In politics, there’s something to be said for striking while the iron is hot.
Last year, as COVID-related restrictions hit businesses hard, there was a window of opportunity to revisit some industrial relations laws and regulations to bring them into line with the 21st-century digital world. After all, those laws and regulations never envisaged a situation where large proportions of workers would be working from home; a situation in which inflexible job descriptions and strict demarcations could wreak near fatal commercial damage on businesses.
Sadly, the federal government hesitated, and when it instituted the expensive JobKeeper wage subsidy scheme — the total cost is likely to top $90bn — the pressure to make some important reforms to the industrial relations system was reduced.
To be sure, the Fair Work Commission made several short-term concessions last year to accommodate work from home, in particular. And no doubt there was a great deal of informal flexibilities being offered up by workers in the knowledge that the alternative was the dole queue.
In the place of immediate action, Industrial Relations Minister Christian Porter convened remote workshop sessions on the five themes of casual work, award simplification, enterprise agreements, wage theft/compliance and greenfields agreements.
The attendees were never publicly identified, the discussions were held in camera and any agreed positions remained under wraps. It was the antithesis of good public policy, but it suited the industrial relations club down to a T. At one stage the minister and ACTU secretary Sally McManus became official best friends — although that status didn’t last long.
Unsurprisingly, at the last minute the unions tried to cut a special deal with the Business Council of Australia (representing the largest companies) that would facilitate union-negotiated enterprise agreements at the expense of all other agreements. This was disgraceful behaviour on the part of the BCA and given that less than 10 per cent of private sector workers belong to unions, it was completely indefensible from a policy viewpoint. That the other employer groups strongly objected meant the proposal was dead on arrival.
Moving into this year, the government has weakly gone about promoting minor reforms that were set out in the omnibus bill to amend parts of the Fair Work Act. Some of the changes should have attracted support from all the relevant parties — employers, unions, Labor and the Greens. In particular, the new compliance provisions dealing with wage theft should have sailed through the parliament.
The proposal to increase the duration of greenfields agreements from a maximum of four years to eight years (a lower number could have been negotiated) had been supported by Labor when Bill Shorten was opposition leader. And here’s a curious aspect of developments this year. The proposed changes to the awards envisaged in the bill, particularly to the retail and hospitality awards, were similar to a deal negotiated between the ACTU and the Council of Small Business Organisations Australia.
Under this deal, employers would be able to offer part-time workers more hours at ordinary rates of pay, thereby offsetting the incentive to employ casual workers. (In many awards, permanent part-time workers must be paid overtime rates for any hours worked beyond agreed shifts.) This was the precise intention of the government’s amendments to the award provisions contained in the omnibus bill.
Even so, McManus had no problem describing the bill as “anti-worker” and “a recipe for keeping wages low and jobs insecure”. Her rallying cry was that “if this bill cannot be fixed, it needs to be dumped”. She then complained when most senators took her advice and voted against the whole bill, including the wage theft provisions. Evidently she thought the government should have excised the wage theft provisions for a separate vote.
The way to understand what happened last week is to appreciate that, these days, politics often trumps policy. Subject to intense hounding and threats from the unions, most of the crossbench senators simply caved.
To its credit, One Nation engaged in constructive dialogue, achieved some amendments to the casual provisions and voted with the government on the bill.
Notwithstanding his business background, senator Stirling Griff of Centre Alliance largely yielded to the pressures he came under — exerted also on his colleague in the House of Representatives, Rebekha Sharkie.
The only time Griff saw sense was his support for the casual provisions. Spooked by the predictions of mass failures of small businesses arising from claims for back pay by current and past regular casuals, he supported the bill’s definition of casual work, the disallowance of double dipping and the right for regular casuals to convert to permanent status.
Even so, Sharkie kept up her objections, pointing to her support for the absolutely shameful last-minute deal made between the ACTU and the COSBOA under the leadership of Peter Strong. Under this deal, regular casuals could continue to make claims for back pay. If there is ever a time when Strong should be considering his future, it is now. The other employer groups were quite rightly outraged.
So where does the government go from here? The first thing that needs to be acknowledged is that the unions are not its friends. Even though there were various aspects of the bill that the unions dearly wanted — stronger wage theft penalties, less onerous and speedier agreement certification, award simplification along the lines they have supported — they came away essentially empty-handed, with only the political prize of having seen most of the bill voted down.
If it’s anything like the futility of the Change the Rules campaign waged by the ACTU at the 2019 election, it will prove to be a Pyrrhic victory.
The government secured a real policy prize in legislating the changes to casual work. Very many small-business owners will be grateful. There is also the chance for a second bite at the cherry in the coming months, with the possibility that some parts of the bill could be reintroduced — say, the greenfields agreements in exchange for the wage theft provisions.
Under the circumstances, it could have been worse. And it does demonstrate to anyone taking any notice what a force for bad most of the Senate crossbenchers are and the complete lack of interest in policy reform on the part of Labor and the Greens.
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