, it’s a classic battle of claim and counter-claim. </p>
<p>The outcome will turn on what “reasonable” means (as well as matters of evidence and credibility). There is no simple definition of this in Australian workplace law, even though it is pivotal to what the Fair Work Act says about working overtime.</p>
<p>Nor are there many tribunal or court decisions setting precedents to guide the Federal Court’s ruling. </p>
<h2>What the Fair Work Act says</h2>
<p>Under Section 62 of the <a href="https://www.legislation.gov.au/Details/C2023C00036">Fair Work Act</a>, an employer must not request or require a full-time employee to work longer than 38 hours a week, “unless the additional hours are reasonable”. </p>
<p>An employee may refuse to work additional hours “if the request is unreasonable”. This is essentially what Rugg says she sought to do. </p>
<p>What determines whether a request is reasonable or unreasonable? Section 62 sets out ten (non-exhaustive) factors that must be taken into account:</p>
<ul>
<li>any risk to employee health and safety from working the additional hours </li>
<li>the employee’s personal circumstances, including family responsibilities</li>
<li>the needs of the workplace or enterprise in which the employee is employed </li>
<li>whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours</li>
<li>any notice given by the employer of any request or requirement to work the additional hours</li>
<li>any notice given by the employee of his or her intention to refuse to work the additional hours</li>
<li>the usual patterns of work in the industry, or the part of an industry, in which the employee works</li>
<li>the nature of the employee’s role, and the employee’s level of responsibility </li>
<li>whether the additional hours accord with averaging terms that are applicable under an award or enterprise agreement or agreed with the individual employee</li>
<li>any other relevant matter.</li>
</ul>
<p>These considerations apply to all workers, regardless of their salary level or whether they are covered by awards or other industrial instruments. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/our-culture-of-overtime-is-costing-us-dearly-110566">Our culture of overtime is costing us dearly</a>
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</em>
</p>
<hr>
<h2>Past court decisions</h2>
<p>While case law is slim, one judgement almost certain to be mentioned is the Federal Court’s 2022 ruling in <em><a href="https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2022/512.html">Australasian Meat Industry Employees Union v Dick Stone Pty Ltd</a></em>. </p>
<p>This claim for compensation was brought by the meatworkers’ union on behalf of Samuel Boateng, a migrant from Ghana who was employed as a knife-hand and labourer by Dick Stone Meats in Sydney.</p>
<p>Boateng’s contract required him to work 50 “ordinary hours” a week (2am to 11.30am on weekdays, and 2am to 7am on Saturdays) plus “reasonable additional hours” as requested.</p>
<p>The union argued the contract contravened both the <a href="https://www.fairwork.gov.au/employment-conditions/awards/awards-summary/ma000059-summary">Meat Industry Award 2010</a> and the Fair Work Act. Justice Anna Katzmann agreed. She ruled it was possible for an employee to agree to ordinary work hours above 38 hours, but the onus was still on the employer to ensure those additional hours were reasonable. </p>
<p>She affirmed that:</p>
<blockquote>
<p>What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in section 62.</p>
</blockquote>
<p>In Boateng’s case, Katzmann concluded the requirement to work 12 hours more than the 38-hour standard was, in the overall circumstances, unreasonable. Three factors were given particular weight: </p>
<ul>
<li>the health and safety risks associated with lengthy shifts in a role requiring the use of knives </li>
<li>the fact the employee did not hold a managerial or supervisory role that might warrant additional hours</li>
<li>the fact the employee was not being paid overtime rates in accordance with the award.<br></li>
</ul>
<p>Further, while the 50-hour week aligned with the employer’s operational needs, this did not necessarily make the additional hours reasonable from the employee’s perspective. </p>
<h2>Rugg’s case is different</h2>
<p>The outcome in the Boateng case has limited application to a dispute involving a white-collar worker working long hours on high wages. </p>
<p>As Ryan’s chief of staff, Rugg was in a managerial role. Her base salary was $136,000, with a “top-up” allowance of about $30,000 for “reasonable additional hours” (but no overtime payments).</p>
<p>That said, the case does confirm general principles. What is “reasonable” involves a balancing of various factors, including the needs or circumstances of each party. The “weighting” given to different indicators might also vary depending on the individual job. There is no magic touchstone.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/most-of-us-who-work-long-hours-like-the-jobs-we-are-in-those-who-dont-change-jobs-quickly-122633">Most of us who work long hours like the jobs we are in. Those who don't, change jobs quickly</a>
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</em>
</p>
<hr>
<p>Much will turn on matters of degree. Factors that will weigh in Rugg’s favour are the amount of work hours required relative to her income, and her personal circumstances including her family responsibilities. Health and safety risks are likely to feature also. </p>
<p>Factors Ryan’s lawyers will seek to highlight are the nature of her employment, level of responsibility, and established patterns and standards of work within the industry – provided these can be verified. </p>
<p>The distinctive nature of Rugg’s position and demands means any judgement will have limited application to “regular” employees. </p>
<p>Nonetheless, the case will be significant in offering some rare (and much-needed) guidance both for employers and employees on what “reasonable additional work hours” means.</p><img src="https://counter.theconversation.com/content/201093/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A Federal Court ruling on Sally Rugg’s case against Monique Ryan should provide some much needed guidance on what “reasonable additional work hours” means.Giuseppe Carabetta, Associate Professor, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1958142022-12-05T19:05:01Z2022-12-05T19:05:01ZPay secrecy clauses are now banned in Australia; here’s how that could benefit you<figure><img src="https://images.theconversation.com/files/498903/original/file-20221205-26-6ww2mo.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5463%2C2719&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Do you work for an organisation that treats pay information like a state secret? Do you know what your coworkers get paid? Can you tell others what you earn?</p>
<p>Well, now you can, following the passing of the Albanese government’s “Secure Jobs, Better Pay Bill” reform package, which includes a ban on pay secrecy policies.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-the-compromise-ir-deal-means-for-wage-negotiations-and-pay-rises-195545">What the compromise IR deal means for wage negotiations, and pay rises</a>
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<p>The ban is primarily aimed at reducing gender-based pay differences – part of a larger suite of reforms that make gender equity a key principle of the Fair Work Act. </p>
<p>But there’s also reason to believe it should benefit other disadvantaged workers in both individual and collective pay negotiations. </p>
<h2>Secrecy and the gender pay gap</h2>
<p>The gender pay gap in Australia is <a href="https://www.wgea.gov.au/publications/australias-gender-equality-scorecard">currently 22.8%</a>. According to federal employment and workplace relations minister Tony Burke, pay secrecy clauses have long been used to <a href="https://ministers.dewr.gov.au/burke/secure-jobs-better-pay-bill">conceal gender pay discrepancies</a>:</p>
<blockquote>
<p>Banning them will improve transparency and reduce the risk of gender pay discrimination by allowing women to compare their pay with that of their co workers. Differences can be discussed with their manager without fear of punishment.</p>
</blockquote>
<p>International evidence support Burke’s claim. Studies in <a href="https://cep.lse.ac.uk/pubs/download/dp1750.pdf">the United Kingdom</a>, <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/irel.12109">the United States</a>, <a href="https://www.nber.org/system/files/working_papers/w25834/w25834.pdf">Canada</a> and <a href="https://www.nber.org/system/files/working_papers/w25435/w25435.pdf">Denmark</a> all report a decline in the gender pay gap as a result of legislation to promote pay transparency.</p>
<p><a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/irel.12109">US research</a> shows women’s wages in states prohibiting pay secrecy clauses are 4-12% higher (depending on how the data was analysed) than in states that allow secrecy clauses.</p>
<p>In Canada, <a href="https://www.nber.org/system/files/working_papers/w25834/w25834.pdf">pay secrecy law</a> reduced the gender pay gap between men and women by 20-40% (again depending on how data was analysed).</p>
<p>These findings are supported by studies of organisations that have dropped pay secrecy policies. A <a href="https://psycnet.apa.org/record/2015-15486-001">2019 study</a> covering approximately 9,000 US employees found women’s annual pay growth was 0.4% lower than for men under pay secrecy. This gap disappeared with greater transparency.</p>
<p>It’s possible that just ending secrecy clauses is enough to improve outcomes even without people disclosing how much they earn – that the prospect of pay information being shared is enough to focus an organisation on ensuring fair and equitable remuneration.</p>
<p>Secrecy, by contrast, means managers can make decisions <a href="https://journals.sagepub.com/doi/abs/10.1177/1548051812455240">they don’t have to justify</a> to employees. This heightens the risk of unconscious bias, favouritism, discrimination and stereotyping affecting pay decisions.</p>
<figure class="align-center ">
<img alt="Private and confidential letter" src="https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&rect=0%2C288%2C4585%2C2268&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498815/original/file-20221204-17-am0rvf.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Studies shows pay secrecy contributes to the pay gender gap.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
</figcaption>
</figure>
<h2>What about conflict?</h2>
<p>Not everyone wants to share their pay information. Some people are self-conscious about how it will affect their image. Some worry it will <a href="https://www.semanticscholar.org/paper/The-Pay-Transparency-Dilemma%3A-Development-and-of-Smit-Montag%E2%80%90Smit/3b5739795bde4cf1f6fb011efd2a607d6e87bb02">affect work relationships</a>.</p>
<p>It may be upsetting for coworkers in a similar role to discover they are paid less than you. It is even more upsetting to find out you’re paid less than them.</p>
<p>Employers argue that pay secrecy is needed to <a href="https://psycnet.apa.org/record/2015-54815-005">minimise conflict between employees</a>. This is based on the “<a href="https://www.journals.uchicago.edu/doi/abs/10.1086/519540">jealousy hypothesis</a>”, which says that employees reduce their work effort when they find out they are paid less than a colleague. </p>
<p>But such claims are overstated. In fact, employees are more likely to view restrictions on sharing pay information <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/1748-8583.12292">with suspicion</a> and as something driven by managerial self-interest, not the best interest of the employees. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/wages-and-women-top-albaneses-ir-agenda-the-big-question-is-how-labor-keeps-its-promises-183527">Wages and women top Albanese's IR agenda: the big question is how Labor keeps its promises</a>
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</em>
</p>
<hr>
<p>This is borne out by research showing pay secrecy leads workers to <a href="https://www.nber.org/system/files/working_papers/w24841/w24841.pdf">underestimate supervisors’ pay</a> (but overestimate coworkers’ pay).</p>
<p>Most employees deserve to be given more credit. The research shows they <a href="https://www.semanticscholar.org/paper/Reconsidering-Pay-Dispersion%27s-Effect-on-the-of-and-Trevor-Reilly/82a405461b4a5c578d3b157d375a7c81eddbacc1">understand and accept</a> pay differences that can be explained and justified according to work contribution and performance. </p>
<p>Further, studies report that greater pay transparency is associated with <a href="https://www.sciencedirect.com/science/article/abs/pii/S0014292117301162">higher employee performance</a> and <a href="https://journals.sagepub.com/doi/abs/10.1177/0886368719833215">job satisfaction</a>.</p>
<h2>Where to now?</h2>
<p>While the ban on secrecy clauses is primarily aimed at reducing the gender pay gap, it could deliver positive pay outcomes for other disadvantaged employees as well. </p>
<p>It’s a fundamental principle of economics that sharing of information contributes to more efficient markets. Removing pay secrecy therefore contributes to a more efficient labour market. </p>
<p>Bargaining freely with full information, employees are able to assess their employment options and make better informed choices. The decisions of individuals encourage organisations to ensure they have fair and equitable pay systems. </p>
<p>This should lead to greater fairness for all.</p><img src="https://counter.theconversation.com/content/195814/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Brown had received funding from the Australian Research Council.</span></em></p><p class="fine-print"><em><span>Leanne Griffin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Albanese government’s pay secrecy ban is meant reduce gender-based pay differences. It could help others too.Michelle Brown, Professor, Human Resource Management, The University of MelbourneLeanne Griffin, PhD, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1948182022-11-22T02:47:51Z2022-11-22T02:47:51ZChristmas may be safe, but three-year port dispute shows the IR system is full of holes<figure><img src="https://images.theconversation.com/files/496042/original/file-20221118-25-iapl0i.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C3834%2C1942&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Australia’s industrial relations umpire has delayed industrial action that would have crippled Australia’s ports in the lead-up to Christmas. </p>
<p>But the dispute in which it has intervened – one that has dragged on since 2019 – shows the need for reform of Australia’s collective bargaining system. </p>
<p>The Fair Work Commission last week intervened in the protracted dispute between tugboat operator Svitzer Australia and three maritime unions after the company declared its intention to “lock out” staff in a bid to force a resolution – either by the unions caving or by the commission using its powers to arbitrate outstanding matters.</p>
<p>Svitzer, a subsidiary of Danish shipping giant Maersk, <a href="https://www.afr.com/work-and-careers/workplace/svitzer-lockout-threatens-port-supply-chain-shutdown-20221114-p5by0t">employs about 600 staff</a> at 17 Australian ports. Its tugboats guide the arrival and departure of container ships <a href="https://www.marineinsight.com/shipping-news/unions-urge-maersks-return-to-negotiating-table-as-australian-court-blocks-controversial-svitzer-tug-lockout/">carrying about 75%</a> of Australia’s trade. The lockout would have prevented ships entering or leaving port.</p>
<p>Last Friday the full bench of the Fair Work Commission <a href="https://www.fwc.gov.au/documents/sites/svitzer-industrial-action/b2022-1726-decision-2022-fwcfb-209-2022-11-18.pdf">ordered a six-month suspension</a> on any industrial action by Svitzer or the three unions – the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), the Australian Maritime Officers Union (AMOU), and the Australian Institute of Marine and Power Engineers (AIMPE).</p>
<p>It did so using its powers to stop industrial action that threatens to cause significant damage to the economy or part of it.</p>
<p>However, the commission refused Svitzer’s application to terminate the notified lockout, an outcome that could have led to the commission arbitrating the outstanding matters in dispute. Arbitration appeared to be <a href="https://www.fwc.gov.au/documents/sites/svitzer-industrial-action/b2022-1726-submissions-svitzer-2022-11-17.pdf">Svitzer’s aim</a> but was opposed <a href="https://www.fwc.gov.au/documents/sites/svitzer-industrial-action/b2022-1726-outline-of-submissions-mua-2022-11-17.pdf">by the unions</a>.</p>
<h2>Background to the dispute</h2>
<p>Svitzer and the unions began negotiating a new enterprise agreement in late 2019. The company wanted changes to the agreement made in 2016 to give it greater flexibility in hiring staff. The unions opposed these changes on the basis they would lead to greater casualisation. </p>
<p>The process laid down by the Fair Work Act is to negotiate, with “protected industrial action” available to the parties to support their claims. </p>
<p>But the Act’s provisions make it particularly hard for port workers to take impactful industrial action, given the commission can suspend or terminate any action threatening to cause significant economic damage.</p>
<p>In February, the commission <a href="https://www.fwc.gov.au/document-search/view/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZGVjaXNpb25zLzIwMjIvMDMvUFI3MzkwNTIyMDgwOTg3MWU5NTU4OTQ1LTc2N2ItNGZkNi1iNTAzLTBkMmViOGJmMWVkYjIwYzBlOTE5LWUwZDgtNDU1ZC05ZDk5LTAxOTIzZjJhYzg5MS5wZGY1/1/141fd88f-c80f-472f-b0ca-6280b2c4fd1a/Svitzer">blocked 48-hour strikes</a> slated for ten ports in Western Australia, Queensland and New South Wales.</p>
<p>As a result, the unions have taken more low-level industrial action, such as work bans and limited stoppages, which are unlikely to attract the attention of the commission. </p>
<p>Svitzer’s decision to lock out workers recalls that of Qantas’s strategy in 2011, when the airline shut down its fleet to push the commission to arbitrate its dispute with unions over a new enterprise agreement. Qantas was widely considered the winner in the subsequent arbitration.</p>
<p>Svitzer’s motivation is to get rid of the 2016 enterprise agreement. Indeed in January it applied to have the commission terminate <a href="https://www.fwc.gov.au/document-search/view/aHR0cHM6Ly9zYXNyY2RhdGFwcmRhdWVhYS5ibG9iLmNvcmUud2luZG93cy5uZXQvZGVjaXNpb25zLzIwMjIvMDYvUFI3NDI0MjEyMzU3NzU4MjhkMDRhOTMyLTFkYTktNDE3YS04Yzc1LTlkZTQ2ZjMyOTY3ZWVmMGI2NmI2LWI5YWItNGRlMy04OGQ2LWZjNTJiNGRlNGZjNS5wZGY1/1/5ca199c2-eff1-4671-8600-d80788e49e52/2022%24%24FWC%24%241438">the agreement</a>, which remains in force until replaced. </p>
<p>Termination would mean Svitzer’s employees would be covered only by award provisions and individual contracts – an effective win for the company. (This application remains before the commission.)</p>
<h2>Will the government’s IR reforms help?</h2>
<p>With a settlement not really any closer, the Svitzer dispute demonstrates the failure of the Fair Work Act to provide a safety valve to resolve intractable disputes. </p>
<p>Employment and workplace relations minister Tony Burke has argued the Albanese government’s industrial relations reforms – yet to pass the Senate – will assist in a dispute like Svitzer. </p>
<p>They will help, but on their own will not be enough.</p>
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Read more:
<a href="https://theconversation.com/employers-say-labors-new-industrial-relations-bill-threatens-the-economy-denmark-tells-a-different-story-193311">Employers say Labor's new industrial relations bill threatens the economy. Denmark tells a different story</a>
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<p>The amendments will remove the ability to seek termination of an existing agreement while bargaining for a new agreement. This provision was not intended to be used as leverage during a dispute, as Svitzer has done. </p>
<p>The amendments also propose a new “intractable dispute mechanism”. This is different from current provisions because it does not require anyone to threaten or take potentially damaging industrial action before a party can seek arbitration by the commission.</p>
<h2>More fixes needed</h2>
<p>However, the bill does nothing to improve the Fair Work Act’s weak requirements for parties to bargain in “good faith”. This will continue to enable surface bargaining, leading to protracted disputes. </p>
<p>The provisions policing industrial action will still be among the most complex and costly in the developed world.</p>
<p>To ensure the Fair Work Commission is seen a fair and reasonable arbitrator, its members (appointed by the federal government) must also better reflect society, to restore faith in the institution for all parties concerned. Otherwise, unions may continue to resist arbitration, fearing the outcome will favour employers.</p>
<p>Moreover, despite the proposed expansion of multi-employer bargaining, the Albanese government has committed to maintaining the primacy of enterprise-level bargaining. </p>
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Read more:
<a href="https://theconversation.com/a-mandate-for-multi-employer-bargaining-without-it-wages-for-the-low-paid-wont-rise-193829">A mandate for multi-employer bargaining? Without it, wages for the low paid won't rise</a>
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<p>So suppressing workers’ pay and conditions will continue to be strategy to obtain a competitive advantage over other businesses. (Svitzer has argued its 2016 agreement means it cannot compete for port contracts.) </p>
<p>While the focus of our system remains the single enterprise, and workers’ pay and conditions can be used to undercut competitors, disputes like the one at Svitzer will continue to feature in the industrial landscape.</p><img src="https://counter.theconversation.com/content/194818/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shae McCrystal receives funding from the Australian Research Council. </span></em></p>The Albanese government’s industrial relations reforms will help avoid protracted industrial conflict, but more is needed.Shae McCrystal, Professor of Labour Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1938292022-11-13T19:03:41Z2022-11-13T19:03:41ZA mandate for multi-employer bargaining? Without it, wages for the low paid won’t rise<figure><img src="https://images.theconversation.com/files/493179/original/file-20221103-22-qh3t43.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5760%2C2931&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>“The fact is that the government that I lead was elected with a mandate to increase people’s wages,” Prime Minister Anthony Albanese <a href="https://www.abc.net.au/news/2022-11-10/labor-industrial-relations-mandate-multi-employer-bargaining/101635488">told the House of Representatives</a> last week, as parliament debated the government’s bill to increase access to multi-employer collective bargaining.</p>
<p>The bill passed the lower house last Thursday, after the government made changes that Employment Relations Minister Tony Burke said would ensure the “primacy” of enterprise bargaining. Further concessions may be needed to pass the Senate.</p>
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Read more:
<a href="https://theconversation.com/grattan-on-friday-government-throws-everything-at-securing-workplace-reforms-before-christmas-but-pocock-keeps-it-guessing-194348">Grattan on Friday: Government throws everything at securing workplace reforms before Christmas but Pocock keeps it guessing</a>
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<p>Employer groups argue the multi-employer bargaining provisions could return Australia to a 1970s-style system with high levels of industrial conflict. They claim it will lead unions to use sector-wide industrial action to achieve their goals. </p>
<p>Importantly, the Council of Small Business Organisations of Australia, which supports multi-employer bargaining in principle, has ended up opposing Labor’s provisions, saying they<a href="https://www.cosboa.org.au/post/cosboa-ir-statement-27-october-2022">make the system more complex</a>. </p>
<p>Nonetheless, Albanese has a point about Labor having a mandate. </p>
<p>He never made an explicit promise to expand multi-employer bargaining. He didn’t campaign on it. But he did promise <a href="https://theconversation.com/wages-and-women-top-albaneses-ir-agenda-the-big-question-is-how-labor-keeps-its-promises-183527">to lift stagnating wages</a> – particularly for those in low-paid, feminised sectors – and his government cannot deliver on that without fixing a broken industrial relations system.</p>
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<h2>Provisions already exist</h2>
<p>Multi-employer agreements are, in fact, meant to occur now, under the Fair Work Act passed by the Rudd Labor government in 2009.</p>
<p>The act <a href="https://www.fwc.gov.au/low-paid-authorisations">empowers</a> the industrial relations umpire (known as Fair Work Australia until 2013, now the Fair Work Commission) to authorise multi-employer bargaining in sectors where employees are low-paid and “have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level”.</p>
<p>The Rudd government included these provisions – known as the Low-Paid Bargaining Stream – because of the evidence that wages and conditions in areas such as child care, aged care, community services, security and cleaning had <a href="http://www.ilera-directory.org/15thworldcongress/files/papers/Track_2/Thur_W4_VAN%20WANROOY.pdf">stagnated under single-enterprise bargaining</a>.</p>
<p>Workers in these areas were disadvantaged by a range of factors. There were high rates of casual and part-time employment. Many employers were small or medium-sized, with limited resources and skills for bargaining. </p>
<p>In child care and aged care, wages were effectively set by a third party – the federal government, the main funder of services. Care workers were also more <a href="https://theconversation.com/labors-pledge-to-properly-pay-women-and-care-workers-is-a-start-but-it-wont-be-easy-182853">reticent to strike</a> as part of the bargaining process, because of the effect on clients.</p>
<h2>But they just don’t work</h2>
<p>In 12 years of the Fair Work Act, however, its multi-employer provisions have not led to a single bargain. </p>
<p>This is because the legislation requires the Fair Work commissioners to take into account complex considerations to determine if multi-employer bargaining is in the public interest. </p>
<p>A 2011 application by the Australian Nursing Federation to bargain with general practice clinics and medical centres <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2013fwc511.htm">was rejected</a> on the grounds nurses were not low-paid. </p>
<p>A 2014 application by the United Voice union to bargain with five security service employers in Canberra <a href="https://asset.fwc.gov.au/documents/decisionssigned/html/2014fwc6441.htm">was rejected</a> because three employers already had enterprise agreements. </p>
<p>Just one attempt has passed the first stage of obtaining authorisation. In 2010, United Voice and the Queensland branch of the Australian Workers’ Union <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb2633.htm">sought authorisation</a> to bargain on behalf of 60,000 workers with residential aged-care providers funded by the federal government. This was about 300 employers. </p>
<p>Fair Work Australia agreed, but also excluded workplaces that had previously made an enterprise agreement. This knocked out about half the employers, undermining the collective strength needed to get the federal government to agree to fund any wage increases. </p>
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Read more:
<a href="https://theconversation.com/employers-say-labors-new-industrial-relations-bill-threatens-the-economy-denmark-tells-a-different-story-193311">Employers say Labor's new industrial relations bill threatens the economy. Denmark tells a different story</a>
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<p>Whatever the merits of arguments over details in the government’s proposed bill, there should be no argument that the system needs reform.</p>
<p>Enterprise bargaining hasn’t delivered. Collective bargaining has become the exception rather than the norm. Over the past decade the share of the workforce covered by an enterprise agreement has halved, to <a href="https://australiainstitute.org.au/report/the-wages-crisis-revisited/">12% of all employees</a>. </p>
<p>Greater access to multi-employer bargaining is needed for fair wages and conditions for many employees, especially those in low-paid feminised sectors where staff shortages and high turnover are widely recognised to be threatening care quality and jeopardising the sustainability of the industries.</p><img src="https://counter.theconversation.com/content/193829/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona Macdonald has previously received funding from the Australian Research Council, the Victorian Government and various employer and trade union organisations. </span></em></p>The Albanese government cannot deliver on its promise to life wages for low-paid care work without expanding multi-employer agreements.Fiona Macdonald, Policy Director, Centre for Future Work at the Australia Institute and Adjunct Principal Research Fellow, RMIT University, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1927362022-11-09T19:00:18Z2022-11-09T19:00:18ZWe’re putting gender at the heart of the Fair Work Act, but there’s still no compassionate leave for abortions<figure><img src="https://images.theconversation.com/files/494332/original/file-20221109-16-z9h3ht.png?ixlib=rb-1.1.0&rect=287%2C257%2C3706%2C2065&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>This year’s landmark decision of the US Supreme Court to overturn the constitutional right to abortion established by the <a href="https://www.nytimes.com/2022/06/25/briefing/roe-v-wade-struck-down-explained.html">Roe versus Wade</a> judgement in 1973 leaves Australian women better off than those in the United States.</p>
<p>Abortion has been decriminalised in every Australian state and territory, and following amendments to the <a href="https://womensagenda.com.au/latest/senate-passes-two-days-of-paid-miscarriage-leave-for-parents/">Fair Work Act</a> last year, eligible women are entitled to two days of paid compassionate leave for miscarriages.</p>
<p>But the Act defines miscarriage very narrowly as the “<a href="https://www.fairwork.gov.au/taxonomy/term/530">spontaneous</a>” loss of an embryo or foetus – a definition that suggests other terminations will be excluded on the ground they are “non-spontaneous”.</p>
<p>Distinguishing between “spontaneous” and “non-spontaneous” pregnancy loss makes some types of loss look more worthy of support than others.</p>
<p>Labor says it wants to put <a href="https://www.smh.com.au/politics/federal/labor-to-introduce-ir-bill-with-pledge-to-get-wages-moving-20221018-p5bqr3.html">gender equity</a> at the heart of the Fair Work Act. This gap in the Act deals with a sensitive topic, but remaining silent on it will disadvantage some workers, perhaps as many as <a href="https://onlinelibrary.wiley.com/doi/full/10.1111/jan.15226">one quarter</a> of Australian women.</p>
<h2>‘Non-spontaneous’ as worthy as spontaneous</h2>
<p>Ending a pregnancy for personal or socio-economic reasons rather than because of an act of nature or a medical necessity does not make the physical and emotional toll any less.</p>
<p>Ignoring or minimising the grief, trauma and stigma that comes with an abortion threatens not only to undermine the reproductive rights of Australians but also to entrench gender inequality in the workplace.</p>
<p>It was the same in New Zealand when it introduced paid bereavement leave for miscarriage several months before Australia in March last year.</p>
<p>New Zealand National Party member of parliament Erica Stanford said that while she supported the bill, the grief and anguish and trauma experienced during an abortion and the fact that it was not recognised in the bill made her feel “<a href="https://www.theguardian.com/world/2021/mar/25/new-zealand-miscarriages-stillbirths-bereavement-leave">uncomfortable – personally uncomfortable</a>”.</p>
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Read more:
<a href="https://theconversation.com/balancing-work-and-fertility-isnt-easy-but-reproductive-leave-can-help-171497">Balancing work and fertility isn't easy – but reproductive leave can help</a>
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<p>A growing number of <a href="https://www.womenshealth.com.au/these-progressive-aussie-companies-offer-paid-leave-after-pregnancy-loss/">Australian companies</a> and the <a href="https://womensagenda.com.au/latest/nsw-government-to-introduce-paid-miscarriage-and-stillbirth-leave-in-public-sector/">NSW government</a> are also introducing paid leave for pregnancy loss, but it appears to be similarly limited.</p>
<p>The Australian Council of Trades Unions and the Health and Community Services Union are campaigning for a broader <a href="https://www.reproductivehealthleave.com.au/faq">reproductive health and wellbeing</a> leave that encompasses abortions as well as conditions including menstrual pain, perimenopause and menopause, endometriosis, infertility treatments, vasectomy, hysterectomy and gender transition.</p>
<h2>Portland, Oregon shows the way</h2>
<p>Perhaps surprisingly, there’s a model for how to make it work in the United States. </p>
<p>Prior to the overturning of Roe versus Wade, the city of Portland, Oregon made headlines in 2021 for being the <a href="https://www.opb.org/article/2021/10/25/portland-provides-bereavement-leave-for-employees-after-abortion/">first in the country</a> to introduce paid bereavement leave for public sector employees for miscarriage, stillbirth and other types of pregnancy loss, including abortion. </p>
<p>The move was <a href="https://blogs.bmj.com/bmjsrh/2021/11/11/abortion-bereavement-leave-is-part-of-abortion-care/">praised</a> by reproductive health policy experts for its capacity to destigmatise abortion and recognise the important role employers have to play in caring for their workers.</p>
<p>Australia has the potential to be the next world leader in gender work policy, building on our initial success in recognising pregnancy loss.</p><img src="https://counter.theconversation.com/content/192736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Australia’s Fair Work Act recognises “spontaneous” but not “non-spontaneous” pregnancy loss.Sydney Colussi, University of SydneyElizabeth Hill, Associate Professor Political Economy and Deputy Director, The Gender Equality in Working Life Research Initiative, University of SydneyMarian Baird, Professor of Employment Relations, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1835272022-05-24T02:38:20Z2022-05-24T02:38:20ZWages and women top Albanese’s IR agenda: the big question is how Labor keeps its promises<p>Industrial relations issues were front and centre when federal Labor last won office from opposition in 2007. The backlash against John Howard’s “Work Choices” reforms cost both his government and his own seat. Kevin Rudd and Julia Gillard’s detailed “Forward with Fairness” policy provided a blueprint for the Fair Work Act that is still in force today.</p>
<p>Workplace issues were nothing like as prominent in the 2022 election. Still, Labor campaigned on the need to address three key issues: wage stagnation, insecure jobs, and gender inequality. </p>
<p>Lifting wages will be a priority for the Albanese government, to help ease the cost of living. But it may also be pressured by both unions and the Greens to go further in addressing problems with the “Fair Work” system.</p>
<h2>Tackling the wages crisis</h2>
<p>There are many reasons for Australia’s low wage growth over the past decade, not least a <a href="https://theconversation.com/despite-record-vacancies-australians-shouldnt-expect-big-pay-rises-soon-180416">loss of bargaining power for workers</a>. Clearly though the problem is not going to fix itself. Policy action <a href="https://www.futurework.org.au/wages_crisis_will_continue_without_active_wage_boosting_policies_report">is needed</a>. The question is whether Albanese and his colleagues have the answers.</p>
<p>In the first instance, they will look for help from the Fair Work Commission in its upcoming annual wage review. Albanese has <a href="https://www.theguardian.com/australia-news/2022/may/12/anthony-albanese-narrows-scope-of-pledge-to-support-51-pay-rise-to-match-inflation">expressed support</a> for a minimum wage increase that at least keeps pace with inflation. That could potentially benefit everyone in the workforce whose pay is set by, or linked to, an award. </p>
<p>Beyond that, there are plans to <a href="https://www.alp.org.au/policies/closing-the-gender-pay-gap">improve pay equity for women</a>. Proposed reforms include requiring large employers to report their gender pay gap publicly, prohibiting pay secrecy clauses, and broadening the Fair Work Commission’s power to redress the undervaluation of work in female-dominated industries.</p>
<p>Labor has also undertaken to improve the enforcement of minimum wage laws. It has committed to introducing criminal penalties for “wage theft” – something the Morrison government <a href="https://www.abc.net.au/news/2021-03-18/industrial-relations-changes-pass-parliament-casual-work/13259566">promised but failed to do</a> – and ensure workers have a “<a href="https://www.tonyburke.com.au/speechestranscripts/2021/11/15/speech-address-to-the-australian-labour-law-association">quick and easy way</a>” to recover underpayments.</p>
<p>What is less clear is whether the Albanese government can bring itself to set a lead for the private sector, both by paying public servants more and by supporting decent wage growth in the many sectors affected by public funding and procurement. </p>
<p>Doing so could have a rich economic and social dividend. But the cost will be a challenge, especially with Labor <a href="https://www.alp.org.au/policies/aged-care">already committed</a> to supporting and funding significant pay increases for aged-care workers.</p>
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<a href="https://theconversation.com/real-wages-are-shrinking-these-figures-put-it-beyond-doubt-183343">Real wages are shrinking, these figures put it beyond doubt</a>
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<h2>Enterprise bargaining</h2>
<p>Then there is the <a href="https://www.afr.com/work-and-careers/workplace/pandemic-worsens-decline-in-enterprise-bargaining-20210920-p58t4f">decline of enterprise bargaining</a>, the process supposed to be the main way of gaining wage rises under the Fair Work system. Just 11% of private-sector employees are now covered by a current (non-expired) enterprise agreement.</p>
<p>Albanese has spoken of a <a href="https://www.smh.com.au/politics/federal/spirit-of-consensus-albanese-holds-out-promise-of-economic-reform-to-lift-wages-20220505-p5aixx.html">business-union summit</a> – echoing the “consensus” approach taken by the Hawke Labor government in the 1980s – to discuss how to revitalise the bargaining system. </p>
<p>It could certainly be simplified, and much could be gained from a <a href="https://www.afr.com/work-and-careers/workplace/the-cure-for-workplace-strife-20191203-p53gbb">new emphasis on co-operation</a>. Yet much as the new prime minister would like to channel Bob Hawke and rediscover the virtues of <a href="https://dictionary.cambridge.org/dictionary/english/tripartite">tripartism</a> – with employer organisations, trade unions and governments working together – it will take a herculean effort to find consensus.</p>
<p>Many in the labour movement would like to see a reversion to industry-level bargaining, at least in sectors where enterprise negotiations are impractical, as well as a greater role for the tribunal in breaking deadlocks. It will be fascinating to see if <a href="https://australiainstitute.org.au/post/as-collective-bargaining-erodes-in-australia-solutions-from-other-countries-could-strengthen-bargaining-and-lift-wages/">those ideas</a> gain any traction over the next three years.</p>
<h2>Making work less precarious</h2>
<p>In contrast to its silence on bargaining and the role of trade unions, Labor has <a href="https://www.alp.org.au/policies/secure-australian-jobs-plan">clear plans</a> to address insecure forms of work. Among other things, it has promised to:</p>
<ul>
<li><p>limit casual and fixed-term employment to jobs that are genuinely temporary or irregular</p></li>
<li><p>ensure labour-hire workers are paid the same as those directly employed by the business to which they are assigned, and</p></li>
<li><p>empower the Fair Work Commission to set minimum wages and conditions for “employee-like” workers, including those finding work through digital labour platforms such as Uber or Deliveroo.</p></li>
</ul>
<p>The complexity of many of these issues should not be underestimated. There are many long-term casuals, for example, who prefer to take a pay loading in lieu of leave entitlements they may never use.</p>
<p>Allowing the Fair Work Commission to make an award for certain types of gig worker will not fully address the potential for “sham contracting” arrangements <a href="https://www.afr.com/work-and-careers/workplace/later-high-court-backs-freedom-to-contract-in-major-ruling-20220209-p59uyi">opened up by recent High Court decisions</a>. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">The truth about much 'casual' work: it's really about permanent insecurity</a>
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<p>It will be interesting to see if the new government moves on these reforms immediately, or perhaps looks for some of them to be explored in greater depth by its promised <a href="https://anthonyalbanese.com.au/media-centre/a-new-labor-playbook-for-national-productivity-reforms-acci">white paper</a> on the labour market.</p>
<h2>A focus on women at work</h2>
<p>Post-election analysis has rightly focused on the <a href="https://theconversation.com/women-stormed-the-2022-election-in-numbers-too-big-to-ignore-what-has-labor-pledged-on-gender-183369">crucial role played by female voters and candidates</a>. The new government will be doubly keen to implement the parts of its platform that address issues of particular significance to women. </p>
<p>Besides the policies already mentioned on pay equity and insecure work, there is a <a href="https://www.alp.org.au/policies/cheaper-child-care">pledge of cheaper childcare</a>, plus a new right to paid family and domestic violence leave. </p>
<p>Labor will also fully implement recommendations from the Australian Human Rights Commission’s <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work report</a> on sexual harassment. That includes amending the Sex Discrimination Act to create a <a href="https://theconversation.com/explainer-what-is-a-positive-duty-to-prevent-workplace-sexual-harassment-and-why-is-it-so-important-167430">positive duty on employers</a> to take reasonable measures to eliminate sexual harassment.</p>
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Read more:
<a href="https://theconversation.com/explainer-what-is-a-positive-duty-to-prevent-workplace-sexual-harassment-and-why-is-it-so-important-167430">Explainer: what is a 'positive duty' to prevent workplace sexual harassment and why is it so important?</a>
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<p>Possibly the greatest challenge, however, will be to make a difference in the workplace over which the government has most control – parliament house. Staffers and MPs are entitled to expect not just protection from violence and harassment but <a href="https://theconversation.com/the-jenkins-review-has-28-recommendations-to-fix-parliaments-toxic-culture-will-our-leaders-listen-172858">greater respect and accommodation</a>.</p>
<p>It will be a very public forum in which to judge the new government’s commitment to fair pay and conditions for working women.</p><img src="https://counter.theconversation.com/content/183527/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Stewart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Lifting wages will be a priority for the Albanese government to ease the cost of living. But the unions and the Greens are likely to push for more changes to tackle problems with the Fair Work system.Andrew Stewart, John Bray Professor of Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1691372021-10-05T05:31:47Z2021-10-05T05:31:47ZYour rights under Victoria’s ‘authorised worker’ vaccine mandate: an expert explains<figure><img src="https://images.theconversation.com/files/424608/original/file-20211004-18-yt8384.jpg?ixlib=rb-1.1.0&rect=0%2C243%2C3460%2C1714&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Daniel Pockett/AAP</span></span></figcaption></figure><p>Racing to hit vaccination targets and lift the restrictions making Melbourne
the world’s most locked-down city, the Victorian government has announced plans to
make COVID19 vaccinations mandatory for an estimated
1.25 million of the state’s <a href="https://www.abs.gov.au/statistics/labour/employment-and-unemployment/labour-force-australia/latest-release">3.5 million</a> workers.</p>
<p>The proposed order will apply to all “authorised providers” and “authorised workers” whose work requires contact with others. By October 15 they must show proof they have received or booked their first vaccination, or have a medical exemption from a authorised practitioner. Anyone without an exemption must be fully vaccinated by November 26. </p>
<p>Separate deadlines apply for those subject to Victoria’s existing mandatory vaccination directions covering health care, construction workers and teachers. </p>
<h2>Who are the ‘authorised’ providers and workers?</h2>
<p>An authorised provider or worker is any business or person exempt from the orders to shut or work at home during lockdown.</p>
<p>The “authorised providers” list includes supermarkets, restaurants and cafes providing takeaway services, bottle shops, banks, post offices, news agencies, petrol stations, child care services, schools and mobile pet-grooming services.</p>
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Read more:
<a href="https://theconversation.com/who-cant-have-a-covid-vaccine-and-how-do-i-get-a-medical-exemption-168371">Who can’t have a COVID vaccine and how do I get a medical exemption?</a>
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<p>The “authorised workers” list covers more than 70 categories. It includes health practitioners, emergency workers, essential services workers, those who work in courts or the administration of justice, manufacturing, public transport, professional athletes, zoo workers, faith leaders, actors and parliamentarians. </p>
<p>In short, if your work can’t be done from home, your job is <a href="https://www.coronavirus.vic.gov.au/authorised-provider-and-authorised-worker-list">most likely on the list</a>.</p>
<h2>Will there be any exemptions?</h2>
<p>The mandate is yet to be finalised, so the precise scope of
exemptions is unclear. </p>
<p>However, the government has said
there will be an exemption for those unable to be vaccinated on medical grounds, as <a href="https://www.health.gov.au/resources/publications/atagi-expanded-guidance-on-temporary-medical-exemptions-for-covid-19-vaccines">determined</a> by the Australian Technical Advisory Group on Immunisation. </p>
<p>The list of accepted medical reasons is short. Any exemption must be certified by an authorised medical practitioner.</p>
<h2>How will the mandate become law?</h2>
<p>The state government has the power to make public health directions including mandating vaccines under Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/public-health-and-wellbeing-act-2008/043">Public Health and Wellbeing Act</a> and associated state-of-emergency powers. </p>
<p>It is the same mechanism by which vaccinations for sectors such as construction have been mandated.</p>
<p>Prior to the COVID pandemic, similar provisions have enabled the Department of Health to direct hospitals and health providers to require workers to be vaccinated against diseases such as influenza and hepatitis B. </p>
<p>This was achieved through amendments to Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/health-services-act-1988/173">Health Services Act</a> and <a href="https://www.legislation.vic.gov.au/in-force/acts/health-services-act-1988/173">Ambulance Services Act.</a> </p>
<h2>Doesn’t this conflict with the Fair Work Ombudsman’s advice?</h2>
<p>No. The Fair Work Ombudsman has previously issued guidance on the conditions that make it “lawful and reasonable” for an individual employer to require that employees be vaccinated. </p>
<p>That guidance includes “tiers” of work to help assess if vaccination was justifiable. But these aren’t relevant if a direct law – in this case a public health direction – mandates vaccination.</p>
<h2>Is there any legal recourse?</h2>
<p>There is a legal challenge currently before Victoria’s Supreme
Court. This has been lodged by couple Belinda and Jack Cetnar. Their core
argument is that mandates are discriminatory and contravene human
rights. </p>
<p>One difference between this challenge and those being made in the <a href="https://www.supremecourt.justice.nsw.gov.au/Pages/sco2_caseofinterest/Casesofinterest.aspx">NSW Supreme Court</a> against the NSW government’s vaccine mandates is that Victoria has a <a href="https://www.humanrights.vic.gov.au/legal-and-policy/victorias-human-rights-laws/the-charter/">Charter of Human Rights and Responsibilities</a>. </p>
<p>At the hearing setting the trial date for the Cetnars’ challenge, Justice Melinda Richards noted the Cetnars had grounds to argue their case under the charter but queried other arguments they presented in their written documentation. </p>
<p>These included the mandate contravening the Commonwealth Biosecurity Act and the Nuremberg Code. </p>
<h2>So what about discrimination and human rights?</h2>
<p>Vaccination status is not a prohibited ground under discrimination law, so the mandate cannot be challenged as unlawful discrimination on this basis. </p>
<p>Adverse treatment on the basis of health or disability may amount to unlawful discrimination in other circumstances, but the new rules allow for this. </p>
<p>Human rights law allows for limitations on human rights where necessary to protect public health and the fundamental right – to life. However, such restrictions must be necessary and proportionate to the risk and balanced against individual rights.</p>
<p>This principle is reflected in Victoria’s <a href="https://www.legislation.vic.gov.au/in-force/acts/charter-human-rights-and-responsibilities-act-2006/014">Charter of Human Rights and Responsibilities</a>, and in the position of bodies such as the World Health Organization.</p>
<p>In December 2020, at press conference, WHO’s immunisation director Kate O'Brien said the organisation <a href="https://www.who.int/publications/m/item/covid-19-virtual-press-conference-transcript---7-december-2020">didn’t favour vaccine mandates</a>. </p>
<p>However, a WHO policy brief <a href="https://www.who.int/publications/i/item/WHO-2019-nCoV-Policy-brief-Mandatory-vaccination-2021.1">published in April</a> notes vaccine mandates “can be ethically justified, as they are crucial to protecting the health and well-being of the public”. This comes with important caveats:</p>
<blockquote>
<p>While interfering with individual liberty does not in itself make a policy intervention unjustified, such policies raise a number of ethical considerations and concerns and should be justified by advancing another valuable social goal, like protecting public health.</p>
</blockquote>
<p>Ultimately it may be necessary for the courts to determine whether the new
rules strike an appropriate balance. </p>
<p>However, it seems unlikely any
court will overturn such a mandate, given vaccination is
effective, the mandate will be temporary, apply only to onsite
work, provide medical exemptions, will alleviate pressure on the
health system and help ease existing restrictions (which also
infringe on individual liberty).</p>
<h2>Who will be responsible for enforcing these rules?</h2>
<p>Workers covered by the proposed mandate will be required when working to carry an authorised worker permit confirming they have been vaccinated. Businesses will be responsible for issuing these permits, and for ensuring all employees onsite have a permit. </p>
<p>If an authorised officer attends a workplace and finds workers without a valid permit, both employers and employees can be fined.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-are-the-protests-against-victorias-construction-union-all-about-168367">What are the protests against Victoria's construction union all about?</a>
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<p>The penalties are the same as other <a href="https://online.fines.vic.gov.au/News/Covid-restrictions-and-penalties-in-Victoria">breaches of restrictions or directions</a>. On-the-spot fines of up to $1,817 can be issued to individuals and up to $10,904 for businesses for not having a permit. </p>
<p>A court can impose a fine of up to $21,808 on individuals and $109,044 on employer for issuing worker permit to an employee not meeting the permit requirements.</p>
<hr>
<p><em>Correction: this article has been updated to clarify the vaccine mandate has not yet been passed into law.</em></p><img src="https://counter.theconversation.com/content/169137/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Victoria has mandated COVID vaccinations for an estimated 1.25 million workers. Employment law expert Giuseppe Carabetta explains the legalities.Giuseppe Carabetta, Senior Lecturer, Sydney University Business School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1674342021-09-09T01:08:22Z2021-09-09T01:08:22ZQantas fights on against court ruling it unlawfully sacked 2,000 workers<figure><img src="https://images.theconversation.com/files/419927/original/file-20210908-14-ypmndg.jpg?ixlib=rb-1.1.0&rect=91%2C0%2C4918%2C2444&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Qantas has tugged at many Australians’ heart strings with its advertising campaign about reuniting family and friends. It dangles the prospect of travelling overseas, and of thousands of Australians still stranded overseas coming home. </p>
<p>But the airline is fighting hard to not bring back thousands of jobs it unlawfully outsourced during the pandemic. After losing a Federal Court case over sacking of 2,000 ground crew in 2020, it continues to vigorously oppose reinstating the workers, with an appeal in the works.</p>
<p>Its marketing may be heartwarming, but its approach to its workforce is hardheaded. </p>
<p>Granted, its business has been clobbered by border closures and travel restrictions. Last month it announced a loss for <a href="https://www.abc.net.au/news/2021-08-26/qantas-loss-remains-large-even-before-sydney-lockdown/100408510">2020-21 of A$1.73 billion</a>. Just as it was getting its domestic operations back into gear, most interstate travel was halted by the Delta outbreak.</p>
<p>But many businesses have faced similar dilemmas since the pandemic began 18 months ago. Few have been as harsh as Qantas in dealing with employees.</p>
<h2>A confrontational approach</h2>
<p>Since standing down <a href="https://www.abc.net.au/news/2020-03-19/qantas-has-just-stood-down-20000-staff.-how-can-they-do-that/12069964">20,000 of its 30,000 staff</a> in March 2020, Qantas has taken a typically <a href="https://labourlawdownunder.com.au/?p=880">confrontational approach</a> to wages and entitlements. </p>
<p>For example, it precluded stood-down workers from accessing their sick leave, even if they had contracted coronavirus while working, and then vigorously defended this decision in the courts.</p>
<p>It adopted a narrow interpretation of its payment obligations to employees under the JobKeeper scheme. It has also taken a top-down approach to mandating <a href="https://www.theguardian.com/business/2021/aug/18/qantas-mandates-full-covid-19-vaccination-for-all-its-employees">COVID-19 vaccinations for staff</a>, in contrast to the more consultative approach of <a href="https://www.afr.com/companies/transport/virgin-mandates-covid-19-vaxx-for-staff-20210830-p58n2y">rival Virgin Australia</a>. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/qantas-has-grounds-to-mandate-vaccination-but-most-blanket-policies-wont-fly-166416">Qantas has grounds to mandate vaccination, but most blanket policies won't fly</a>
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<p>But its most grievous action has been to use the opportunity of the pandemic to permanently shed itself of about 2,000 mostly unionised workers.</p>
<p>This move came in the context of making <a href="https://www.abc.net.au/news/2020-08-25/qantas-plans-to-cut-another-2500-ground-crew-jobs/12593454">8,500 jobs</a> redundant. In the case of the 2,000 jobs carried out by baggage handlers, tug drivers and cleaners, however, their work wasn’t disappearing; it was being outsourced to third-party providers at ten Australian airports. </p>
<p>The fact Qantas undertook these mass sackings while receiving JobKeeper, a program designed to ensure businesses retained their employees, ensured controversy would attend its decision. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/qantas-cutbacks-signal-hard-years-before-airlines-recover-141522">Qantas cutbacks signal hard years before airlines recover</a>
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</p>
<hr>
<h2>Breach of the Fair Work Act</h2>
<p>On behalf of the 2,000 employees who lost their jobs, the Transport Workers Union challenged the airline’s decision to outsource ground-handling staff in the Federal Court. </p>
<p>To make its case, the union hired Maurice Blackburn employment lawyer Josh Bornstein, who helped the <a href="https://australianaviation.com.au/2020/09/twu-hires-waterfront-lawyer-to-battle-qantas/">Maritime Union of Australia</a> win the waterfront dispute of 1998, when stevedoring company Patrick Corporation locked out and sacked union members en masse.</p>
<figure class="align-center ">
<img alt="Private security guards and dogs keep watch at Patrick Corporation's dock at Sydney's Darling Harbour on April 8 1998, the day after the company fired all its 1,400 dock workers." src="https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=423&fit=crop&dpr=1 600w, https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=423&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=423&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/419918/original/file-20210908-7579-1dwrgsd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Private security guards and dogs keep watch at Patrick Corporation’s dock at Sydney’s Darling Harbour on April 8 1998, the day after the company fired all its 1,400 dock workers.</span>
<span class="attribution"><span class="source">Rick Rycroft/AP</span></span>
</figcaption>
</figure>
<p>Relying on statutory provisions similar to those used to great effect in the waterfront dispute, the union argued Qantas had seized a “vanishing window of opportunity” provided by the pandemic to outsource all ground staff. </p>
<p>The Federal Court’s ruling, <a href="https://www.abc.net.au/news/2021-07-30/qantas-twu-ground-staff-federal-court-judgment/100336418">made on July 30</a>, largely agreed with the union. It found a reason for the airline’s decision to outsource the workers was to prevent them from exercising important workplace rights; namely the right to engage in collective bargaining and to take protected industrial action. </p>
<p>This placed Qantas in breach of the Fair Work Act.</p>
<h2>Opposing reinstatement</h2>
<p>The legal battle is far from over. The Transport Workers’ Union has asking the Federal Court to order the reinstatement of the 2,000 ground crew employees and compensate them for losses suffered as a result of Qantas’s unlawful conduct. </p>
<p>Qantas has other ideas. At a case hearing on Wednesday, Qantas continued to vigorously oppose reinstatement. It also lodged an application for leave to appeal the Federal Court’s July decision, and wants the court to halt any further consideration of reinstatement until an appeal is determined. </p>
<p>This makes the prospect of the sacked workers getting their jobs back in the near future unlikely. </p>
<p>But even though this case has a long way to play out, the Federal Court’s ruling against Qantas represents an important and overdue check on decades of business outsourcing initiatives that have undermined workers’ job security and driven down wages. Such business strategies eliminate the need for management to negotiate wages with workers. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-airline-industry-hasnt-collapsed-but-thats-the-only-good-news-for-overseas-travel-158867">The airline industry hasn't collapsed, but that's the only good news for overseas travel</a>
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<p>Through outsourcing, a company can unilaterally set the price it is willing to pay for the work. It can advise a labour hire provider that, if the price isn’t acceptable, it will seek competitive tenders. The downward pressure is ultimately borne by the workers.</p>
<p>We’ll have to wait to see if the Qantas workers get their jobs back. But in the meantime the ruling should give any other employer tempted to take advantage of COVID reason to think again.</p><img src="https://counter.theconversation.com/content/167434/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Forsyth receives funding from the Australian Research Council. He is a member of the Advisory Committees of the Centre for Future Work (Australia Institute) and the Carmichael Centre (Australia Institute).</span></em></p>Few Australian companies have been as harsh as Qantas in dealing with employees through the pandemic.Anthony Forsyth, Professor of Workplace Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1634922021-06-29T19:58:11Z2021-06-29T19:58:11ZCan the government get its workplace harassment laws right? Its bill is a missed opportunity<p>It’s been over a year since Sex Discrimination Commissioner Kate Jenkins’ report on sexual harassment in the workplace in Australia, <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work</a>, was released.</p>
<p>After a long delay, the Morrison government published its <a href="https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect">response</a> to the report in April, and followed up by quietly <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1306">introducing a bill</a> to legislate some of these changes last week. </p>
<p>The bill proposes changes primarily to the Sex Discrimination Act and the Fair Work Act. While some of these changes are welcome and long overdue, the bill doesn’t go nearly far enough to protect women or prevent harassment at work.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-governments-roadmap-for-dealing-with-sexual-harassment-falls-short-what-we-need-is-radical-change-158431">The government's 'roadmap' for dealing with sexual harassment falls short. What we need is radical change</a>
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<h2>Major changes to the Sex Discrimination Act</h2>
<p>There are three major proposed changes to the Sex Discrimination Act that focus on sexual harassment. </p>
<p>First, protection would be expanded to cover harassment based on a person’s sex, such as comments or actions that “seriously demean” women, in addition to sexual harassment. </p>
<p>Second, the time limit to make a claim under the act would be extended from six months to two years. </p>
<p>Third, more workers would be protected from sexual harassment beyond just direct employees and contractors. Subcontractors, labour hire workers, outworkers, trainees, unpaid work experience students and volunteers would also be included. </p>
<p>The sexual harassment and sex-based harassment provisions would also be extended to cover members of parliament, as well as their staff and judges at both state and federal levels for the first time. These groups are not currently subject to the Sex Discrimination Act. </p>
<p>State public servants would be covered under the act (joining federal public servants). Previously, they would have only been subject to state anti-discrimination laws.</p>
<h2>Threshold for demeaning language too high</h2>
<p>There is much to commend in these proposed amendments, but other changes are expressed in a way that is likely to limit their scope or effect. </p>
<p>The extension of protections to cover sex-based harassment, such as misogynist language that demeans or degrades women, is a very important step forward. But it has not been included in the Fair Work Act changes (discussed below). Moreover, it would require a higher standard than the sexual harassment provisions to prove. </p>
<p>To succeed in a case involving sex-based harassment, for instance, it would be necessary to prove not only that the behaviour is offensive, humiliating or intimidating, but also that the conduct is <em>seriously demeaning</em>. </p>
<p>This unfortunately suggests sex-based harassment that is not seriously demeaning is acceptable. </p>
<p>Discrimination and harassment often happen through frequently repeated, small or nuanced transgressions, rather than singular, dramatic actions. A threshold of “seriously demeaning” is too high.</p>
<h2>More workplace protections — but only to a point</h2>
<p>The proposed changes to the Fair Work Act make clear that sexual harassment is a workplace health and safety issue, like bullying. This means sexual harassment will be treated as a form of bullying, which can be addressed through a stop order made by the Fair Work Commission. </p>
<p>In addition, the Fair Work Act would be amended to make clear sexual harassment falls within the definition of serious misconduct and can be a legitimate reason for dismissal from employment. </p>
<p>Importantly, the government rejected Jenkins’s recommendation to include language that expressly prohibits sexual harassment in the Fair Work Act. </p>
<p>This means a person who is subjected to sexual harassment will not be able to seek compensation under the Fair Work Act; that person would still need to bring an claim under anti-discrimination laws at the state or federal level. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1407967040195883011"}"></div></p>
<p>Another problem is the changes to the Fair Work Act would not include the new provision for sex-based harassment. The bill does not see sex-based harassment as a workplace health and safety issue, or as serious misconduct.</p>
<p>Both of these omissions demonstrate an ongoing reluctance to fully integrate anti-discrimination principles into workplace law. </p>
<p>Jenkins’s report recommended that employers should be required to take reasonable and proportionate measures to eliminate both sexual harassment and sex-based discrimination at work, but the government has resisted this, claiming work health and safety laws are sufficient. </p>
<p>With such a requirement under the law, employers could be held liable — including for compensation — if they do not make sufficient efforts to prevent harassment or discrimination in their workplace.</p>
<p>Legal claims under anti-discrimination laws can be riskier than those under the Fair Work Act because different rules apply about paying the other side’s legal costs if you lose the case. As a result, those who are harassed at work are still being denied access to the most effective procedures to bring their claims.</p>
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Read more:
<a href="https://theconversation.com/in-the-wake-of-the-dyson-heydon-allegations-heres-how-the-legal-profession-can-reform-sexual-harassment-142560">In the wake of the Dyson Heydon allegations, here's how the legal profession can reform sexual harassment</a>
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<p>Another problem is the Fair Work Act would only protect against sexual harassment while a person is “at work”. </p>
<p>This overlooks the use of social media outside working hours, which is now a major avenue for bullying and harassment. It also might not cover work-related harassment that occurs off-site or out of hours. </p>
<p>The government has introduced some significant changes in the bill, which are to be commended. But in some respects, this is a missed opportunity to fully embrace Jenkins’s report and implement comprehensive change. </p>
<p>The narrow drafting of this bill and, in particular, the failure to fully protect against sex-based harassment should be addressed before it is adopted.</p><img src="https://counter.theconversation.com/content/163492/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Beth Gaze receives research funding from the Gender Equality Commission (Victoria). </span></em></p>The bill put forth last week would bring welcome reforms to the Sex Discrimination Act and Fair Work Act. But it doesn’t go nearly far enough to protect women or prevent harassment at work.Beth Gaze, Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1550332021-02-10T19:12:12Z2021-02-10T19:12:12ZLow wage, low growth: Porter’s industrial relations bill is only good in parts<p>The government’s <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6653">Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill</a> presently before parliament was drafted at the end of a six-month consultative process that brought together employer and employee representatives to chart what the prime minister hoped would be “<a href="https://www.pm.gov.au/media/address-national-press-club-260520">a practical reform agenda, a job making agenda</a>”. </p>
<p>The agenda seems to have been confined to matters the <a href="https://theconversation.com/morrison-government-invites-unions-to-dance-but-employer-groups-call-the-tune-139469">government and business</a> had already marked for attention.</p>
<p>Whatever potential there might have been for consensus on several important issues has <a href="https://theconversation.com/so-much-for-consensus-morrison-governments-industrial-relations-bill-is-a-business-wish-list-151668">plainly not been realised</a>.</p>
<p>Nevertheless, in a <a href="https://www.aph.gov.au/DocumentStore.ashx?id=cd9110a6-ae0e-41a3-9db4-096942efcd10&subId=701278">submission</a> to the Senate inquiry into the bill, and with the backing of 18 other labour law academics, we have expressed support for many of its provisions, even though there are details we are disappointed with and elements we strongly oppose, not least for their potentially negative impacts on wage growth and job security.</p>
<p>To be supported are greater penalties for employers who underpay workers, including criminal liability for dishonest and systematic conduct, and a new small claims process that would enable the Fair Work Commission to resolve payment disputes more quickly and cheaply, which we think could be improved.</p>
<p>We concentrate here on three concerns – the changes to agreement-making; to certain forms of employer-driven flexibility; and to the regulation of casual employment.</p>
<h2>Enterprise agreement-making</h2>
<p>The most contentious proposal is a new exception to the “better off overall test” (BOOT), which ordinarily ensures enterprise agreements cannot set pay and other conditions below award standards.</p>
<p>At present, the Commission can approve agreements that fail the BOOT, but only when they are not contrary to the public interest and only in “exceptional” circumstances. </p>
<p>The new exception would operate much more broadly, with no requirement to show unusual circumstances, pandemic or not. Although the exception would last for only two years, agreements approved under it could operate indefinitely.</p>
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Read more:
<a href="https://theconversation.com/so-much-for-consensus-morrison-governments-industrial-relations-bill-is-a-business-wish-list-151668">So much for consensus: Morrison government's industrial relations bill is a business wish list</a>
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<p>We characterise the change as “tearing a gaping hole in the award safety net”. </p>
<p>Even if the Fair Work Commission took a narrow view of the exception, advisers would be lining up to encourage employers to give it a go, dangling the enticing prospect of “simplifying” pay and rostering , and reducing labour costs.</p>
<p>The bill also proposes to “simplify” the agreement-making process and make it harder for unions and others not directly involved to object to their approval.</p>
<p>This would weaken the few procedural safeguards that the Fair Work Act provides for workers, especially since there is no requirement for bargaining or negotiation to take place. </p>
<p>There would be no clear process for ensuring an agreement was genuinely made, and it would be harder to identify substandard deals, or to challenge the approval of agreements approved by small and unrepresentative groups of workers.</p>
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Read more:
<a href="https://theconversation.com/five-questions-and-answers-about-casual-employment-105745">Five questions (and answers) about casual employment</a>
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<p>The sunsetting of agreements made before the Rudd government’s 2009 Fair Work Act (some of them made under “<a href="https://www.findlaw.com.au/faqs/1916/what-was-workchoices-and-why-was-it-so-unpopular.aspx">WorkChoices</a>” is welcome and long overdue. </p>
<p>The bill would also allow “greenfields agreements” of up to eight years in duration - rather than the usual four - for construction work on certain major projects. </p>
<p>Employees engaged during that period would have no say on their pay and conditions and no right to strike – and some of these “agreements” could be made without union consent. </p>
<p>Under International Labour Organisation principles of freedom of association, workers in this position have to be afforded access to timely mediation and arbitration to resolve disputes, something the bill does not do.</p>
<h2>New forms of flexibility for employers</h2>
<p>Two other worrying proposals would permit certain employers to enter into “simplified additional hours agreements” with permanent part-time employees, and to issue “flexible work directions”.</p>
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<a href="https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=969&fit=crop&dpr=1 600w, https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=969&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=969&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1218&fit=crop&dpr=1 754w, https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1218&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/383454/original/file-20210210-15-148ammm.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1218&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Part-time workers could be offered extra hours, but without penalties.</span>
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<p>The former are a method of contracting out overtime pay rates, and would disproportionately affect women, who are <a href="https://www.abs.gov.au/statistics/people/people-and-communities/gender-indicators-australia/latest-release">almost three times more likely than men to be working part-time</a>. </p>
<p>Even if some ended up being offered extra hours of work, they would come without the usual compensation for antisocial or irregular hours – and they would most likely be taken from casuals, meaning a net reduction in wage bills.</p>
<p>The proposed “flexible work directions” would extend and expand some of the special powers granted to employers under JobKeeper to redeploy workers. </p>
<p>But they could be used in situations which need have nothing to do with recovery from the pandemic, including by employers who were never eligible for JobKeeper.</p>
<p>While both changes would initially be limited to certain industries, the bill allows them to be extended by regulation to all award-covered workers. </p>
<p>No compelling evidence has been presented to justify they are needed. Nor has the government explained why the Fair Work Commission should not continue to be responsible for managing these issues on an industry by industry basis through awards.</p>
<h2>Casual employment</h2>
<p>Casual employment fell during the initial stages of the pandemic, but then <a href="https://d3n8a8pro7vhmx.cloudfront.net/theausinstitute/pages/3411/attachments/original/1609197941/Year-End_Labour_Market_2020.pdf?1609197941">rebounded strongly</a>. Around one in four Australian employees works as a casual, lacking benefits such as paid annual leave or sick leave, but generally entitled in return to a pay loading of 25%.</p>
<p>In practice, <a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">many casuals have long-term engagements</a>, with none of the features usually associated with casual work. Among them are labour hire workers deployed not as “temps”, but to work at host firms alongside (or instead of) directly-hired employees with much higher pay and conditions.</p>
<p>The bill’s provisions respond to <a href="https://theconversation.com/what-defines-casual-work-federal-court-ruling-highlights-a-fundamental-flaw-in-australian-labour-law-139113">recent court decisions</a> which have raised the prospect of billions of dollars in unpaid leave entitlements being due to workers misclassified as casuals.</p>
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Read more:
<a href="https://theconversation.com/what-defines-casual-work-federal-court-ruling-highlights-a-fundamental-flaw-in-australian-labour-law-139113">What defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law</a>
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<p>The bill proposes to determine whether a worker is a casual purely by reference to what their contract says, not the reality of their engagement. And it would allow employers who have misclassified casuals to deduct from what they now owe their employees any loading they have previously paid.</p>
<p>After 12 months in a job, casuals would need to have their employment assessed. In certain circumstances, the employer would have to offer to make them permanent.</p>
<p>We agree on the need for a clear definition of “casual”, but the definition proposed would entrench the practice of “permanent casuals” doing jobs which are not truly casual, without necessarily preventing legal challenges to some of those arrangements.</p>
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Read more:
<a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">The truth about much 'casual' work: it's really about permanent insecurity</a>
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<p>Long-term casual employment does indeed suit many workers. But their lack of job security may have both individual and societal consequences. </p>
<p>That has been made clear during the pandemic, when workers without paid leave entitlements in “essential” jobs (such as cleaning and security for quarantine hotels, or aged care) have had to keep working with <a href="https://theconversation.com/workplace-transmissions-a-predictable-result-of-the-class-divide-in-worker-rights-143896">adverse consequences for public health</a>.</p>
<p>We also note that the bill will substantially increase administrative costs for employers, in support of a right to convert to permanent that few long-term casuals are likely to even try to exercise, given the loss of loading typically involved.</p>
<p>In our submission to the Senate inquiry, we have suggested that the bill could be improved in a number of ways, including by making the definition of casual employment genuinely objective, requiring offers of conversion to permanent employment after six months rather than 12, and not shielding an employer from liability if it should have known it was misclassifying a permanent worker as casual.</p>
<h2>Getting wages moving in the right direction</h2>
<p>Even before the pandemic, it was widely accepted that wage stagnation was sapping the Australian economy. <a href="https://theconversation.com/theres-an-obvious-reason-wages-arent-growing-but-you-wont-hear-it-from-treasury-or-the-reserve-bank-122041">Whatever the reasons</a>, it was clear that <a href="https://theconversation.com/the-five-not-so-easy-steps-that-would-push-wage-growth-higher-107510">something needed to be done</a> to get wages growth back above 3%.</p>
<p>If anything, the need is even greater now as we try to rebuild confidence and boost consumer spending.</p>
<p>Yet at a time when the share of national income going to profits rather than labour is <a href="https://www.smh.com.au/business/the-economy/pandemic-legacy-wage-earners-have-never-collected-a-smaller-share-of-the-economy-20201204-p56krt.html">still continuing to rise</a>, the government is proposing changes that would not just <a href="https://d3n8a8pro7vhmx.cloudfront.net/theausinstitute/pages/3417/attachments/original/1611873084/Omnibus_IR_Bill_and_Non-Union_EAs.pdf?1611873084">suppress wage growth</a>, but actually allow employers to cut some forms of pay and conditions.</p>
<p>The reforms would also entrench casual work - one of the largest forms of insecure employment.</p>
<p>As <a href="https://theconversation.com/anthony-albaneses-plan-to-boost-protections-for-australians-in-insecure-work-154953">Labor’s new platform on job security</a> recognises, this is a challenge that business, organised labour and government ought to be working together to tackle rather than exacerbate.</p>
<p>Whatever the positive elements of the new industrial relations bill, its crackdown on “wage theft” among them, its overall effect would be to take Australia even more firmly down the road of low-wages and low-growth. </p>
<p>It is not the road we should be taking.</p><img src="https://counter.theconversation.com/content/155033/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Stewart receives funding from the Australian Research Council. </span></em></p><p class="fine-print"><em><span>Adriana Orifici is undertaking a PhD with funding from an Australian Government Research Training Program (RTP) Scholarship.</span></em></p><p class="fine-print"><em><span>Joellen Riley Munton is affiliated with the Australian Institute of Employment Rights.</span></em></p><p class="fine-print"><em><span>Shae McCrystal receives funding from The Australian Research Council. </span></em></p><p class="fine-print"><em><span>Tess Hardy receives funding from the Australian Research Council. </span></em></p>It’ll be harder for employers to underpay workers, but easier to offer them extra hours without penalty pay.Andrew Stewart, John Bray Professor of Law, University of AdelaideAdriana Orifici, Lecturer, Monash University, Monash UniversityJoellen Riley Munton, Professor of Law, University of Technology SydneyShae McCrystal, Professor of Labour Law, University of SydneyTess Hardy, Senior Lecturer in Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1520162020-12-15T19:11:10Z2020-12-15T19:11:10ZWhy the Morrison government’s ‘double-dipping’ gambit fails the pub test<figure><img src="https://images.theconversation.com/files/374989/original/file-20201215-17-1d826v1.jpg?ixlib=rb-1.1.0&rect=565%2C87%2C3728%2C2497&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>It’s almost unimaginable: an Australian government proposes a law that would wipe out billions of dollars of employers’ entitlements. </p>
<p>Even more unimaginable: it does so on the basis of mistakes made by employees. </p>
<p>Yet right now a “Black Mirror” scenario lies before Australia’s federal parliament, in the form of the Morrison government’s “ominbus” industrial relations bill. </p>
<p>It proposes to extinguish entitlements owed to workers due to the mistakes made by employers. If passed, thousands of <a href="https://www.smh.com.au/business/workplace/casuals-paid-less-than-permanent-workers-despite-loadings-20181117-p50gpi.html">low-paid workers</a> stand to lose billions of dollars in entitlements. </p>
<p>But that’s not even the worst thing that can be said of the bill. Worse still is the cynicism of its premise, the need to “fix” a problem that does not really exist.</p>
<p>To appreciate the depth of that cynicism, let’s recap the smoke and mirrors that have made “double-dipping” – the “horror scenario” of paying workers misclassified as casual employees both a 25% casual loading <em>and</em> paid leave entitlements – a hot-button issue.</p>
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Read more:
<a href="https://theconversation.com/so-much-for-consensus-morrison-governments-industrial-relations-bill-is-a-business-wish-list-151668">So much for consensus: Morrison government's industrial relations bill is a business wish list</a>
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<h2>Paying the costs of employer mistakes</h2>
<p>Action is needed, the government claims, to address the “<a href="https://www.afr.com/policy/economy/casual-double-dipping-ruling-a-disaster-20200521-p54v89">uncertainty</a>” over employers incurring up to A$39 billion liabilities because of a Federal Court decision in May 2020. </p>
<p>Known as <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2020/84.html?context=1;query=workpac;mask_path=au/cases/cth/FCAFC"><em>Rossato v Workpac</em></a>, the case was unusual because the defendant, labour-hire company WorkPac – with the <a href="https://www.smh.com.au/politics/federal/not-fair-christian-porter-joins-battle-over-casuals-back-pay-20200807-p55jkr.html">federal government’s support</a> – funded the legal action against it by former mine worker Robert Rossato. </p>
<p>Rossato argued Workpac should have employed him as a permanent worker, rather than a casual worker, given his regular work roster. Workpac wanted the Federal Court to hear the case so its lawyers could try some arguments not used in Workpac’s unsuccessful defence of a 2018 court case (involving similar claims by fly-in-fly-out worker Paul Skene). </p>
<p>One of Workpac’s new defences was that Rossato (and workers in similar situations), even if misclassified as casual employees, had been paid a casual loading that should be “set off” against leave entitlements now accrued to them. </p>
<p>As Andrew Stewart <a href="https://theconversation.com/what-defines-casual-work-federal-court-ruling-highlights-a-fundamental-flaw-in-australian-labour-law-139113">summarised at the time</a>: “In other words, if he was entitled to the benefits he claimed, he had already been paid for them.”</p>
<p>The Federal Court rejected this argument comprehensively. </p>
<p>In finding for Rossato, it ruled the casual loading paid any worker wrongly classified as a “casual employee” did not offset their separate entitlement to paid leave, as guaranteed to all permanent employees under the Fair Work Act. </p>
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Read more:
<a href="https://theconversation.com/the-truth-about-much-casual-work-its-really-about-permanent-insecurity-151687">The truth about much 'casual' work: it's really about permanent insecurity</a>
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<h2>Different entitlement types</h2>
<p>Presumably the Federal Court must have had its reasons – and indeed it did. It laid them out in terms so clear it is hard to see where uncertainty arises.</p>
<p>The key distinction, said the court, was that casual loading and paid leave are two different kinds of entitlements.</p>
<p>The casual loading is a monetary entitlement supposed to compensate casual employees for the downsides of being casuals. Casual employees are meant to get 25% more than what a permanent employee would be paid, though research suggests in reality the loading is <a href="https://www.smh.com.au/business/workplace/casuals-paid-less-than-permanent-workers-despite-loadings-20181117-p50gpi.html">often neglible</a>. </p>
<p>Does the loading cover casual employees not accruing annual and other leave? That is a matter of confusion, with differing approaches taken by courts and industrial tribunals. It some cases, the casual loading might be framed as compensating for the disadvantages of casual employment. Sometimes the loading might simply be paid due to prevailing “market rates”, as a wage premium to attract workers to jobs with few other benefits.</p>
<p>Whatever the circumstances, the Federal Court stressed that paid leave was not just another monetary entitlement when it came to permanent employees (including those wrongly classified as casuals). </p>
<p>As the judges put in their Rossato ruling, there is a “temporal dimension” to paid leave.</p>
<p>That is, it was an entitlement to an absence from work “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2020/84.html?context=1;query=workpac;mask_path=au/cases/cth/FCAFC">in order to facilitate rest and recreation</a>”. This made it qualitatively different to a cash entitlement.</p>
<p>So the Federal Court’s ruling was clear. There was no uncertainty. It saw no double-dipping. Its ruling did not require employers to pay twice. It required them to honour different types of employee entitlements.</p>
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Read more:
<a href="https://theconversation.com/what-defines-casual-work-federal-court-ruling-highlights-a-fundamental-flaw-in-australian-labour-law-139113">What defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law</a>
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<h2>Return of a living dead argument</h2>
<p>Now the federal government is arguing what WorkPac (with the government’s backing) argued unsuccessfully to the court. Its industrial relations bill proposes making that losing argument the law. </p>
<p>If passed, courts will be required to deduct the value of any casual loading paid to misclassified casual employees from any claim they now have to compensation for not being being given the leave entitlements owed to permanent employees. </p>
<p>It creates a “back door” for employers to cash out paid leave obligations, leaving even more workers in the “employees without leave entitlement” category.</p>
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<p>In doing so, the bill doesn’t just strip rights from wrongly classified casual workers. It undermines a fundamental principle in Australia’s national employment standards – reflected by the Fair Work Act having limits on cashing out paid leave.</p>
<p>These limits recognise leave entitlements aren’t just a personal benefit. The the whole community benefits; and 2020 has shown the community costs of failing to ensure all workers have paid leave entitlements. </p>
<p>Workers in risky jobs – such as <a href="https://theconversation.com/workplace-transmissions-a-predictable-result-of-the-class-divide-in-worker-rights-143896">aged care and meat processing</a> – without sick leave or other entitlements have been clear transmission vectors for COVID-19 outbreaks such as that which enveloped Melbourne.</p>
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Read more:
<a href="https://theconversation.com/workplace-transmissions-a-predictable-result-of-the-class-divide-in-worker-rights-143896">Workplace transmissions: a predictable result of the class divide in worker rights</a>
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<p>These limits have safeguarded low-paid workers signing away these rights out of financial need in lop-sided bargains.</p>
<p>If there’s only lesson one to be learned in the months since the Federal Court handed down its ruling, it’s this. Further impoverishing the value of leave entitlements is just about the last thing any COVID-inspired industrial relations reform should being doing.</p><img src="https://counter.theconversation.com/content/152016/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joo-Cheong Tham is the Deputy Chair of the Migrant Workers Centre Incorporated. He has received funding from the Australian Research Council. He has also received funding from the Australian Council for Trade Unions to organise a symposium commemorating the Centenary of the International Labour Organisation.</span></em></p>The federal government’s industrial relations bill will fix a problem that doesn’t exist by making a failed legal argument the law.Joo-Cheong Tham, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1394722020-06-03T02:45:02Z2020-06-03T02:45:02ZWorking from home remains a select privilege: it’s time to fix our national employment standards<figure><img src="https://images.theconversation.com/files/339115/original/file-20200602-133860-me0tew.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5000%2C3293&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The number of Australians working from home has soared during the COVID-19 crisis. Latest data from the <a href="https://www.abs.gov.au/ausstats/abs@.nsf/Previousproducts/4940.0Main%20Features229%20Apr%20-%204%20May%202020?opendocument&tabname=Summary&prodno=4940.0&issue=29%20Apr%20-%204%20May%202020&num=&view=">Australian Bureau of Stastistics</a> shows 46% of the workforce worked from home in late April and early May. </p>
<p>By comparison, the bureau’s <a href="https://www.abs.gov.au/ausstats/abs@.nsf/mf/6333.0">2019 data</a> showed slightly less than a third saying they “regularly worked from home” – a number likely inflated by those catching up on work from the office. </p>
<p>For many this has been the first real taste not just of full time teleworking, but any flexible working arrangements – something that under minimum employment laws remain a privilege for a select few. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/50-years-of-bold-predictions-about-remote-work-it-isnt-all-about-technology-135034">50 years of bold predictions about remote work: it isn't all about technology</a>
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<p>But it will be important for all organisations to keep extending flexible working arrangements to as many staff as possible as we move to the next phase of our COVID-19 response. </p>
<p>While social distancing rules are now relaxing, until there’s a vaccine we still need work flexibility for as many people as possible. To ease, for example, morning and afternoon congestion in central business districts and on public transport.</p>
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Read more:
<a href="https://theconversation.com/as-coronavirus-restrictions-ease-heres-how-you-can-navigate-public-transport-as-safely-as-possible-138845">As coronavirus restrictions ease, here's how you can navigate public transport as safely as possible</a>
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<p>Over the past few months we’ve been been part of a research team looking at how organisations have coped with the abrupt shift to remote work. Our findings are promising. But they also highlight a deficiency in Australia’s national employment standards, which do little to encourage employers embracing flexible working arrangements.</p>
<h2>Still more a privilege than a right</h2>
<p>Your rights to flexible working arrangement are likely to be set out most strongly in your favour in an enterprise agreement. Or, if you don’t have one of those, an industry award. Or possibly an individual contract. Provisions will differ.</p>
<p>If you aren’t covered by any of those, you’re out of luck. </p>
<p>The right to flexible working arrangement set down in the <a href="https://www.fairwork.gov.au/employee-entitlements/national-employment-standards">National Employment Standards</a> – the minimum entitlements employers must give all employees – is no right at all.</p>
<p>Instead, the <a href="https://www.fairwork.gov.au/employee-entitlements/flexibility-in-the-workplace/flexible-working-arrangements">Flexible Working Arrangements</a> standard stipulates only that: </p>
<blockquote>
<p>Some employees who have worked for the same employer for at least 12 months can request flexible working arrangements, such as changes to hours, patterns or locations of work.</p>
</blockquote>
<p>To even have the right to make that request, you must also:</p>
<ul>
<li>be the parent or carer of a child who is school-aged or younger</li>
<li>have a disability, or be a carer<br></li>
<li>be 55 years and older </li>
<li>be experiencing violence from a family member, or supporting family or household members experiencing family violence. </li>
</ul>
<p>If you meet these criteria, you have the right to receive a response to your request within 21 days. If your request is rejected, your employer <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb5753.htm">must detail the reasons</a> for the refusal, “including the business grounds”. </p>
<p>What constitutes “reasonable business grounds” is broad. It includes your employer deciding your request: </p>
<ul>
<li>is too costly</li>
<li>can’t be made to fit with the working arrangements of other employees</li>
<li>“would not be practical” to accommodate</li>
<li>will result in a “significant loss of productivity” or “significant negative impact on customer service”.</li>
</ul>
<p>The Fair Work Commission does have the power to adjudicate a complaint about an employer’s grounds for refusing a request. But <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/requests-for-flexible-working-arrangements">according to the Fair Work Ombudsman</a>: </p>
<blockquote>
<p>This generally only happens if the parties to the dispute have agreed in an employment contract, enterprise agreement or other written agreement for that to occur.</p>
</blockquote>
<h2>Tracking the transition</h2>
<p>The COVID-19 pandemic has provided us and our colleagues at Curtin University with an opportunity to see how organisations have managed with a big shift to teleworking. </p>
<p>These arrangements they might easily have been rejected previously on “reasonable business grounds”.</p>
<p>Our research involved interviewing 34 human resources and industrial relations managers and implementers. They worked for organisations that included a hospital, a school, a financial services company, and multiple mining companies, government departments and not-for-profit organisations. Their employee numbers ranged from as few as five to as many as 60,000. </p>
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<strong>
Read more:
<a href="https://theconversation.com/working-from-home-what-are-your-employers-responsibilities-and-what-are-yours-133922">Working from home: what are your employer's responsibilities, and what are yours?</a>
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<p>We interviewed them between April and May to see how their organisations coped with the move. Thirty said they were unprepared for such a large-scale transition. Yet after four weeks, 27 were enthusiastic about the benefits and wanted flexible work arrangements to continue. </p>
<p>As the senior human resource advisor of a mining company, put it: </p>
<blockquote>
<p>I don’t have kids and before I did not think about working from home. Now I would like to do it at least for one day a week and definitely see I can 100% get my work done from home. </p>
</blockquote>
<h2>Amending the Fair Work Act</h2>
<p>Our findings suggest employers have little to fear from strengthening flexible working arrangements in the National Employment Standards. </p>
<hr>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/coronavirus-could-spark-a-revolution-in-working-from-home-are-we-ready-133070">Coronavirus could spark a revolution in working from home. Are we ready?</a>
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<p>The onus on employees to prove the “business grounds” for employers’ refusal should be eased. The Fair Work Act should be amended so all employees can have access to challenge a refusal for flexible work arrangements. </p>
<p>Greater flexibility is both possible and productive for most workplaces. Now it’s also in a wider social interest. </p>
<hr>
<p><em>The authors would like to acknowledge the work of their colleagues John Burgess, Eileen Aitken Fox, Amy Tian, Jane Coffey and Chahat Guptar in contributing to the research.</em></p><img src="https://counter.theconversation.com/content/139472/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Scott is affiliated with the National Tertiary Education Union and is the union's Curtin University branch vice-president (academic).</span></em></p><p class="fine-print"><em><span>Kantha Dayaram and Steve McKenna do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Our research shows most organisations have adapted well to staff working from home. But there’s a hole in workplace laws we need to address.Kantha Dayaram, Associate Professor, Curtin UniversityScott Fitzgerald, Curtin UniversitySteve McKenna, Associate Professor of Management, Curtin UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1391132020-05-22T03:55:26Z2020-05-22T03:55:26ZWhat defines casual work? Federal Court ruling highlights a fundamental flaw in Australian labour law<figure><img src="https://images.theconversation.com/files/336929/original/file-20200522-57725-1l65oqw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>A much-awaited <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2020/84.html">ruling from the Federal Court</a> has confirmed long-term casual workers can dispute their status and seek payments for entitlements such as annual leave. </p>
<p>The decision has been attacked by employer groups for allowing casual workers to “double dip” – because they are paid a loading to compensate for the lack of such benefits.</p>
<p>In response, federal industrial relations minister Christian Porter, has <a href="https://www.theguardian.com/australia-news/2020/may/21/employer-groups-call-for-reform-after-court-finds-casual-workers-may-be-owed-paid-leave">indicated</a> the government will consider legislation to address these concerns.</p>
<p>The most likely response will be changing how casual work is defined in the Fair Work Act. This is an issue long overdue for resolution. Despite millions being employed on a casual basis, Australian labour laws provide no solid definition of casual work.</p>
<h2>Proliferating ‘permanent casuals’</h2>
<p>About a quarter of Australian workers – <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/6291.0.55.003Feb%202020?OpenDocument">more than 2.6 million people</a> – are employed as casuals (or at least were before COVID-19).</p>
<p>They get no annual leave, personal leave, notice of termination nor redundancy pay. To make up for that, they are generally entitled to a 25% pay loading.</p>
<p>Casual work is usually thought of as temporary, irregular or uncertain in nature. Some casual positions do fit that description. But research quoted in a <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3541.htm">2017 Fair Work Commission case</a> found 60% of casuals had regular rosters and were employed for at least six months. Just over a quarter (28%) had jobs lasting more than three years. </p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/self-employment-and-casual-work-arent-increasing-but-so-many-jobs-are-insecure-whats-going-on-100668">Self-employment and casual work aren't increasing but so many jobs are insecure – what's going on?</a>
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<p>One reason for so many “permanent casuals” is that awards and enterprise agreements typically define a casual as anyone engaged and paid as such. This has encouraged the belief that, so long as a worker is labelled a casual by their employer, that’s what they are – no matter how stable and predictable their job.</p>
<h2>Looking past the casual label</h2>
<p>The Federal Court, however, has decided otherwise.</p>
<p>While the Fair Work Act does not define the term “casual”, the court affirmed previous rulings by deciding it should be given its “general law” meaning, with the “essence of casualness” being the:</p>
<blockquote>
<p>“absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work”.</p>
</blockquote>
<p>Its ruling this week against labour-hire company <a href="https://www.workpacgroup.com/">WorkPac</a> is tied to a <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2018/131.html">2018 ruling against </a> the company.</p>
<p>That case was brought against Workpac – which employs more than 6,000 workers on behalf of companies including Rio Tinto, Glencore, Wesfarmers, Anglo American and BHP Billiton – by fly-in-fly-out worker Paul Skene.</p>
<p>Skene worked for two years as a dump truck operator at two Queensland coal mines. Although engaged as a casual, he successfully argued his set rosters – working 12-hour shifts on a “seven days on, seven days off” basis – meant he should be treated as a permanent worker. As such, he was entitled to annual leave, and to be compensated for not getting it.</p>
<h2>This week’s decision</h2>
<p>Rather than appealing that decision to the High Court, Workpac took the unusual step of funding another former mine worker, Robert Rossato, to pursue similar claims against it for unpaid leave and public holiday pay. It did this to test out some defences it had failed to run in the <em>Skene</em> case.</p>
<p>Workpac argued, with the support of the federal government, that even if Rossato was really a permanent worker. it could “set off” the casual loading Rossato had been receiving. In other words, if he was entitled to the benefits he claimed, he had already been paid for them.</p>
<p>The Federal Court has rejected this argument conclusively, ruling Rossato, like Skene, should have been treated as a permanent worker. </p>
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<strong>
Read more:
<a href="https://theconversation.com/five-questions-and-answers-about-casual-employment-105745">Five questions (and answers) about casual employment</a>
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<p>The central problem, the judges said, was that Workpac was effectively seeking permission to “prepay” entitlements that, under the Fair Work Act, are meant to be given or paid for in very different ways.</p>
<p>After the <em>Skene</em> decision, the Morrison government introduced a <a href="https://www.legislation.gov.au/Details/F2018L01770">regulation</a> it <a href="https://www.smh.com.au/business/workplace/nsw-and-victoria-facing-biggest-hit-from-double-dipping-casuals-20190222-p50zq2.html">claimed would clarify</a> the legal position on the “set off” argument. </p>
<p>However, the Federal Court found the regulation had no legal effect – an unsurprising ruling given the government’s own <a href="https://www.legislation.gov.au/Details/F2018L01770/Explanatory%20Statement/Text">official explanation</a> always made this clear!</p>
<h2>Where to from here?</h2>
<p>It seems highly likely Workpac and/or the Commonwealth will appeal the <em>Rossato</em> decision to the High Court. </p>
<p>If so, the main issue will probably be whether casual status should be determined according to the “essence” of a work arrangement, or the label an employer has chosen to put on it.</p>
<p>In the meantime, the many businesses with long-term casuals will be worried about the prospect of retrospective claims for unpaid entitlements that could <a href="https://cdn.aigroup.com.au/Workplace_Relations/Attachments/Attachment_WorkPac_decision_sept2018_draft2.pdf">run into billions of dollars</a>. </p>
<p>But it’s important to keep those concerns in perspective.</p>
<p>If long-term employees have fluctuating patterns of work, that may be enough to justify their casual status, even if they have an expectation of ongoing employment. A <a href="http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2019/1085.html">2019 ruling</a> by the Federal Court confirming the casual status of an aircraft engineer suggests as much. </p>
<p>Whatever the position in the mining industry, where casuals often work full-time under set rosters, it may be easier to defend the labels placed on the much larger number of casuals who work in sectors such as retail and hospitality.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/if-we-want-workers-to-stay-home-when-sick-we-need-paid-leave-for-casuals-138431">If we want workers to stay home when sick, we need paid leave for casuals</a>
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<p>There is no excuse for the failure of the current and previous governments (both Coalition and Labor) to define casual employment and put appropriate limits on its use. </p>
<p>Opinions will reasonably differ on how the complex issue of long-term casual employment is to be addressed. But both businesses and workers deserve better than the present state of uncertainty.</p><img src="https://counter.theconversation.com/content/139113/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In addition to his academic role, Andrew Stewart is a consultant with the law firm Piper Alderman.</span></em></p>The Federal Court of Australia has rejected the notion workers can be employed as ‘permanent casuals’.Andrew Stewart, John Bray Professor of Law, University of AdelaideLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1377042020-05-04T04:26:31Z2020-05-04T04:26:31ZCoronavirus redundancies are understandable, but there are alternatives<figure><img src="https://images.theconversation.com/files/332201/original/file-20200504-42946-i6lpm6.jpg?ixlib=rb-1.1.0&rect=988%2C184%2C2082%2C1214&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Redundancies are attractive to organisations in crisis. Although the payouts cost money upfront, they can reshape the remaining workforce to make it leaner and more fit for purpose. </p>
<p>On the other hand they can demoralise that workforce, and they are far from good for the rest of the economy.</p>
<p>One alternative, available to the employers of as many as 6.6 million Australians for the next six months, is <a href="https://theconversation.com/that-estimate-of-6-6-million-australians-on-jobkeeper-it-tells-us-how-it-can-be-improved-137237">JobKeeper</a>.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/quick-dirty-effective-there-was-no-time-to-make-jobkeeper-perfect-135195">Quick, dirty, effective: there was no time to make JobKeeper perfect</a>
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<p>Another is being tried with apparent success by <a href="https://www.domain.com.au/group/">Domain Group</a>, the real estate listings and journalism firm majority owned by Nine Entertainment Holdings, which also owns newspapers including The Age and The Sydney Morning Herald.</p>
<p>Domain, and the real estate industry in general, has been hard hit by plummeting listings and plateauing home prices.</p>
<h2>Project Zipline</h2>
<p>Because it is part owned by the public and listed on the Australian Securities Exchange, it has had to explain its approach to shareholders. </p>
<p>Its <a href="https://shareholders.domain.com.au/DownloadFile.axd?file=/Report/ComNews/20200427/02228319.pdf">April 26</a> announcement notes that about 45% of its cost base relates to staff and employee-related expenses.</p>
<p>“We had the option of taking the standard path of reducing hours, stand downs and redundancies, chief executive Jason Pellegrino explained on the <a href="https://www.domain.com.au/group/zipline/">Domain</a> website. </p>
<p>He chose another option: <a href="https://www.domain.com.au/group/zipline/">Project Zipline</a></p>
<blockquote>
<p>employees were offered the opportunity to participate in a share rights program whereby they could receive a percentage of their salary package over the next six months in share rights, or alternatively elect to reduce working hours</p>
</blockquote>
<p>The target is a 20% reduction in staff costs, while retaining employee talent and "momentum for the long term”.</p>
<p>It’ll also help align the employees and the organisational interests.</p>
<p>Domain’s group director for employee experience, Rosalind Tregurtha says there has been a 90% take up of the options offered. </p>
<h2>Sacrifices at the top</h2>
<p>The executive leadership and board are <a href="https://www.mckinsey.com/business-functions/organization/our-insights/how-to-beat-the-transformation-odds">role modelling</a> by taking greater proportions of their own remuneration in share rights: 30% and 50%.</p>
<p>It has had to work quickly so the savings can start from May. </p>
<p>The work has included preparing information packs for managers and employees, briefing managers, asking employees to chose options, working with <a href="https://www.linkmarketservices.com.au/corporate/home.html">Link Market Services</a> to get offers out and processing the changes for the more than 600 employees on the payroll.</p>
<p>Zipline is a case study of an organisation working quickly with its workers to find a solution that works. </p>
<p>It mightn’t work elsewhere. Other options for businesses include</p>
<ul>
<li><p>offering greater work flexibility including shortened weeks and job sharing</p></li>
<li><p>freezing or limiting recruitment</p></li>
<li><p>restricting or banning overtime </p></li>
<li><p>increasing the scope of jobs</p></li>
<li><p>allowing employees to take accrued leave</p></li>
<li><p>directing employees to take unpaid leave under the government’s <a href="https://www.fwc.gov.au/industrial-action-benchbook/payments-relating-industrial-action/standing-down-employees">stand down</a> provisions </p></li>
<li><p>seeking voluntary redundancies</p></li>
</ul>
<p>Whatever option works the best, for many employers doing nothing is not an option.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/coronavirus-lays-bare-the-trauma-of-losing-your-job-134450">Coronavirus lays bare the trauma of losing your job</a>
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<p>It is important to consider, as Domain did, that while demand for their services might have slowed for a time, there is every likelihood that in the not too distant future things will pick up.</p>
<p>The firms that have done all they can to retain their industry knowledge and company experience will be the best placed for revival.</p><img src="https://counter.theconversation.com/content/137704/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Robyn Johns does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Redundancies can can leave businesses ill-placed placed for revival. The real estate listings firm Domain is trying something more promising.Robyn Johns, Senior Lecturer in Human Resource Management and Industrial Relations, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1187612019-06-18T19:57:25Z2019-06-18T19:57:25Z50 years after ‘equal pay’, the legacy of ‘women’s work’ remains<p>June 19, 2019 is the 50th anniversary of Australia’s industrial relations system endorsing the principle of “equal pay for equal work”. </p>
<p>Yet, five decades on, a <a href="https://www.wgea.gov.au/data/fact-sheets/australias-gender-pay-gap-statistics">gender pay gap</a> remains.</p>
<p>The 1969 decision was a breakthrough, but also highlighted the problem of putting principle into practice, given a legacy of past decisions being based on clear notions of “male” and “female” jobs. </p>
<p>While various factors contribute to the <a href="https://home.kpmg/content/dam/kpmg/au/pdf/2016/gender-pay-gap-economics-executive-companion.pdf">overall gender pay gap</a>, about 30% is due to <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Finance_and_Public_Administration/Gendersegregation">gender concentrations</a> by industry and occupation. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/will-the-real-gender-pay-gap-please-stand-up-64588">Will the real gender pay gap please stand up?</a>
</strong>
</em>
</p>
<hr>
<p>Decisions dating back a century have contributed to the unequal wage patterns we still see today, with female-dominated jobs clustered at the lower end of the pay spectrum.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=365&fit=crop&dpr=1 600w, https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=365&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=365&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=459&fit=crop&dpr=1 754w, https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=459&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/279957/original/file-20190618-118501-1gcbvr5.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=459&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
<span class="attribution"><span class="source">ABS Census of Population and Housing 2016, and ABS Average Weekly Earnings 2018 (Cat No. 6302.0).</span>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<hr>
<p>It’s difficult to untangle today’s gender pay gap from the pages of history.</p>
<h2>A living wage, but based on men</h2>
<p>A gap between men’s and women’s pay was effectively established early in Australia’s centralised wage-fixing system. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=751&fit=crop&dpr=1 600w, https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=751&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=751&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=944&fit=crop&dpr=1 754w, https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=944&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/279708/original/file-20190617-158921-oouk2q.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=944&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Women working in the Sunshine Harvester factory during World War II.</span>
<span class="attribution"><a class="source" href="https://collections.museumvictoria.com.au/articles/12451">Museum Victoria</a></span>
</figcaption>
</figure>
<p>In 1907, the first landmark decision of the new Commonwealth Court of Conciliation and Arbitration set down the principle of the “family” or “living” wage. </p>
<p>In the <a href="https://www.fwc.gov.au/documents/documents/education/resources/full-harvester-transcript.pdf">Harvester Case</a> (stemming from a pay dispute at Sunshine Harvester, a Victorian maker of farming equipment), the court decided 7 shillings a day was the minimum pay needed by an unskilled labourer – on the basis that the labourer was male and needed to provide for a wife and three children. </p>
<p>The decision laid the foundation for a national minimum wage, but also left female workers out of the picture. </p>
<h2>Equal pay, but only for men’s work</h2>
<p>The underlying presumption that a woman didn’t need to be paid as much as a man was confirmed by Justice Henry Bourne Higgins, the president of the Court of Conciliation and Arbitration, in the <a href="https://www.fwc.gov.au/documents/documents/education/resources/1912_6_car_61.pdf">Fruit Pickers Case</a> of 1912.</p>
<p>In this, the court’s first explicit ruling on women’s pay, Justice Higgins declared women should be paid the same as men – but only when they did jobs predominantly performed by men (such as blacksmiths) or were “in competition” with men (such as fruit-picking). This was out of concern that allowing a lower pay rate for women could put men out of work.</p>
<p>In jobs undertaken only or mainly by women, such as packing fruit, it was a different matter. A woman’s wage could be lower than a man’s, Justice Higgins said, under the assumption that women “have to find their own food, shelter, and clothing; not food, shelter and clothing of a family”.</p>
<p>It was men, he explained, who had the obligation to provide for their wife and children: </p>
<blockquote>
<p>How is such a minimum applicable to the case of a woman picker? She is not, unless perhaps in very exceptional circumstances, under any such obligation.</p>
</blockquote>
<p>Justice Higgins set the minimum pay for fruit-packing jobs – “in which men are hardly ever employed” – at <a href="https://www.fwc.gov.au/documents/documents/education/resources/1912_6_car_61.pdf">75% of that for</a> fruit-picking. In the <em>Clothing Trades Case</em> of 1919, more concern about costs led him to decide the basic wage for women should be <a href="https://www.fwc.gov.au/waltzing-matilda-and-the-sunshine-harvester-factory/historical-material/fruit-pickers-case">54%</a> of men’s. </p>
<p>This gender discrepancy in pay narrowed to 75% with World War II, when women stepped into jobs vacated by men and <a href="https://www.fwc.gov.au/documents/documents/education/resources/waltzing_matilda.pdf">special regulations</a> were enacted. This 75% rate was accepted as the standard in the 1949-50 Basic Wage Case. </p>
<h2>Accepting equal pay, in principle</h2>
<p>As social attitudes evolved, the 1950s and 1960s saw more women joining the <a href="https://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Main+Features30Dec+2011#changing">paid workforce</a>. <a href="https://www.nma.gov.au/defining-moments/resources/equal-pay-for-women">Pressure</a> grew to match <a href="https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C100">international conventions</a> on equal pay. Unions led by the Australasian Meat Industry Employees Union, with a young Bob Hawke serving as their lead advocate, took up the cause. </p>
<p>In the <a href="https://www.fwc.gov.au/documents/documents/education/resources/1969_127_car_1142.pdf">1969 Equal Pay Case</a>, the Conciliation and Arbitration Commission (which had replaced the Court) finally accepted the principle of equal pay for equal work.</p>
<p>It tempered this acceptance, however, by acknowledging that putting the principle into practice would be <a href="https://www.fwc.gov.au/documents/documents/education/resources/1969_127_car_1142.pdf">complex</a>:</p>
<blockquote>
<p>While we accept the concept of “equal pay for equal work” implying as it does the elimination of discrimination based on sex alone, we realise that the concept is difficult of precise definition and even more difficult to apply with precision. </p>
</blockquote>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=828&fit=crop&dpr=1 600w, https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=828&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=828&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1040&fit=crop&dpr=1 754w, https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1040&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/279713/original/file-20190617-158958-1hdbmtd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1040&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Zelda D’Aprano,a clerk at the Australasian Meat Industry Employees’ Union, chained herself to the front doors of the building occupied Commonwealth Conciliation and Arbitration Commission.</span>
<span class="attribution"><a class="source" href="https://explore.moadoph.gov.au/people/zelda-daprano">Museum of Australian Democracy</a></span>
</figcaption>
</figure>
<p>The “mere similarity in name of male and female classifications”, the commission said, “may not be enough to establish that males and females do work of a like nature”.</p>
<p>This meant the principle only immediately applied to women doing exactly the same work as men, and employed in predominantly male occupations. Fewer than <a href="https://www.fwc.gov.au/documents/documents/education/resources/1972_147_car_172.pdf">one in five working women</a> benefited from the outcome.</p>
<p>Three years later, the <a href="https://www.fwc.gov.au/waltzing-matilda-and-the-sunshine-harvester-factory/historical-material/equal-pay-case-1972">1972 Equal Pay Case</a> expanded on the 1969 principle to encompass “equal pay for work of equal value”, with a single rate for a job, regardless of gender. </p>
<p>But with women and men often finding themselves in different types of work – and the nature of that work often differing vastly – the dilemma of figuring out how to measure “work of equal value” remained. It persists to this day.</p>
<h2>Finding a ‘comparable’ male job</h2>
<p>Today’s Fair Work Commission has inherited the legacy of its past judgements. </p>
<p>To agree a low wage rate in an occupation dominated by females is an issue of gender inequality, Australia’s Fair Work Act requires identifying a “comparable” male occupation. </p>
<p>This means pointing to a job chiefly performed by men that is <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/best-practice-guides/gender-pay-equity">similar to the female job in skill requirements and job responsibility</a> but higher paid. History shows finding such a “<a href="https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb8200.htm">comparator</a>” occupational group has been <a href="https://onlinelibrary.wiley.com/doi/abs/10.1111/1467-8462.00114">hard to achieve</a>. </p>
<p>It’s a problem faced by those arguing for higher wages in occupations such as childcare. </p>
<p>It leads us to ask: how can we meaningfully measure and compare the value of jobs that are so different in nature?</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-skills-and-personality-traits-contribute-to-the-gender-pay-gap-81684">How skills and personality traits contribute to the gender pay gap</a>
</strong>
</em>
</p>
<hr>
<p>It’s an especially important question for jobs in areas such as
<a href="https://www.pwc.com.au/pdf/putting-value-on-ecec.pdf">childcare</a>, <a href="https://www.jstor.org/stable/1503615?seq=1#page_scan_tab_contents">schooling</a> and <a href="http://www.euro.who.int/__data/assets/pdf_file/0009/278073/Case-Investing-Public-Health.pdf">health services</a> – which generate <a href="https://80000hours.org/2017/06/which-jobs-do-economists-say-create-the-largest-spillover-benefits-for-society/">society-wide benefits</a> but are not necessarily well-paid.</p>
<p>When the wider benefits of a job are not reflected by the market wage, this creates what economists call a <a href="https://www.econlib.org/library/Topics/College/marketfailures.htm">market failure</a>. It spells a role for governments to step in and correct it. </p>
<p>One innovative approach could be to use occupation-targeted <a href="https://hbr.org/2017/10/what-if-socially-useful-jobs-were-taxed-less-than-other-jobs">lower income tax rates</a> for jobs with high societal value.</p><img src="https://counter.theconversation.com/content/118761/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Leonora Risse is affiliated with the Women in Economics Network (WEN) and the Economic Society of Australia (ESA).</span></em></p>Five decades ago Australia’s industrial relations system endorsed the concept of ‘equal pay for equal work’. So why does the gender pay gap endure?Leonora Risse, Senior Lecturer in Economics, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1184552019-06-11T04:28:19Z2019-06-11T04:28:19ZWhy the Israel Folau case could set an important precedent for employment law and religious freedom<figure><img src="https://images.theconversation.com/files/278819/original/file-20190611-32361-1rx17i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Israel Folau is claiming that Rugby Australia unlawfully sacked him because of his religion. The organisation, however, contends the rugby star violated the terms of its code of conduct by discriminating against LGBTQ people.</span> <span class="attribution"><span class="source">Lukas Coch/AAP</span></span></figcaption></figure><p>Former Wallabies rugby star Israel Folau is the latest in a series of Australian employees to lose their jobs because of social media posts in recent years.</p>
<p>Through a combination of common law rules and broadly expressed codes of conduct, employers have increasingly been able to control their workers’ private activities, including on social media.</p>
<p>But what makes Folau’s case different is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion. </p>
<p>This could set an important employment law precedent for future cases like this, which is especially contentious at a time when <a href="https://theconversation.com/after-his-miracle-election-will-scott-morrison-feel-pressure-from-christian-leaders-on-religious-freedom-117798">religious freedom</a> is being so fiercely debated in Australia.</p>
<h2>What claim has Folau brought?</h2>
<p>Rugby Australia terminated Folau’s employment contract last month after a tribunal <a href="https://www.abc.net.au/news/2019-05-07/israel-folau-breached-code-of-conduct-hearing-finds/11089234">determined</a> his actions had breached the organisation’s <a href="https://australia.rugby/about/codes%20and%20policies/integrity/code%20of%20conduct">code of conduct</a>. The offending behaviour was an Instagram post by Folau in April, warning homosexuals (among others): “Hell Awaits You. Repent! Only Jesus Saves.”</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/egging-the-question-can-your-employer-sack-you-for-what-you-say-or-do-in-your-own-time-116880">Egging the question: can your employer sack you for what you say or do in your own time?</a>
</strong>
</em>
</p>
<hr>
<p>Folau has now brought a claim under <a href="https://www.fwc.gov.au/termination-employment/unlawful-termination">Section 772 of the Fair Work Act</a> alleging the termination was because of his religion and, therefore, unlawful. </p>
<p>The application argues that as a manifestation of his Christian religion, including regular church attendance and preaching, Folau is:</p>
<blockquote>
<p>…compelled to communicate the word of God and the message contained within the Bible.</p>
</blockquote>
<p>According to media outlets, he is <a href="https://www.smh.com.au/sport/rugby-union/agents-cast-doubt-on-folau-s-10-million-payout-claim-20190607-p51vms.html">claiming around A$5 million</a> in lost salary and an additional A$5 million in compensation for other missed opportunities, including sponsorships. </p>
<h2>What the Fair Work Act says in cases like this</h2>
<p>Rugby Australia maintains that Folau was dismissed not because of his religious beliefs, but because he breached the player code of conduct. </p>
<p>The code is typical of that of many businesses. It requires players to treat everyone equally and with dignity, regardless of their sexual orientation; not to use social media to breach expected standards of behaviour; and not to make public comments or otherwise act contrary to the best interests of the game.</p>
<p>What makes Folau’s claim unique is that it depends on the court’s view of whether he was dismissed for reasons that included his religion, as specified under Section 772 of the Fair Work Act. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-gay-wedding-cake-dilemma-when-religious-freedom-and-lgbti-rights-intersect-93070">The 'gay wedding cake' dilemma: when religious freedom and LGBTI rights intersect</a>
</strong>
</em>
</p>
<hr>
<p>This claim could be easier for Folau to prove than another part of the Fair Work Act commonly relied upon in discrimination cases, Section 351. </p>
<p>Case law tells us that <a href="https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination">Section 351</a> requires the employee to prove an employer was <em>motivated</em> to discriminate against him or her because of religion. So, if an employer can point to an employee’s breach of their employment obligations as the reason for dismissal – instead of a discriminatory motive – then the employee’s claim fails.</p>
<p>In contrast, under Section 772, Folau only has to show that his religion was merely among the reasons for the dismissal. </p>
<p>However, in order to make his case, he will also need to demonstrate that his Instagram post constituted an exercise of his religion. </p>
<p>There are some big questions to be resolved here: how far does a person’s right of religious expression extend? Does being a Christian necessarily mean you can express the views of your faith in any public forum? </p>
<p>And does it allow Folau to express his views in the way that he did (noting that he says he was simply quoting from the Bible)?</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=413&fit=crop&dpr=1 600w, https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=413&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=413&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=519&fit=crop&dpr=1 754w, https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=519&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/278821/original/file-20190611-32366-syux8b.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=519&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Rugby Australia chief Raelene Castle says Folau repeatedly ignored warnings about his behaviour on social media.</span>
<span class="attribution"><span class="source">David Gray/AAP</span></span>
</figcaption>
</figure>
<h2>Are there any precedents in case law?</h2>
<p>Discrimination law doesn’t help us out much here. </p>
<p>Various state and territory laws protect a person from being discriminated against due to religious “belief”, “conviction” or “activity.” However, the case law shows that only certain characteristics of those who observe a particular religion fall within these protections, for example, a Hindu who practices fasting, or a Sikh wearing a turban. Previous cases haven’t dealt with the question of speech associated with a person’s religion.</p>
<p>For further guidance, we can turn to cases involving an employee’s right to express political opinions. But here, too, we find a bit of a mixed bag. </p>
<p>Academics seemingly have more latitude to express political opinions because their free speech rights are backed up by “intellectual freedom” clauses found in most university enterprise agreements. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-does-rugby-australia-have-legal-grounds-to-sack-israel-folau-for-anti-gay-social-media-posts-116170">Explainer: does Rugby Australia have legal grounds to sack Israel Folau for anti-gay social media posts?</a>
</strong>
</em>
</p>
<hr>
<p>This enabled former James Cook University physics professor Peter Ridd to <a href="https://www.abc.net.au/news/2019-04-16/jcu-scientist-peter-ridd-sacking-unlawful-federal-court-judgment/11021554">successfully contest his dismissal</a> for public comments critical of climate science. Academic freedom was also behind the claim mooted by La Trobe University’s Roz Ward, <a href="https://theconversation.com/academic-freedom-and-the-suspension-of-roz-ward-60375">who was suspended in 2016</a> for social media comments criticising the “racist Australian flag,” before the university eventually backed down.</p>
<p>By comparison, federal public servants are subject to very <a href="https://www.apsc.gov.au/making-public-comment-social-media-guide-employees">restrictive policies</a> curtailing their free speech rights. </p>
<p>However, the <a href="https://www.abc.net.au/news/2019-03-20/high-court-michaela-banerji--lalegale-canberra/10918304">case</a> of former Department of Immigration official Michaela Banerji shows that public service employees may be able to rely on the implied constitutional freedom of political communication. She won a workers’ compensation case on the basis that her dismissal for anonymous tweets criticising government policies breached her constitutional rights. The federal government is now contesting that ruling in the High Court.</p>
<h2>New territory for employment law</h2>
<p>Outside the academic and public sector contexts, we don’t yet have a definitive ruling on the apparent conflict between an employer’s right to control employees’ social media comments and the protections of religious or political freedom found in discrimination law. </p>
<p>Many of these cases settle out of court, such as Angela Williamson’s <a href="https://www.news.com.au/finance/work/at-work/sacked-cricket-australia-staffer-angela-williamson-breaks-down-in-tv-interview/news-story/ce37bbb93ea6b9a3c7517ffa00162b18">claim</a> against Cricket Australia for unfair termination following tweets she sent that were critical of Tasmanian government policy on access to abortion.</p>
<p>It’s highly likely that a settlement will be reached in the Folau case, as well. But if it does go to trial, I think the employer’s contractual right to impose standards of behaviour will trump the rugby star’s right to express his religious views. </p>
<p>Court rulings have tended to favour employers seeking to enforce their behavioural policies and codes, including the regulation of employees’ private activities. The Folau case is an important opportunity to see whether the right to express religious views can halt the steady march of employer control in the era of social media.</p><img src="https://counter.theconversation.com/content/118455/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Forsyth has received research funding from organisations including the Business Council of Australia, the Construction, Forestry, Mining and Energy Union, the Fair Work Commission and Victorian Government. The views expressed in this article are his own. Anthony blogs on workplace issues at: <a href="https://labourlawdownunder.com.au/">https://labourlawdownunder.com.au/</a> </span></em></p>What makes Folau’s case unique is that it sets up a clash between employment contract law and legal protections against discrimination on the basis of religion.Anthony Forsyth, Professor of Workplace Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1136442019-03-21T18:54:19Z2019-03-21T18:54:19ZWe’ve let wage exploitation become the default experience of migrant workers<p>Australia’s Fairwork Commission <a href="https://www.fairwork.gov.au/about-us/news-and-media-releases/2019-media-releases">has so far this year</a> examined more than a dozen cases of wage theft. Those cases involve hundred of workers and millions of dollars in underpayments.</p>
<p>And it’s just the tip of the iceberg.</p>
<p>A significant report on the <a href="https://docs.jobs.gov.au/documents/report-migrant-workers-taskforce">exploitation of migrant workers</a> in Australia has been published this month. After a two-year inquiry by the federal <a href="https://docs.jobs.gov.au/documents/report-migrant-workers-taskforce">Migrant Workers’ Taskforce</a>, the report concludes that wage theft is widespread. Possibly as many as half of all temporary migrant workers are being underpaid. </p>
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Read more:
<a href="https://theconversation.com/we-need-to-hear-the-stories-of-exploited-unlawful-migrant-workers-not-just-deport-them-73348">We need to hear the stories of exploited unlawful migrant workers, not just deport them</a>
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<p>The federal government has agreed <a href="https://www.sbs.com.au/news/employers-could-face-jail-for-wage-theft">“in principle”</a> to act on all of the report’s 22 recommendations. Attracting most media coverage is the recommendation to introduce criminal penalties for deliberate and systemic exploitation. <a href="https://www.theaustralian.com.au/national-affairs/industrial-relations/bosses-urge-coalition-to-ditch-support-for-criminalising-wage-theft/news-story/ba910e603b95222efd0471dcf7462211">Employer groups oppose</a> this. </p>
<p>But this debate should not distract us from other important principles that need action.</p>
<h2>Equality before the law</h2>
<p>Of foremost importance is the principle of equality. The federal government’s response to the report rightly declares that all workers, no matter their background, should be able to work <a href="https://docs.jobs.gov.au/system/files/doc/other/government_response_to_the_migrant_workers_taskforce_report.pdf">without fear of exploitation</a>. </p>
<p>Here the report contains two crucial recommendations. </p>
<p>The first is to amend the Fair Work Act so it expressly states it covers migrant workers. The second is to extend coverage of the federal <a href="https://www.jobs.gov.au/fair-entitlements-guarantee-feg">Fair Entitlements Guarantee</a> program, which covers the cost of entitlements left unpaid when a worker is left high and dry by an employer going into liquidation or bankruptcy.</p>
<p>The report also stresses the need for migrant workers to be adequately informed of their workplace rights. It proposes a “whole of government” approach to inform and educate workers. </p>
<h2>Social licence</h2>
<p>Another critical principle of the report is that of redress. </p>
<p>It recommends that the effectiveness of the small claims process under the Fair Work Act be reviewed.</p>
<p>It also recommends increasing penalties under the Fair Work Act. These include giving courts the power to impose an adverse publicity order, requiring an offending business to notify the public it has cheated workers; and for the most serious cases of exploitation, of course, it has suggested criminal sanctions. </p>
<p>For four high-risk industries – horticulture, meat processing; cleaning and security – the report recommends a National Labour Hire Registration Scheme. Companies failing to comply with workplace laws would face potential deregistration. </p>
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Read more:
<a href="https://theconversation.com/cheating-workers-out-of-wages-is-easier-than-ever-96758">Cheating workers out of wages is easier than ever</a>
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<p>It also asks the government to explore ways by which employers found to have underpaid workers can be banned from employing anyone for a specific period. </p>
<p>These last two proposals speak to a deep moral truth. The ability to operate a business is a social licence. Those who systematically disregard the rights of workers forfeit their right to this licence.</p>
<p>While noting the important work undertaken by the Fair Work Ombudsman, the report queries whether the office’s funding, functions and power are equal to addressing the problem of wage theft. It recommends a public capability review to ensure the regulator is “fit for purpose”. </p>
<h2>Wider responsibilities</h2>
<p>There should be little doubt that systemic industry practices (particularly in the agriculture and hospitality sectors) and business structures (such as franchises and labour-hire companies) are contributing to the problem. </p>
<p>Equally clear too is that the big end of town bears culpability. The roll-call of companies implicated in breaches include Caltex, Domino’s Pizza, Woolworths and Pizza Hut. Restaurants owned by celebrity chefs <a href="https://www.smh.com.au/business/workplace/chefs-complain-about-30-000-underpayment-at-heston-blumenthal-s-restaurant-20181218-p50n0b.html">Heston Blumenthal</a> and <a href="https://www.abc.net.au/news/2018-07-13/george-calombaris-hellenic-republic-restaurant-pay-claims/9987356">George Calombaris</a> have been found underpaying employees. </p>
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Read more:
<a href="https://theconversation.com/what-is-going-rotten-in-the-franchise-businesses-plagued-by-scandals-88954">What is going rotten in the franchise businesses plagued by scandals</a>
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<p>The report makes clear it is not just employers and the Fair Work Ombudsman that must ensure compliance with workplace laws. Other institutional actors are also responsible. </p>
<p>It recommends, for instance, businesses that outsource workers be deemed accessories to any crime of wage theft committed by labour-hire companies. </p>
<p>Significantly, it also draws attention to the responsibility of the higher education sector, given the sector profits from about <a href="https://www.studiesinaustralia.com/studying-in-australia/why-study-in-australia/international-students-in-australia">800,000</a> fee-paying international students in Australia. Many of these students take part-time jobs, and they are particularly vulnerable to being exploited. The report recommends education providers be obliged to provide information to them, and to assist them when they experience workplace issues.</p>
<h2>A powerful blueprint</h2>
<p>The report is clearly not meant to be the final word on dealing with wage theft. Its first recommendation is that the federal government establish a “whole of government mechanism” to continue the taskforce’s work. </p>
<p>For this work to be meaningful, another principle of the report must be acted upon: the need for systematic data collection and analysis. Without this we risk being blind to what is happening right before us. Consider, for example, the growing use of migrant labour as domestic workers badged as “au pairs”.</p>
<p>The report is certainly not without limitations. It could have gone much further on immigration law reform, given the pernicious role certain visa conditions have in encouraging exploitation. It fails to specifically discuss the crucial role of trade unions in protecting workers.</p>
<p>It is nonetheless a powerful blueprint to address the rampant problem of wage theft, which undermines the integrity and cohesion of our labour markets. It is incumbent upon all those in power to act on it.</p><img src="https://counter.theconversation.com/content/113644/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joo-Cheong Tham receives funding from the New South Wales Electoral Commission and the Victorian Electoral Commission. He has also been in receipt of grants from the Australian Research Council and has been commissioned for work by the New South Wales Independent Commission Against Corruption.
He is the Deputy Chair of the Migrant Workers Centre, Melbourne.</span></em></p>As many as half of all temporary migrant workers are being underpaid. After a two-year inquiry, the Migrant Workers’ Taskforce has provided a blueprint to do something about it.Joo-Cheong Tham, Professor, Melbourne Law School, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/913152018-02-08T00:50:18Z2018-02-08T00:50:18ZUnions can’t just rely on promises of favourable laws to regain lost ground<figure><img src="https://images.theconversation.com/files/205248/original/file-20180207-74512-1dtdlq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">As ACTU secretary, Sally McManus has proven effective at elevating the debate over workplace reform. </span> <span class="attribution"><span class="source">AAP/Alex Murray</span></span></figcaption></figure><p>This year has begun with an intensification of <a href="https://theconversation.com/vital-signs-jobs-may-be-increasing-but-the-real-test-is-whether-we-get-a-pay-rise-this-year-90110">the debate</a> about wage stagnation and wage inequality in Australia.</p>
<p>Research papers published this year have <a href="http://www.futurework.org.au/decline_in_strike_frequency">linked</a> the stalling of wage increases to drastically reduced levels of industrial action (and therefore unions’ collective bargaining power), and <a href="https://percapita.org.au/research/work-australia-working/">highlighted</a> the current system of workplace regulation’s focus on outdated notions of work and the workplace.</p>
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Read more:
<a href="https://theconversation.com/vital-signs-jobs-may-be-increasing-but-the-real-test-is-whether-we-get-a-pay-rise-this-year-90110">Vital Signs: jobs may be increasing but the real test is whether we get a pay rise this year</a>
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<p>The Labor Party’s national president, Mark Butler, <a href="https://markbutler.net.au/news/speeches/the-future-of-unions-in-australia-and-the-implications-for-labor/">recently urged</a> the labour movement “to have a no-holds-barred debate about the place of unions in Australia”. He pointed to the problems unions faced in terms of employer hostility and unhelpful laws, but also argued:</p>
<blockquote>
<p>Most people still imagine union organising against a backdrop of relatively large workplaces with a stable workforce – traditional factory organising … [However a] modern workplace is far more likely to be small and difficult to access, with a workforce that has high levels of turnover.</p>
</blockquote>
<p>Unions have to persuade people of the wisdom of having a collective voice in the workplace, and find a new version of solidarity for the digital age.</p>
<h2>State of play</h2>
<p>Sally McManus has been secretary of the Australian Council of Trade Unions (ACTU) for just under a year. In that time, she has <a href="http://www.afr.com/brand/afr-magazine/actu-chief-sally-mcmanus-parlays-online-support-into-power-20170814-gxvuo2">proven effective</a> at elevating the debate over workplace reform. The <a href="https://www.australianunions.org.au/change_the_rules">union movement’s mantra</a> – “the rules are broken”, “we need to #changetherules” – is biting in the community.</p>
<p>McManus recently effectively called time on the 25-year process of enterprise bargaining. <a href="https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&selkey=56458">She argued</a> unions are confronted with “a labyrinth of regulations”, and workers now have “little to trade off”.</p>
<p>The <a href="https://www.legislation.gov.au/Details/C2017C00323">Fair Work Act</a> is a legacy of the last Labor government; it’s been the subject of minimal change by the Coalition to date. </p>
<p>Unions had significant input into drafting the act when Julia Gillard was workplace relations minister in 2007-08. They ensured it included various mechanisms to support collective bargaining, in a shift from the individualised focus of the WorkChoices era.</p>
<p>However, in the decade since then, employers have found various ways to side-step many of the Fair Work Act’s requirements. And other union or employee rights have been read down by the courts and the Fair Work Commission.</p>
<h2>Finding new ways to connect</h2>
<p>Clearly, there are changes to the law that would, <a href="https://www.actu.org.au/actu-media/speeches-and-opinion/sally-mcmanus-address-to-nexgen-2017">as McManus argues</a>, help unions in their efforts to organise and represent workers. These include:</p>
<ul>
<li><p>tackling the “free-rider” issue (where non-unionists gain the benefit of union-negotiated enterprise agreements)</p></li>
<li><p>enabling unions to bargain not just with the direct employer of their members, but across franchise networks and supply chains</p></li>
<li><p>closing down the use of outsourcing, labour hire and other business entities to avoid the application of enterprise agreements, and employers making inferior agreements with small employees that are later applied to a much larger workforce (known as “no-stake” bargaining)</p></li>
<li><p>limiting employers’ ability to seek termination of expired agreements (taking workers back to the award safety net).</p></li>
</ul>
<p>Labor has <a href="http://brendanoconnor.ml.net.au/en-au/News/Brendan-OConnor-Latest-News/Post/16230/WORK-WAGES-AND-DIVISION-CREATING-A-FAIR-AND-PRODUCTIVE-LABOUR-MARKET-NATIONAL-PRESS-CLUB-CANBERRA">already committed</a> to implement many elements of the union agenda if it wins the next election. </p>
<p>But even with the most favourable laws, unions will still need to confront the reality of a dramatic transformation in the world of work: automation, the expanding “gig economy”, and what US academic David Weil calls the <a href="http://www.hup.harvard.edu/catalog.php?isbn=9780674975446&content=reviews">“fissuring” of work</a> – where business functions are split off to new entities that are forced to engage in intense competition, thus driving down labour costs. </p>
<p>Former ACTU assistant secretary Tim Lyons <a href="https://meanjin.com.au/essays/the-labour-movement-my-part-in-its-downfall/">puts it this way</a>: </p>
<blockquote>
<p>The workplaces and communities in which we organised politically and industrially have disappeared underneath us … Unions have to transform to catch up to the world as it is.</p>
</blockquote>
<p>These developments, combined with the disinclination of young workers to join unions, mean new forms of engagement have to be found outside the conventional notion of the workplace. Unions must connect with people in their communities and speak to them using technology they are familiar with.</p>
<p>Some Australian unions are taking on this challenge. They are attempting to organise workers in their homes, places of religious observance, and other focal points for community activity. For example:</p>
<ul>
<li><p>Victorian Trades Hall Council’s <a href="http://www.youngworkers.org.au/">Young Workers Centre</a> harnesses the power of social media in an effort to reach a new generation of workers in disparate, disconnected work environments. </p></li>
<li><p>The National Union of Workers has run a very effective campaign targeting exploitation of farm workers in the fresh food supply chain. It has also offered a <a href="https://www.nuw.org.au/your-fair-go-0">“FairGo” category</a> of membership, enabling non-members to participate in a class action to recover underpayments.</p></li>
</ul>
<p>However, not all union leaders are embracing these kinds of innovation. They may be at risk of placing too much faith in the capacity of legal changes to deliver a revival in membership numbers. </p>
<p>Given record-low wage increases and widespread exploitation of vulnerable workers, the value proposition of a collective voice in the workplace has rarely been stronger.</p><img src="https://counter.theconversation.com/content/91315/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Forsyth has received research funding from organisations including the BCA, CFMEU, Fair Work Commission and Victorian Government. He is a Consultant with Corrs Chambers Westgarth. The views expressed in this article are his own.</span></em></p>Even with the most favourable laws, unions will still need to confront the reality of a dramatic transformation in the world of work.Anthony Forsyth, Professor of Workplace Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/660522016-10-10T04:52:55Z2016-10-10T04:52:55ZPaid domestic violence leave: how do other countries do it?<p>It’s hard to leave an abusive relationship if you don’t have an <a href="http://dfvbenchbook.aija.org.au/understanding-domestic-and-family-violence/economic-abuse/">income</a>. So, keeping your job can make the difference between escaping and being trapped in a violent relationship.</p>
<p>But holding down a job can be hard if your boss doesn’t allow you time off to move house, deal with crises, meet with lawyers or even work from a different location so your abuser can’t find you at work.</p>
<p>Some employers do offer such flexibility but unions are now calling for a statutory right to <a href="http://theconversation.com/domestic-violence-leave-gains-support-but-lets-do-it-right-51251">paid domestic violence leave</a>.</p>
<p>In its submission to the Fair Work Commission’s awards <a href="https://www.fwc.gov.au/awards-agreements/awards/modern-award-reviews/4-yearly-review/common-issues/am20151-family-and">review</a>, the <a href="http://www.smh.com.au/comment/why-domestic-violence-leave-must-be-enshrined-in-modern-awards-20160622-gpp6zf.html">Australian Council for Trade Unions</a> (ACTU) is seeking ten days of <a href="https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2051-sub-actu-010616.pdf">paid family and domestic violence leave</a> in all modern awards.</p>
<p>Such measures would cost employers. The ACTU’s proposals have drawn criticism from the Australian Industry Group. The group’s chair, Innes Willox, <a href="https://www.aigroup.com.au/policy-and-research/mediacentre/releases/Union-domestic-violence-leave20.9.16/">argues</a> that:</p>
<blockquote>
<p>Paid domestic violence leave is extremely uncommon internationally. The only country that is known to have paid domestic violence leave at a national level is the Philippines, but the entitlement is not well-known in the country or well-enforced. </p>
</blockquote>
<p>It is certainly true that most jurisdictions do not grant workers a statutory right to paid domestic violence leave. But while domestic violence leave is not common, there are considerable moves to introduce paid domestic leave provisions in Canada, New Zealand and the US.</p>
<h2>Global shift</h2>
<p>Workplace laws in many countries, include Australia, already require employers to take various steps to manage employees who are experiencing domestic violence. Such laws include domestic violence criminal laws, work health and safety laws, anti-discrimination laws and some industrial relations laws.</p>
<p>In 2015, the UK <a href="http://www.independent.co.uk/news/uk/home-news/everything-you-need-to-know-about-the-new-psychological-abuse-law-a6789271.html">amended its domestic violence laws</a> to make psychological abuse a crime but did not introduce a statutory right to domestic violence leave.</p>
<p>In Canada, only one province – <a href="http://www.theglobeandmail.com/news/national/manitoba-approves-bill-to-offer-victims-of-domestic-violence-leave-from-work/article29255554/">Manitoba</a> – has paid domestic violence leave. Under that <a href="https://web2.gov.mb.ca/bills/40-5/b008e.php">law</a>, employees experiencing domestic violence leave to five paid days of leave and a further five days of unpaid leave. </p>
<p>The federal Canadian government is <a href="http://www.theglobeandmail.com/news/politics/feds-studying-paid-leave-for-domestic-violence-victims-in-manitoba-ontario/article31610882/">considering</a> providing federal employees a right to paid domestic violence leave. Other Canadian provinces, such as <a href="http://www.ontarioemployerlaw.com/2016/04/15/new-paid-and-unpaid-leaves-proposed-for-ontario-employees/">Ontario</a>, are also considering whether paid and unpaid domestic violence leave should be on their books.</p>
<p>While unpaid leave is available in some jurisdictions within the US, such as the Illinois <a href="http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2502">Victims’ Economic Security and Safety Act</a>, other states provide employees access to existing paid leave. </p>
<p>This is not in addition to other leave, but instead enables employees to access existing leave in new ways. In <a href="http://mn.gov/gov-stat/images/2014_05_11_wesa_fact_sheet.pdf">Minnesota</a> and the state of <a href="http://lni.wa.gov/WorkplaceRights/LeaveBenefits/FamilyCare/DomViolence/default.asp">Washington</a>, employees are allowed to use their sick leave if they are experiencing family violence.</p>
<p>The US Congress is considering far more expansive laws that will increase employees’ overall entitlement to leave, such as an <a href="https://www.congress.gov/bill/114th-congress/house-bill/932/text">act</a> that would provide employees a right to paid leave to help escape domestic violence.</p>
<p>While New Zealand does not currently have a statutory right to paid domestic violence leave, many employers do offer employees such leave anyway. In New Zealand, the prevalence of paid domestic violence leave is influencing public debate on the question of whether or not New Zealand’s statutes should enshrine such a <a href="http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11598860">right in law</a>.</p>
<h2>The Australian situation</h2>
<p>The Australian Industry Group is right to say that paid domestic violence leave is uncommon internationally. </p>
<p>Australia’s Fair Work Act does not provide workers a right to domestic violence leave. But <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s65.html">Section 65 of the same law</a> does give employees a right to demand flexible working arrangements. </p>
<p>Under this rule, workers can request that their boss adjust their hours of work, work patterns or work location. The employer may refuse the request only on “reasonable business grounds”.</p>
<p>The <a href="https://www.fairwork.gov.au/employee-entitlements/national-employment-standards">National Employment Standards</a> (NES) – ten minimum employment entitlements that have to be provided to all employees – in the Fair Work Act do not currently provide for domestic violence leave.</p>
<p>However, the Victorian <a href="https://s3-ap-southeast-2.amazonaws.com/cdn.workplaceexpress.com.au/files/31.%20RCFV_Full_Report_Interactive.pdf">Royal Commission into Family Violence report</a> has recommended the NES include an entitlement to paid family violence leave for employees (other than casual employees) and an entitlement to unpaid family violence leave for casual employees. </p>
<h2>Employers lead the way</h2>
<p>While Australia has been slow to adopt domestic violence leave in statute, employers within Australia have led the way in providing employees such leave. </p>
<p>The paid domestic violence leave included in Victoria’s <a href="http://www.smh.com.au/national/paid-domestic-violence-leave-setting-a-world-standard-20121026-28b1w.html">Surf Coast Shire Council</a> in Torquay was one of the first agreements to include such leave in the world. This agreement provided survivors of domestic violence an extra 20 days a year of paid leave.</p>
<p>Since this agreement has been struck, the number of enterprise agreements to include paid domestic violence leave has risen to cover thousands, if not tens of thousands of workers. </p>
<p>The <a href="https://s3-ap-southeast-2.amazonaws.com/cdn.workplaceexpress.com.au/files/31.%20RCFV_Full_Report_Interactive.pdf">Victorian Royal Commission into Family Violence</a> report, released in March 2016, identified 840 enterprise agreements that contained a family violence provision of some kind, most of them providing
for family violence leave. </p>
<p>The public sector is embracing paid domestic leave, with Victoria set to offer employees 20 days paid leave, South Australia 15 days and Queensland ten days.</p>
<p>It is encouraging to see employers lead the way, but Australian workers should have guaranteed access to domestic violence leave. </p>
<p>At a minimum, workers should be able to access their personal/sick leave when they confront domestic violence and, when that runs out, people should receive additional support. We must find ways to give survivors and their children the economic security they need to escape violence and begin to rebuild their lives.</p>
<hr>
<p><em>The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.</em></p><img src="https://counter.theconversation.com/content/66052/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Paul Harpur does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>It’s uncommon internationally for workers to have a statutory right to paid domestic violence leave, but things may be shifting.Paul Harpur, Senior Lecturer, TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/599622016-08-17T20:28:14Z2016-08-17T20:28:14ZAre Sunday penalty rates a job killer? A real-world experiment refutes employers’ claim<p>Two big claims underpin attempts to cut penalty rates for Sunday workers in the retail and hospitality sectors: that they are no longer needed or relevant, and that they cost jobs.</p>
<p>These claims are at the centre of a <a href="https://www.fwc.gov.au/awards-and-agreements/modern-award-reviews/am2014305-penalty-rates-case">review by the Fair Work Commission</a> of awards in those industries. The review began in late 2014. Employers have <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjqvc_R1MTOAhVEm5QKHR57AbEQFggbMAA&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fnational-affairs%2Findustrial-relations%2Flabor-intensifies-calls-for-malcolm-turnbull-to-intervene-in-sunday-penalty-rates-decision%2Fnews-story%2Ffcaeed3eef3a249af962193830ebf851&usg=AFQjCNGD0AAyIBzDxhGJQ3Z-Bmfx8iu17A">applied to have those penalty rates cut</a>.</p>
<p>Penalty rates were the <a href="http://www.abc.net.au/news/2016-06-17/election:-malcolm-turnbull-rules-out-change-to-penalty-rates/7522284">subject of debate</a> before and <a href="http://www.news.com.au/finance/work/bill-shorten-wants-to-work-with-malcolm-turnbull-to-preserve-penalty-rates/news-story/5c38e368a8ed7cb93e9af4a388302e03">during the 2016 election</a> campaign. Unions claimed the <a href="http://www.theaustralian.com.au/federal-election-2016/election-2016-union-claims-1m-penalties-campaign-won-key-seats/news-story/da952cbbb0a60b6d50f5472c4f63cfb3">seats they targeted</a> over this issue <a href="http://www.afr.com/news/actu-claims-union-campaign-more-successful-than-2007-20160707-gq0wrp">swung more heavily against the government</a>.</p>
<p>The commission, <a href="https://www.workplaceexpress.com.au/topics.php?stream=15-11">speculation goes</a>, will make its decision on the review next month.</p>
<h2>No longer needed or relevant?</h2>
<p>Employer groups contended the higher wage for Sunday workers is no longer justified in a “24/7 economy” where young employees especially see no difference in working on Sundays. Prime Minister Malcolm Turnbull referred to penalty rates as an <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-lower-penalty-rates-inevitable-with-seven-day-economy-20151005-gk1yr5.html#ixzz3uU1OOMrZ">accident of history</a>.</p>
<p>But evidence shows weekend work is <a href="http://jos.sagepub.com/content/44/1/5.short">significantly associated</a> with work-family conflict for fathers. Data from a <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwii_6KQ57bOAhUBrJQKHTycAm4QFggdMAA&url=http%3A%2F%2Fw3.unisa.edu.au%2Fhawkeinstitute%2Fcwl%2Fdocuments%2FAWALI2012-National.pdf&usg=AFQjCNEQT6qUQoFXPU_kZEXilOwBRHlu2Q&sig2=paQhjU40d6W7yUkPemIcsg">major national survey</a> showed that working Sundays in particular is linked to <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjxz_ah57bOAhVBmZQKHS6DC1AQFggbMAA&url=http%3A%2F%2Fwww.unisa.edu.au%2Fdocuments%2Feass%2Fcwl%2Fpublications%2Fawali_2014_national_report_final.pdf&usg=AFQjCNHbD4smSTD3hVh4r6GqZk_HZKzCbQ&sig2=_HE1X48-dP9j17nACMCw9g&bvm=bv.129389765,d.dGo">higher work-life interference</a>.</p>
<p>Other <a href="http://onlinelibrary.wiley.com/doi/10.1111/jomf.12127/full">recent Australian studies</a> showed Sunday remained a day for <a href="http://www.tandfonline.com/doi/abs/10.1080/10301763.2005.10722031">family and civic activities</a>, more so than Saturday or any weekday.</p>
<p>Penalty rates are certainly an important component of workers’ incomes in the industry. <a href="http://www.unisa.edu.au/PageFiles/34117/PenaltyRatesReport_Oct2014%20Final_R1.pdf">More than half</a> (57%) of retail industry employees receive penalty rates. Of these, almost one-third (32%) report relying on them to meet normal household expenses.</p>
<h2>What about the job impacts?</h2>
<p>But set aside, for the moment, whether penalty rates are still relevant. Do they kill jobs?</p>
<p>Employers argued that existing Sunday penalty rates lead to shorter opening hours, fewer jobs and a less desirable mix of employee experience.</p>
<p>The difficulty in validating such claims is in disentangling employment effects from economic conditions or general workforce changes. It isn’t easy, for example, to establish whether any jobs lost are due to higher penalty rates, an economic downturn, or something else.</p>
<p>Our research, however, takes advantage of a rare “natural experiment” to estimate the effect of higher Sunday penalty rates. The experiment could be done because the commission’s earlier award-modernisation process had standardised state-based industry award rates.</p>
<p>In particular, Sunday penalty rates for New South Wales retail award employees rose from 150% (or “time and a half”) to 200% (or “double time”) between 2010 and 2014. Over the same five years, rates remained unchanged (at 200%) for comparable Victorian workers.</p>
<p>By comparing the two states, and using Victoria as a “counterfactual”, we could estimate the separate effect of raising Sunday penalty rates in NSW.</p>
<p>The research relied on <a href="http://www.abs.gov.au/AUSSTATS/abs@.nsf/ProductsbyCatalogue/35006594EB1126B2CA257132000F9189?OpenDocument">publicly available data</a> and on widely accepted econometric methods and checks. It looked at common underlying employment trends in the two states and controlled for state-specific factors including labour market conditions, youth employment rates and industry demand.</p>
<p>Our research led to an <a href="https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014305-expert6-sda-040915.pdf">initial report</a> and then some <a href="https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014305-ws-yu-sda-181215.pdf">updated estimates</a>.</p>
<p>It found higher Sunday penalty rates in NSW did not have a consistent or systematic effect on retail employment as measured by the Australian Bureau of Statistics. While there was a large and significant negative effect in the first year — a drop of more than 7% in the number of employees and total hours – the total effects over the five years were a mix of positive and negative but <a href="http://www.measuringu.com/blog/statistically-significant.php">statistically insignificant</a>.</p>
<p>Most importantly, the cumulative effect on jobs over the five years was not significantly different from zero. That is, between them the five increases in Sunday penalty rates in NSW retailing did not significantly affect job levels in that industry. If there was an effect, it was too small to show up.</p>
<p>A different, <a href="https://www.melbourneinstitute.com/hilda/">longitudinal dataset</a> showed no change in the number of people in NSW working on Sundays. There was, however, weakly significant evidence of a drop in the number of total hours worked in NSW retail.</p>
<p>Together the results suggest that in an industry dominated by casual and part-time workers, what adjustment in employment does occur happens through changing hours and not the number of employees in jobs.</p>
<p>Finally, on the mix of available employees, do penalty rates really mean that employers can roster only inexperienced, casual employees on Sundays?</p>
<p>National data show that permanent workers are more likely to say they would <em>not</em> continue to work unsocial hours <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjcpIzAgrjOAhUI6GMKHbPzDvoQFggbMAA&url=http%3A%2F%2Fwww.unisa.edu.au%2Fglobal%2Feass%2Fhri%2Fcwl%2Fpublications%2Fpenaltyratesreport_oct2014%2520final_r1.pdf&usg=AFQjCNGwIUkHlhYJMxSNB9Tx-HmMbdZF8w&sig2=BxCl6llJdEMwnTduOFZTDQ&bvm=bv.129389765,bs.1,d.cGc">without penalty rates</a>.</p>
<p>So, labour-supply effects mean that reducing penalty rates would probably mean even less experienced workers on Sundays. And that’s what it looks like when you walk into a New Zealand supermarket – without penalty rates – on a Sunday.</p>
<h2>What does it mean?</h2>
<p>The implications are stark.</p>
<p>If changes in Sunday penalty rates have no significant effect on the number of jobs, then cutting them would do two things.</p>
<p>It would reduce compensation for workers employed at unsociable hours – when that compensation is, for many, very important for meeting normal household expenses. And it would constitute a transfer of income from employees to employers, likely without an offsetting increase in jobs.</p>
<p>The most likely outcome, then, would be retail workers working longer hours for lower earnings, with little or no improvement in the number of jobs.</p><img src="https://counter.theconversation.com/content/59962/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Serena Yu was previously employed at the Workplace Research Centre at the University of Sydney, where she received occasional external funding. The research discussed here was conducted during this previous tenure, and was commissioned by the Shop, Distributive and Allied Employees Association and submitted to the Fair Work Commission during the review.</span></em></p><p class="fine-print"><em><span>David Peetz receives funding from the Australian Research Council and, as a university employee, has undertaken research over many years with occasional financial support from governments from both sides of politics, in Australia and overseas, employers and unions. The research discussed here was commissioned by the Shop, Distributive and Allied Employees Association and submitted to the Fair Work Commission during the review.</span></em></p>Are penalty rates no longer relevant in the retail industry — and do they cost jobs? Recent research compared two neighbouring states where one raised rates to the other’s level to find the answer.Serena Yu, Senior Research Fellow, University of Technology SydneyDavid Peetz, Professor of Employment Relations, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/597382016-05-31T19:49:48Z2016-05-31T19:49:48ZThe penalty rates time-bomb is ticking<p>A <a href="http://www.abc.net.au/am/content/2016/s4470275.htm?site=eyre">looming decision on weekend penalty rates</a> presents problems for both major parties in the lead-up to Australia’s federal election. The Fair Work Commission seems likely to hand down its decision in the controversial case soon after the federal election. </p>
<p>Nobody knows what the commission’s decision on penalty rates in the retail and hospitality industries will be. There seem to be more tea-leaf readers predicting it will cut Sunday penalty rates to match Saturday rates than who think it will make no changes. </p>
<p>If so, employer organisations would be happy, but many retail employees will be worse off. Pressure would grow for cuts to penalty rates elsewhere.</p>
<p>The commission president’s request for submissions on whether some employees should be given a <a href="https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/am2014305-dirs-290416.pdf">right to refuse to work on Sundays</a>, perhaps as a trade-off, has added to the confidence of the former group of tea-leaf readers. </p>
<h2>The Coalition dilemma</h2>
<p>For the Coalition, the debate is a reminder of the disastrous political consequences of over-reach in industrial relations. A decade ago, it introduced the WorkChoices legislation, frequently touted as <a href="http://www.australianreview.net/digest/2008/02/spies-butcher_wilson.html">costing the Howard government the 2007 election</a>. The main way in which it had affected workers’ pay was through allowing employers to <a href="http://www98.griffith.edu.au/dspace/bitstream/handle/10072/29660/59864_1.pdf?sequence=1">reduce penalty rates, overtime pay and shift allowances</a> below the award safety net.</p>
<p>Voters <a href="http://www.essentialvision.com.au/penalty-rates-3">overwhelmingly support</a> the retention of penalty rates. It doesn’t follow that this alone would change their votes, but the “Your Rights at Work” campaign <a href="http://www98.griffith.edu.au/dspace/bitstream/handle/10072/37764/66954_1.pdf?sequence=1">showed the potential salience</a> of the issue.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=566&fit=crop&dpr=1 754w, https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=566&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/124391/original/image-20160529-10041-1vopwa8.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=566&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The ‘Your Rights at Work’ campaign showed the potential impact of employment issues.</span>
<span class="attribution"><span class="source">David Peetz</span></span>
</figcaption>
</figure>
<p>Prime Minister Malcolm Turnbull has described the reduction of penalty rates as <a href="http://www.smh.com.au/federal-politics/political-news/malcolm-turnbull-lower-penalty-rates-inevitable-with-seven-day-economy-20151005-gk1yr5.html">inevitable</a>. While his predecessor, Tony Abbott, was renowned for an extremely conservative social philosophy, he was one of the few ministers at the time of WorkChoices <a href="http://www.theaustralian.com.au/business/business-spectator/the-dubious-virtues-of-abbotts-revolution-/news-story/5741eb0d22bafbbdac5feb7802e3f990">reported to be hesitant</a> about its direction. While Turnbull was not in the cabinet then, there is little evidence of his being less enthusiastic than Abbott about lowering pay or conditions.</p>
<p>The <a href="http://www.sbs.com.au/news/article/2015/12/23/show-courage-penalty-rates-lib-senator">enthusiasm of Coalition members</a> has <a href="https://theconversation.com/what-do-new-disclosures-reveal-about-coalition-ir-policy-17689">not waned</a>. But it must be done without cutting pay below the safety net. And it must be done in a way that enables the government to avoid blame. </p>
<p>That is why so much Coalition hope rests with the Fair Work Commission in this case. It’s partly why it asked the Productivity Commission to <a href="https://ministers.employment.gov.au/abetz/productivity-commission-review-workplace-relations-framework">review the workplace relations framework</a>. The Productivity Commission’s <a href="http://elr.sagepub.com/content/27/2/164.full">recommendations to cut penalty rates</a> attracted more attention than any other aspect of its report, though some parts proposed <a href="https://theconversation.com/workplace-reforms-would-hit-workers-outside-unions-hardest-45772">more radical changes</a>. Employers submitted the report to the Fair Work Commission case without the authors being cross-examined. </p>
<p>When the government commissioned the report, it anticipated it could promise <a href="https://theconversation.com/the-pc-review-that-could-bring-the-government-unstuck-36756">major changes to employment relations</a> at the 2016 election. The Productivity Commission would provide <a href="http://elr.sagepub.com/content/27/2/164.full">critical “third-party endorsement”</a> for radical change.</p>
<p>But the polls went south for the government, and now it faces a choice: announce a radical policy and risk voters’ wrath; or announce a mild policy, frustrate employers and hope voters have forgotten that the mild policy it presented in 2004 morphed into WorkChoices after that election. </p>
<p>The issue is so politically sensitive for the government that it declined to make a submission to the penalty rates case. Yet it cannot stay silent until the election. </p>
<p>There is, however, another pathway to satisfying corporate demands. In response to the <a href="https://theconversation.com/why-franchises-care-more-about-their-coffee-than-their-people-46948">7-Eleven scandal</a>, the Coalition recently announced <a href="https://www.liberal.org.au/latest-news/2016/05/19/protecting-vulnerable-workers-australia">increased powers for the Fair Work Ombudsman</a> to compel answers to questions. Lacking detail, this hasn’t attracted much attention yet. However, unless the government guarantees otherwise, those increased powers could also be used against workers.</p>
<p>This is not a mere theoretical possibility. Recently, the ombudsman launched <a href="http://www.smh.com.au/business/workplace-relations/fairfax-journalists-to-be-investigated-by-fwo-20160504-gom6ak.html">investigations into journalists</a> who walked off the job after Fairfax announced more redundancies. </p>
<p>One danger of using “union corruption” as the rationale for increasing the powers of the Australian Building and Corruption Commission was that it could be used to justify eventually extending the use of coercive powers <a href="https://theconversation.com/bringing-back-building-watchdog-helps-a-political-agenda-but-not-concerns-about-union-corruption-54051">to all industries</a>. Increasing the ombudsman’s coercive powers could be another way of doing that. </p>
<h2>The Labor dilemma</h2>
<p>The Labor Party, on the other hand, <a href="https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014305-sub-FOS-210316.pdf">made a submission</a> to the Fair Work Commission case. The main purpose might have been to embarrass the government by consolidating the many instances of Coalition support for cutting penalty rates. Labor did, however, argue against cuts to penalty rates. </p>
<p>That was the easy part. Labor is <a href="https://theconversation.com/labor-struggles-with-the-sticky-paper-of-penalty-rates-59487">under pressure</a> from unions to promise something more concrete – in particular, legislation to protect penalty rates, as <a href="http://www.sbs.com.au/news/article/2016/05/16/greens-want-weekend-penalty-rates-law">the Greens propose</a>. </p>
<p>Labor hesitates to commit to legislative action. This is partly because it does not want to appear to be undermining the <a href="http://www.sbs.com.au/news/article/2016/05/17/umpire-will-protect-penalty-rates-shorten">“independent umpire”</a>, which legislation would do. Yet Labor’s own Fair Work Act created a set of legislative obligations, the <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/introduction-to-the-national-employment-standards">National Employment Standards</a>, on matters that had been the sole prerogative of the Fair Work Commission. </p>
<p>Still, setting a precedent for legislative determination of penalty rates could also be used by the Coalition to opposite effect.</p>
<p>More valid would be concern about what legislation would do. Different awards set different penalty rates. This means that a single legislated formula for penalty rates would leave some workers better off and some worse off than at present. </p>
<p>The creation of national “modern awards”, which replaced a variety of inconsistent state awards, did precisely that. Both <a href="http://www.fullyloaded.com.au/industry-news/0909/nsw-award-rates-slashed-on-balance-drivers-worse-off/">unions</a> and <a href="http://www.pc.gov.au/inquiries/completed/retail-industry/submissions/sub129.pdf">employers</a> screamed they were worse off, cherry-picking different effects. </p>
<p>It’s a complexity Labor would like to avoid. </p>
<p>If legislation were to avoid greater rigidity than the current system, it would need to allow enterprise agreements to override legislated penalty rates if employees were better off overall, which the National Employment Standards do not allow.</p>
<p>Alternatively, legislation could entrench existing penalty rates (either by directly referring to modern awards, or by a detailed legislative schedule). But such legislation could not be passed before the commission brought down its decision in the current case.</p>
<p>So, legislation may need to lock in penalty rates that existed before the current case. That would undermine the idea of regular reviews of modern awards and the “flexibility” that allowed, which would worry a number of Labor policymakers.</p>
<p>Another approach would be to highlight Sunday penalty rates in the Objects of the Act (as part of the current mention of weekend rates). But that would still be no guarantee current levels would be maintained, and would not affect the current case.</p>
<p>So legislation is feasible, but it’s not easy. </p>
<p>In the meantime, Labor has committed to <a href="https://www.laborherald.com.au/people-families/only-labor-will-protect-penalty-rates-system-for-workers/">intervening in the case</a> after the election, to support penalty rates. </p>
<p>Here it follows a precedent set by the Whitlam government. Then, Labor <a href="https://pmtranscripts.dpmc.gov.au/release/transcript-2734">intervened</a> in the 1972 equal pay case immediately it was elected, after submissions had closed. Days later, the commission issued <a href="https://www.fwc.gov.au/waltzing-matilda-and-the-sunshine-harvester-factory/documents/equal-pay-case-1972">one of its most famous decisions</a>, endorsing a broader interpretation of equal pay. </p>
<p>Since then, the Commonwealth’s reopening of the case has been lauded as critical in its success. Whether this was really so is impossible to know. But it showed the possibilities, and the symbolic value, of such actions.</p>
<h2>Who’s in the hottest seat?</h2>
<p>The lack of employer outrage at the increased powers of the Fair Work Ombudsman to investigate corporations at the top of franchise chains might mean they have been given a nod and a wink that all will be OK. </p>
<p>But voters want more. As the election draws closer, the government must play its hand on penalty rates and its response to the Productivity Commission <a href="https://ministers.employment.gov.au/abetz/productivity-commission-review-workplace-relations-framework">review that it requested</a>.</p>
<p>Labor has already played its hand. In some ways it is a bet each way. But the delegation of part of industrial relations policymaking to third parties holds more risks for the government than for Labor.</p>
<hr>
<p><em>This article has been amended to clarify the reference to highlighting Sunday penalty rates in the Objects of the Fair Work Act.</em></p><img src="https://counter.theconversation.com/content/59738/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Peetz receives funding from the Australian Research Council and, as a university employee, has undertaken research over many years with occasional financial support from governments from both sides of politics, in Australia and overseas, employers and unions. In the Fair Work Commission case on penalty rates in the retail industry, mentioned in this article, he was co-author of a joint expert evidence report commissioned by one of the unions on the demographic composition of Sunday retail workers.</span></em></p>Cutting penalty rates can be a vote-changer and the looming Fair Work Commission decision is tricky for both sides of politics. So what cards do the parties hold and how might they play them?David Peetz, Professor of Employment Relations, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.