Labor’s new industrial relations bill attacks the lowest paid

November 6, 2022
Coles workers taking action. Photo: RAFFWU/Facebook

For months the Australian Council of Trade Unions (ACTU) and federal Labor have been spruiking new industrial relations (IR) laws as the vehicle to miraculously improving wages.

Do not believe the spin: they do the exact opposite.

In fact, the proposed new IR laws contain calamitous attacks on working people. They attack the lowest paid workers of all — those who rely on the better off overall test (BOOT).

The laws are rushed and the consultation has not been wide.

That big business, ACTU and the Shop, Distributive and Allied Employees Association (SDA) were involved in the drafting either says they are bereft of intelligence or vindictively evil.

Below are 10 of the worst changes they want to inflict on workers:

1. BOOT is gone. In the election campaign, Labor forced the Liberal National Parties to promise there would be no changes to the BOOT. They claimed BOOT meant “every employee better off” and any change meant every employee would not be better off. Labor could not have been more clear in its pre-election promise.

Now elected, the Labor hypocrisy machine has created a new test, which is not the BOOT. If not stopped, it will cause millions of workers to lose billions of dollars.

2. Labor will strip BOOT of a “prospective employee test”. This means that when the FWC assesses an agreement it will not assess how future employees will be impacted. This is deliberate. McDonald’s, Coles and every other exploiter of labour is salivating.

They could grandparent penalty rates, casual loading, roster rights and other award conditions to current employees and strip every single right from future employees.

Since future employees are prospective employees, the Fair Work Commission (FWC) would not consider them at all in the test. This is far worse than Work Choices. We will see a return to the rotten deals inflicted by SDA on workers at McDonald’s, Domino’s, Pizza Hut, Coles, Woolworths, KFC, Bunnings, Officeworks, Kmart, Big W and more. Millions of low paid workers will have billions of dollars stripped from them.

3. When those rotten deals are to be assessed, the voice of SDA will be the “primary consideration” for the FWC. While the views of workers, Retail and Fast Food Workers Union (RAFFWU) and employers will be given consideration, none of those — including employees and employers — will be given equal consideration to the SDA.

For decades, the SDA told the FWC its rotten deals met the BOOT, when they clearly did not. This attempt to sideline RAFFWU and any employee who dares speak up is a pathetic attempt by ACTU/Labor/SDA and big business which owns them to return to the dark days which cost millions of workers billions of dollars.

4. The deals will also be assessed, not by a line item assessment, but a “flexible global assessment” which will allow vastly different conditions to offset losses in a deal. For example, a commissioner could determine the loss of a uniform allowance, or a penalty rate, is offset by some other entitlement, entirely unrelated to the lost condition.

5. The deals will be assessed considering only roster patterns and kinds of work “reasonably foreseeable” at the time of the test. In effect, workers will have to prove an employer does not intend to use a different roster or type of work.

For example, KFC might say they have no casual employees, so it does not have to pay a casual loading. A human resources manager could say they have no intention of engaging casual employees. Lo and behold, once the agreement with no casual loading is approved, KFC might decide to retrench all part-time employees and rehire them as casual workers. This could be a lawful way to avoid any casual loading.

The same could occur with a business that does not open on Sundays, so no Sunday penalty rate is included in the deal. After approval, lo and behold, the business does open on Sundays and workers are rostered to work on Sundays with no penalty rates.

6. The purported protection to this happening is that workers could mount their own legal case to have the agreement assessed again by a “reconsideration mechanism”. This is a fix to a problem which does not currently exist.

Workers will be required to run expensive cases over many months or years and, in the meantime, they will not get a cent of the wages stolen by the original deal.

To avoid doubt, there is no credible evidence of any employer, anywhere, having an issue with the current BOOT. There are just a series of aggrieved retail and fast food employers upset because RAFFWU has forced them to pay a billion dollars or more per year in wages because their old rotten deals with the SDA have been stopped.

7. The new laws will empower the FWC to amend an enterprise agreement without any capacity for workers (or employers) to contest the amendment. In fact, the FWC is not even required to seek the views of workers, employers or bargaining representatives: it may seek their views.

Critically, an employer will not know if the agreement they agree on will be the agreement imposed on them. Currently, undertakings may not be accepted by an employer leaving an agreement not approved.

In some ways amending an agreement over the wishes of an employer can be a better process, but it will lead to employers not agreeing in the first place. In doing so, it will make it harder for workers to secure better wages and conditions through enterprise bargaining.

8. Express requirements to explain the terms of a new agreement, and the effect of those terms, are gone. A new generic document will outline this is an expectation and the FWC will consider that document in determining whether employees have genuinely agreed to the agreement. However, the express direct requirement on employers is gone.

9. Industrial action will require a new Protected Action Ballot Order (PABO) every three months. The PABO process is a stage — introduced in Work Choices and maintained in the Fair Work Act — which requires employees to authorise the industrial action they might take to secure an agreement. PABOs are unheard of anywhere in the world and are a fundamental handbrake on raising wages because they massively limit the right to strike.

Essentially, a complex application is made to the FWC, an Order dictates the steps which will be taken over the ballot period, employers and unions create lists of workers, a ballot agent conducts a ballot and only when the ballot is declared is worker action authorised.

At every stage, a boss can object to the process and create roadblocks. They do every week.

The change will mean workers need to go through this process every three months, creating a huge organisational cost to unions, the FWC and the Australian Electoral Commission.

In order for this to work, unions will effectively have to apply for a new order almost immediately after getting the first order. It is bureaucracy gone mad and trying to fix a problem that does not exist.

10. Obtaining a PABO will automatically create a conciliation process over bargaining in the FWC. While further discussions during action can be a good thing — requiring parties attend the FWC and participate in bargaining separate to the ordinary process underway outside the FWC — it is further nonsensical bureaucracy.

There are already processes for unions and employers to take bargaining issues to the FWC. This just creates more impediments on workers and their unions accessing lawful protected industrial action.

Despite the government calling the bill amending the Industrial Relations Act the “secure jobs” bill, it does nothing to improve the job security of casual workers. In truth, it only attacks them.

[Josh Cullinan is the secretary of the Retail and Fast Food Workers Union.]

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