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Michael Quinlan The University of New South Wales WorkChoices, the Independent Contractors Bill

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WorkChoices, the Independent Contractors Bill & other federal initiatives: How ... with 100 employees (re others uncontested dismissal scope-operational reasons) ... – PowerPoint PPT presentation

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Title: Michael Quinlan The University of New South Wales WorkChoices, the Independent Contractors Bill


1
Michael QuinlanThe University of New South
WalesWorkChoices, the Independent Contractors
Bill other federal initiatives How will they
affect workers health and safety?Paper
presented to Promoting OHS Standards Lets Band
Together Conference (Safe Work Week) Palladium at
Crown, 8 Whiteman St Southbank Melbourne, 25
October 2006

2
Means more job insecurity changes to work
organisation
  • No unfair dismissal protection for firms with
    lt100 employees (re others uncontested dismissal
    scope-operational reasons)
  • Prohibited agreement content (s356 Reg 8.5)
    includes terms re engagement of contractors,
    labour hire
  • Weaken other award/agreement protections (eg rest
    breaks)
  • Remove protections enshrined in state IR laws eg
    recent NSW Secure Employment Test case decision
  • Result will be growth in fixed contract, leased
    jobs, restructuring, outsourcing/use of
    subcontractors, multiple job-holding, long shifts
    unpaid overtime

3
Review of research of OHS effects of job
insecurity changed work arrangements
  • Reviewed 106 published (Aus overseas) studies
    1966-2005 (weak repeats culled) using array
    of indices (injury, disease, hazard exposure,
    stress, compliance)
  • 61 studies of job insecurity/downsizing (53 or
    87 found adverse OHS effects)
  • 23 studies of outsourcing/subcontracting
    home-based work (23 or 100 found adverse effect)
  • 22 studies of casual work/labour hire (15 or 68
    found worse OSH compared to permanent workers).
  • Clear evidence shift to greater insecurity likely
    to lead to further deterioration in OHS (NSW
    Secure Emp case)

4
Some risks associated with these changes
  • Understaffing/work intensification contingent
    pay (can extend to community eg healthcare,
    trucking)
  • Presenteeism afraid to refuse work or take
    leave when sick for fear of loss of job
  • Conducive to hard-nosed HR which in turn foments
    poor interpersonal relations, bullying etc
  • Disorganisation due to breakdown in induction,
    training, supervision communication, less
    experience (esp in high turnover situations)
  • Stress associated with poor work/non-work
    balance, budget/multiple jobholding hard-nosed
    HR

5
The effects An example
  • Small high hazard manufacturing plant dismissed
    existing workforce as trouble-makers on March
    27
  • Over next three weeks hired succession of young
    and relatively inexperienced workers
  • OHS inspection revealed series of serious hazards
    including inadequate induction training,
    personal protective equipment and provision of
    MSDS (and control practices) as well as other
    workplace hazards (physical and work practices)

6
WorkChoices De-collectivisation
  • WorkChoices further encourages individual
    contracts discourages awards/collective
    agreements by
  • Winding back role of awards making it easier to
    convert from awards to individual agreements
    (loss of protections like rest breaks)
  • Placing further limits on role of unions (to
    negotiate, take industrial action and enter
    workplaces)
  • S356 Reg 8.4 prohibits agreements re union
    training, paid meetings
  • Diminishing the role of the Australian IR
    Commission making it harder for unions to run
    cases(includes OHS cases)
  • Emasculating state/territory IR regimes
  • Increasing scope for legitimate dismissal making
    it harder to prove whistle-blower or activist has
    been victimised

7
WorkChoices De-collectivisation will affect OHS
  • Substantial international evidence that
    unions play positive role in relation to OHS (see
    David Walters research)
  • Unions provide critical logistical support for
    employee HSRs who mostly in unionised workplaces
    (see too effect of s356 Reg 8.5cd re training)
  • Lower wages can be safety issue due work overload
    corner-cutting
  • Non-union or workers on individual contracts less
    likely to know their OHS/legal rights, speak out
    or have their concerns treated seriously
  • Self-employed subcontractors labour hire
    workers also reluctant to report (eg NSW Mine
    Safety Review 2005)
  • Current study found most OHS inspectors already
    see worker fear of victimisation as serious
    inhibitor on problem reporting
  • Harder for unions to run OHS cases re changed
    work systems (eg A/Post) staffing levels (eg
    nurses), hours of work use of contractors (see
    too fed contractor law also effects on state
    laws - except outworkers?)

8
WorkChoices Other effects
  • WorkChoices has other OHS effects
  • WorkChoices doesnt override state OHS Workers
    Comp laws (ambiguities where OHS laws deal with
    hours of work?) including powers of government
    inspectors to enter etc but
  • While ostensibly retains state IR laws re worker
    reps right of entry of worker reps for OHS
    purposes Part 15 of WR Act imposes more
    restrictive requirements/procedures on entry by
    officials (must hold fed state permits, give
    24hrs notice obey reasonable employer requests)
  • WR Act also provides civil penalty provisions if
    officials entering obstruct/act in improper
    manner (Hooker review, WA, 2006 19-23)
  • Right of entry provisions critical to effective
    protection

9
WorkChoices Other effects continued
  • WR Act retains exemption for stop work over
    imminent OHS risk (re prohibited industrial
    action) but onus now on union or employees to
    prove concern reasonable
  • Certificate requirements re sick leave greater
    power imbalance likely to induce more
    presenteeism burnout
  • Move from awards/weaker AIRC union role - more
    difficult to identify/monitor/address
    exploitation/risk exposure of short-term workers,
    esp temporary(work visa, backpackers, students)
    illegal foreign workers (already serious issue)
  • Exclusion/overriding of state IR laws can have
    other effects including putting injured workers
    at greater risk of dismissal

10
WorkChoices must be seen in the context of other
federal developments
  • Federal Independent Contractor Bill (prevents
    contractor access to award protection will
    encourage sham contractor arrangements
    exceptions for outworkers truck-drivers?
    recognise this)
  • Federal law invalidate industrial manslaughter
    provisions of ACT OHS Act
  • Building and Construction Industry Improvement
    Act 2005 (Neutral policing? Note WA industrial
    action)
  • Abolition of NOHSC and its replacement with ASCC
    (closer ministerial control, cost/compo focus
    LCD uniformity agenda)

11
WorkChoices and related developments continued
  • Changes to ComCare legislation 2005 means large
    employers can get workers comp cover via ComCare
    rather than states then subject to federal not
    state etc OHS laws
  • Review of federal OHS Act to meet needs at
    enterprise level response to employer (ACCI)
    complaints of excessive red tape. Discussion
    paper issues include application of employer
    duties to overseas operations, removing power of
    HSR to issue PINs, steps prior to issuing PINs,
    recovering damages caused by HSR actions
    employer/employee agreed arrangements re
    representation of HSRs. Note ComCare no real
    inspectorate.

12
Likely Adverse Effects of Changes Summary
  • Lower wages, more pressure less job
    satisfaction
  • Less access to legislative entitlements/protection
  • Worse occupational health and safety outcomes
    (injuries, disease, stress, occupational
    violence)
  • Public health and safety threats (eg healthcare
    and transport)
  • Work/family imbalance adverse effects on
    families (poverty/budgeting, education etc)
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