Work Choices and the Regulation of Working Time

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Work Choices and the Regulation of Working Time

• Professor Andrew Stewart
• School of Law, Flinders University
• Hawke Institute Symposium, 7 February 2006

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Choice and flexibility at the workplace

• If we are to reach a better balance between
  work and family then we must continue to make
  sensible, practical and fair changes to the
  workplace relations system.
• The Governments workplace relations reforms
  will continue to ensure that the choices provided
  to Australian families, through more jobs, secure
  income, stronger protections and increased
  flexibility, will be maximised.
• WorkChoices A New Workplace Relations System,
  October 2005

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Regulation of working time in Australia

• Unlike many other countries, no general statutory
  regulation of working time (as opposed to leave)
• recent exceptions in Victoria (WR Act 1996 Sch
  1A) and Qld (IR Act 1999 s 9)
• But detailed regulation of arrangements in
  particular industries, occupations or firms
  through award system
• note in particular constraints on scheduling of
  work hours and imposition of penalty rates for
  work at anti-social times

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The Work Choices reforms

• Workplace Relations Amendment (Work Choices) Act
  2005
• amends Workplace Relations Act 1996 with effect
  from March/April 2006
• expands federal system of regulation to cover
• all trading, financial and foreign corporations
• all other employers in Victoria and Territories
• Commonwealth agencies
• should cover at least 75 of workforce

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Impact on regulation of working time

• 2 main areas of potential impact
• new minimum standards on working time and leave
• increased flexibility for agreement-making on
  working time
• Though need to see these in context of other
  changes that make it harder for workers to
  contest management decisions/initiatives
• eg removal of unfair dismissal rights,
  restrictions on industrial action, etc

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Some background

• As in other countries, pursuit of working time
  flexibility in Australia since 1970s has sprung
  from two sometimes divergent objectives
• enhancing worker flexibility and autonomy (eg
  flexitime, RDOs)
• enhancing employer control over work scheduling
  and hence enterprise efficiency

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What EB has meant for working time

• Under formalised enterprise-level bargaining
  promoted since late 1980s
• real wages have continued to rise for all workers
  (cf experience in other countries)
• but major trade-offs sought and won by employers
  on regulation of working time (dominant item on
  EB agenda for most)
• constraints on scheduling hours lessened/removed
• annualised salaries to remove penalty rates
• greater capacity to schedule or even buy out leave

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What EB has meant for working time

• Some outcomes have promoted worker-oriented
  flexibility
• eg extension of sick leave to cover carers
  leave, provision of paid maternity leave
• But employer-oriented flexibility has dominated
• cf federal governments repeated claims about
  family-friendly provisions

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Two other important features

• The disappearing middle in working time in
  Australia
• many working either excessively long hours or in
  part-time employment
• Prevalence of casual employment
• often in fact involves stable and long-lasting
  engagements
• but generally perceived (whether rightly or not)
  to give employer almost total flexibility over
  hours

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The new minimum standards

• Australian Fair Pay and Conditions Standard, plus
  separate standard on holidays
• Apply to all employees working for federal system
  employers, except where
• contract or workplace agreement more favourable
  (as per rules to be set out in regulations)
• award has more favourable provisions on annual,
  personal or parental leave
• pre-reform federal or State agreement applies

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Working hours standard

• 38 ordinary hours per week (or averaged over
  agreed period of up to a year)
• employee can also be required or requested to
  work reasonable additional hours
• judged by reference to various factors, including
  both personal circumstances and operational
  requirements
• employee also entitled to be paid for each hour
  they are required or requested to work, but no
  right to be paid overtime or penalty rates

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Leave standards

• 4 weeks annual leave, plus extra week for some
  shiftworkers
• up to 2 can be cashed out on written request from
  worker, but only pursuant to a workplace
  agreement
• Personal leave
• 10 days paid sick/carers leave, plus extra 2
  days unpaid carers leave if needed, plus 2 days
  paid compassionate leave per occasion
• 12 months unpaid parental leave

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Public holidays

• Employee entitled to take a day off on public
  holidays
• But may be requested by employer to work, and
  must establish reasonable grounds for refusal
• relevant factors again include both personal
  circumstances and operational requirements

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Agreement-making

• Award-based no-disadvantage test abolished
• Hence employers may lawfully offer agreements
  that reduce or remove controls on scheduling of
  hours or leave
• Award provisions on penalty rates are
  protected, but only in the sense that
• they apply unless explicitly overridden by an
  agreement
• they apply if agreement terminated and not
  replaced

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The impact in practice

• At best
• continuation of steady trend towards greater
  employer control over work scheduling
• minority of employers continue to develop
  genuinely family-friendly arrangements
• At worst, aggressive cost-cutting in some sectors
  sees elimination of penalty rates without
  compensation

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The impact in practice

• No obvious effect in countering socially damaging
  long hours culture
• Perhaps more jobs and hours for underemployed,
  but at the expense of even greater strain on
  family time
• Unless of course we can trust the market