Labor's real 'plan of action'

Issue 

In his election night acceptance speech, PM Kevin Rudd said that all of Labor's policy now becomes a "plan of action" for the incoming Labor government. As to Labor's oft repeated promise to "tear up Work Choices", their plans — as far as they actually go — are detailed in the Forward with Fairness: Policy Implementation Plan, released by the then Labor opposition in August.

As the first step in crafting its (Work Choices lite) IR system, Labor will introduce legislation for "transitional arrangements" in the first half of 2008. Julia Gillard, the new minister for employment, industrial relations and education, told Channel Ten's Meet the Press on December 2 that Labor's transitional arrangements will "end the ability of employers to make Australian Workplace Agreements" (AWAs). However, according to the Policy Implementation Plan (PIP), this is only part of the story.

While Labor's transitional legislation will stop the signing of new AWAs, it will not prevent existing individual agreements from running their course. "Labor understands that Australian employers and employees need certainty and that it would create great concern and confusion if Australian Workplace Agreements were suddenly terminated", the PIP intones. So while no new AWAs will be registered, "AWAs made prior to the implementation date of Labor's Transition Bill will remain in force and may only be terminated in accordance with current rules which allow termination by agreement between the parties during the term of the AWA or by one party providing 90 days' notice to the other after the nominal expiry date of the agreement". In other words, if you've been stung by the boss to sign an AWA, you're stuck with it. And Labor won't care if it runs its full course — right through to December 31, 2012!

But the fun doesn't end there. Labor will also introduce an Interim Transitional Employment Agreement, which, as outlined by the PIP, will be able to be used by any employer who had as few as one employee on an AWA as of December 1. ITEAs will work very similarly to the Howard government's AWAs as they applied after the reintroduction of the "fairness test" — there will be no extra restrictions on content; they will be acceptable as long as "the ITEA does not disadvantage the employee against a collective agreement applying to the work the employee will perform at the workplace or, where there is no collective agreement, the applicable award and the Fair Pay and Conditions Standard". ITEAs can run until December 31 2009.

At the same time as it introduces legislation to "abolish" AWAs (at least in name), Labor will also begin the process of award simplification, that the former Coalition government failed to carry out. Gillard told Meet the Press, "Today, our productivity statistics are woeful. And to fix that we need to have a better industrial relations system, one that's focused on productivity." A key part of that focus on productivity for Labor is award simplification and the provision of "flexibility" clauses in all awards and collective agreements.

From early 2008, according to the PIP, Labor will instruct the Australian Industrial Relations Commission to begin the process of simplifying all awards to 10 allowable matters. The allowable matters will cover: minimum wages; type of work performed; arrangements for when work is performed — including hours of work, rostering, rest breaks and meal breaks; overtime rates; penalty rates for employees working unsocial, irregular or unpredictable hours, on weekends or public holidays, and as shift workers; provisions for minimum annualised wage or salary arrangements; allowances; leave, leave loadings and the arrangements for taking leave; superannuation, and consultation, representation and dispute settling procedures.

For Labor, awards will be (just) a safety net, but a very flimsy one, where loadings, penalties and allowances can all be rolled into an "annualised wage or salary". In addition, the "flexibility condition" may mean workers lose all control over their rostering, hours, breaks or other conditions — but workers need not worry because the "Australian Industrial Relations Commission must ensure that the flexibility clause cannot be used to disadvantage individual employees", so everything is bound to be alright.

While Labor is committed to restoring the right of workers to make a collective bargain with their employer, it will also introduce what it calls "genuine non-union agreements". "Under the system of the former Labor government, an employer was required to notify an eligible union that it had commenced negotiations with its employees for a 'non-union' agreement and required to provide each such union a reasonable opportunity to take part in the negotiations for the so-called 'non-union' agreement", the PIP explains. "The union was also entitled to be heard by the Australian Industrial Relations Commission in connection with the approval or extension of the agreement. None of these requirements are in place under Forward with Fairness."

But the flexibility arrangements don't stop there. Workers earning $100,000 a year (whatever their particular job or classification) in ordinary earnings will be exempt from the coverage of awards. They will have no safety net of conditions to fall back on. And Labor will also give free rein to common law agreements, in order to frame the "flexibility" agreements between bosses and workers. The only stipulation is that the agreements must meet minimal standards including wages, hours worked, leave and sick leave.

As for the balance of Labor's commitment to "tear up" Work Choices, workers will either have to wait, or be disappointed completely. On Meet the Press, Gillard indicated that legislation introducing Labor's new unfair dismissals provisions (that only apply to small business after a worker has been employed for 12 months) would take some time. "We can't overnight undo all of the harm that the Howard government has done to working Australians through Work Choices", she said. "We need to legislate for change. We want to legislate in a careful and measured way. We want to get the legislation right." The December 5 Age newspaper, argues that the legislation will not finally come into force until 2010. Certainly, Labor will not even begin drafting the legislation until its so-called "transitional" legislation has been passed.

Those looking to Labor to restore the rights to organise in the workplace will have to look hard to find it in Labor's legislative plan. The PIP clearly states, "Labor will be tough on industrial action in breach of Labor's laws. Labor's new industrial relations system will not permit industrial action being taken outside our clear, tough rules", including a prohibition outside of a bargaining period, in pursuit of a pattern (industry-wide) bargain, or without the approval of a secret ballot. Labor will not be any fairer to union officials, either. "Labor will maintain the existing [Coalition government] right of entry rules", the PIP says. Labor will also keep the draconian Australian Building and Construction Commission until 2010 and then roll its powers into a special agency of the Orwellian-named Fair Work Australia.

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