Work Choices and the Regulation of Working Time Professor Andrew Stewart School of Law, Flinders University Hawke Institute Symposium, 7 February 2006

‘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 Government’s 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

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

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

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

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

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

What EB has meant for working time Some outcomes have promoted worker- oriented flexibility eg extension of sick leave to cover carer’s leave, provision of paid maternity leave But employer-oriented flexibility has dominated cf federal government’s repeated claims about ‘family-friendly’ provisions

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

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

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

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/carer’s leave, plus extra 2 days unpaid carer’s leave if needed, plus 2 days paid compassionate leave per occasion 12 months unpaid parental leave

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

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

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

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 …