The hole in Kennett's 'safety net'
By Di Quin
MELBOURNE — The Kennett government's Employee Relations Act purports to establish a "safety net" of minimum conditions for the new employment agreements being forced on many workers.
Paltry as these conditions are, there may be loopholes which could allow unscrupulous employers to avoid even these minimum conditions, according to separate legal advice tended to the Victorian opposition and to the Melbourne Age.
Since "employment agreement" is not compulsory under the new act, employers and employees can legally contract out of, or undercut, the minimum pay and conditions of the act's Schedule 1. This stipulates the "safety net" of: four weeks' paid annual leave; five days' paid sick leave per year; the minimum hourly rate of pay under the relevant "old" award; and a package of unpaid maternity/paternity/adoption leave.
The act does not define these as minimum conditions of employment, only as minimum terms and conditions of an "employment agreement" made under the act. So, according to several lawyers, an employer can avoid these minimum terms and conditions by employing people on contracts made outside the act.
One way to do this is not to put anything in writing because an unwritten agreement is not an "employment agreement". Hence an oral agreement such as "I'll employ you at $5 an hour for 50 hours a week with no holiday pay, sick pay or overtime pay" is perfectly legal.
It might even work with a written agreement which includes the proviso, "This contract is not an agreement made under the Employee Relations Act 1992".
While the Kennett government is denying this loophole exists and insists that no amendments are needed, Professor Richard Mitchell, associate professor of labor law at Melbourne University, told Royce Millar of the Melbourne Leader that this was "absolute rubbish".
"The provisions of the Employee Relations Act provide no protection for young workers — or any other workers — against exploitation", said Mitchell. Job Watch coordinator Jamie Doughney agreed. New entrants to the work force (mainly young people) or re-entrants would be the easiest targets, he said.
Section 35 of the act says that anyone who employs workers under 18 to do award work must pay them award wages and conditions. But the catch is that "award" is defined as a "new" award — one made under the act — and there are no such awards yet!
Workers who were covered by old state awards on March 1 and who have not signed new contracts have the "protection" of the terms and awards (frozen at 1992 levels and minus over-award pay and conditions).
[Di Quin is the Democratic Socialist candidate for Melbourne in the federal election.]