Penalty rates and #lastpeoplesday

I’m off to speak to young unionists today as part of the #lastpeoplesday campaign on penalty rates.

Under John Howard the Liberal National Coalition brought in AWAs. These were individual agreements in which employers had all the power. They could, and did, expressly strip away penalty rates. As Bill Shorten has pointed out, under Work Choices, 63 per cent of AWAs ripped away penalty rates.

The Liberals want to widen Individual Flexibility Agreements and weaken the better off overall test to take into account “non-monetary benefits”. They will not admit to wanting to bring back AWAs because they know that AWAs are forever associated with Work Choices. But the Australian Retailers Association has already been reported as saying it wants to use the changes to individual flexibility agreements to strike deals with workers to get rid of penalty rates.

The justification for these deals is usually that they would be voluntary. But how ‘voluntary’ is it when an employer wants to change your conditions, if the employer’s a business and you’re a young worker? AWAs were generally ‘voluntary’ in the sense that you could take the job, with the AWA, or leave it. The fact is, industrial relations is often about power. Individual workers generally don’t have much. Undue influence and coercion laws are scant protection in the face of the power differential between businesses and their young workers.

Work Choices wasn’t a new idea that John Howard had in 2005. The changes he made to the Workplace Relations Act in 2006 were changes that he had wanted to make in 1996, but couldn’t because he didn’t control the senate. And back in 1993, the Liberal leader wanted youth wages of $3 per hour. That was low, even back then. In other words, the Liberals have a long history of wanting to weaken working people – especially young workers – to make it easier to reduce their conditions.

We can’t trust the Liberals and Nationals when it comes to penalty rates. We know that retailers want to get rid of them – as United Voice’ national secretary, Louise Tarrant, has said, Restaurant & Catering Australia has asked Fair Work Commission to change the national Restaurant Industry Award to remove a lot of people’s penalty rates. The Liberal party is the party of big business and they have been obsessed with changing labour laws, to weaken conditions for employees, for decades. It’s pretty plain that they would support employers using individual agreements to undermine penalty rates.


The 2Day FM general protections case

Andrew McMillen (@NiteShok) quoted me in his thoughtful @BuzzFeed article prank calls today:

The piece is mainly about the 2Day FM prank call that preceded the suicide death of a nurse, from the hospital that was treating the Duchess of Cambridge for hyperemesis gravidarum. Mr McMillen notes that one of the prank callers, radio announcer Mel Greig, has made an application to the Fair Work Commission alleging the employer failed to provide a safe workplace.

I’m not acting for Ms Greig. From the reports I’ve read, her Fair Work Commission proceeding is brought under the general protections part of the Fair Work Act. Those are the provisions that say you cannot be treated adversely because you have workplace rights, because you have exercised workplace rights, for discriminatory reasons (sex, race etc) or because of your union activity, among other things.

Applicants might use those provisions, instead of unfair dismissal provisions, because they apply to things other than dismissal – such as demotion. The general protections also allow for broader remedies – in unfair dismissal cases, the maximum possible compensation is around $65,000, and you can’t be compensated for the humiliation and distress you suffer. General protections claims don’t have those limits.

But to make a general protections claim, it’s not enough just to say that the employer’s actions were unfair. The court has to decide that the employer acted for reasons that are not allowed under the general protections part of the Fair Work Act.

You can use the general protections claim  to claim on the basis that you have been sacked (for example) because you have a workplace right, or because you’ve exercised a workplace right. In simple terms, and subject to work health and safety laws, employees have a workplace right to a safe workplace. Without seeing the court documents, I’d say that the claim in relation to ‘safe workplace’ has been made has been to allow Ms Greig to use those ‘general protections’ provisions.

It’s an interesting matter. It may settle confidentially, but if not, and if Greig takes the matter to the courts, it will be worth taking note of the decision.



New federal discrimination protections started today

In June, the Sex Discrimination Act 1984 (Commonwealth) was amended to prohibit discrimination on the grounds of:

The laws also update the ground of ‘marital status’ to ‘relationship status’.

The changes followed the federal government having to abandon its proposed federal discrimination law consolidation earlier in the year because it was not going to attract sufficient support in the parliament. I welcomed the consolidated legislation at the time, as it would have been an improvement on the current patchwork of federal discrimination statutes, and would have introduced important protections. Though I’m disappointed that the consolidated legislation didn’t make it through, I am very pleased that our nation’s parliament has seen fit to prohibit discrimination against LGBTI people.

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 can be found on Comlaw.