Business gains in National Employment Standards

June 20, 2008

"Employers win in IR overhaul", was the front-page headline of the June 17 Australian Financial Review, reporting the outcome of the Rudd Labor government's new National Employment Standards (NES), released on June 15.

The 10 industrial standards will create a series of legislated minimum conditions, including a 38-hour working week plus "reasonable additional hours", four weeks' annual leave (five for shift workers), 12 months' unpaid parental leave for each parent, 10 days' personal leave and the right to request flexible work arrangements to accommodate family responsibilities.

The NES will come into effect in 2010 as part of the government's new workplace relations system. However, they will more immediately form the basis for the Australian Industrial Relations Commission to re-write and "simplify" more than 2400 awards between now and January 2010.

The NES is being presented as being a further step towards dismantling Howard's Work Choices regime. However, in important ways, the NES not only preserves Howard's laws, but goes even further in creating "flexibility" for bosses.

"This is a core building block for the future of a fair and flexible industrial relations system for all Australians in the federal system", PM Kevin Rudd told reporters on June 16. "These national employment standards cannot be stripped away."

However, the legislation does allow for holidays to be "stripped away". Under Work Choices, workers had the "choice" to cash-in two weeks annual leave a year. Labor's NES extend that to four weeks — with the added fig leaf that it can't be done under duress.

While there are minimal gains for workers under the NES (such as the provision for both partners to take 12 months unpaid parental leave), the government's intent is to make things more "flexible" for the bosses.

For instance, as the June 17 AFR noted, "Employers have won the ability to force senior staff and high-income earners to work overtime unconstrained by a new 38-hour maximum working week that will be part of the Rudd government's overhaul of employment laws". The NES also make it possible for a boss to knock back requests for more flexible work hours, without any right to appeal.

The NES also enshrine the Work Choices "flexibility" of allowing bosses to "average" the 38-hour week and give no guarantee of overtime being paid where extra hours are worked. As long as the "average" time worked is 38 hours a week, there is no maximum that may be worked in any particular week.

Jeff Lawrence, Australian Council of Trade Unions (ACTU)
secretary, commented on June 16: "These 10 new National Employment Standards provide the bare minimum that every Australian worker should expect …

"However, the ACTU believes the government could have gone further by putting an onus on employers to give fair consideration to the requests of employees and for workers to be able to appeal unreasonable refusals." Lawrence also pointed out that Work Choices legislation was still in operation while the government drafted its alternative.

The June 18 AFR noted that "Unions were disappointed the government blocked their calls for a simple appeals mechanism for disputes over employers' decisions to reject leave requests on undefined 'reasonable business grounds'".

However, the article stated that workplace relations minister Julia Gillard had since "created an opportunity for a dispute resolution mechanism in changes to her instructions to the Australian Industrial Relations Commission, which is undertaking a complete overhaul of awards based on the new national employment standards", which ACTU industrial officer Cath Bowtell described as "half fixing the problem", by setting up a dispute resolution mechanism outside of the award structure.

"The NES don't really give workers anything at all", Tim Gooden, secretary of the Geelong and Regional Trades Hall Council told Green Left Weekly. "All the conditions that are supposedly guaranteed are already in our awards.

"What Labor is proposing, is to pick up from where Howard left off and to strip awards back to 10 allowable matters.

"As conditions are in an award, unions can take action to defend them", he went on. "Once you put them in legislation, then it's up to the Workplace Ombudsman to enforce them. If the 10 important matters are taken out of awards and put in the NES, the unions could no longer legally take action against an employer for breach of the award, as is currently the case. Meanwhile the ombudsman is refusing to prosecute breaches under $5000, so at the end of the day workers will be worse off and unions will loose more authority under Labor's plans.

"And most of the provisions are so 'flexible' anyway that you could drive a truck through them. What the ACTU should be calling for is that Labor leaves awards alone, that it stop award stripping and carries through on its promise to tear-up Work Choices once and for all", Gooden said.

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