Originally published in The Conversation on December 9, 2020

Industrial Relations Minister Christian Porter tabled an omnibus bill on 9 December containing multiple amendments to Australia’s labour laws, including the Fair Work Act. In theory, the bill is the outcome of a series of IR reform discussions the government launched during the early months of the COVID-19 pandemic. At the time it heralded a new spirt of cooperation between business, unions, and the government — but that spirit didn’t last long. The bill accepts numerous business demands that will further liberalise casual work, undermine genuine collective bargaining, and generally suppress wages even more than they already are.

This commentary is a longer version of an assessment of the new legislation prepared by Jim Stanford (originally published in The Conversation).

We Were In This Together… For a Very Short Time

By Jim Stanford

“We are all in this together,” Prime Minister Morrison solemnly intoned to Parliament in April. And during those first frightening weeks of the pandemic, there was a brief moment when it seemed like Australia’s industrial relations protagonists actually believed it. For a short time, businesses, unions, and government put aside their usual differences and worked together to get through this existential threat. For example, they negotiated quick agreements to alter dozens of Modern Awards and enterprise agreements, adjusting rules and rosters to help keep Australians on the job.

Then, building on that spirit of cooperation, the government kicked off a new process to seek consensus around further improvements to workplace laws. The government abandoned its pre-COVID effort to impose harsh new restrictions on unions. Instead, five tables were established with business, union, and government leaders, debating reforms to improve the fairness and efficiency of the IR system. Some observes even smelled a new era of Accord-making in the wind.

Well, the Kumbaya moment didn’t last long. Within weeks the parties retreated to their corners and their standard speaking points. No meaningful consensus emerged on any issue from any table. Even tentative proposals – like an idea, supported by unions and the Business Council, to combine fast-track approval of union-negotiated enterprise agreements with greater flexibility in determining their suitability – were shot down in partisan gunfire by the more strident business lobbyists.

Now, in the absence of consensus, the government has picked up its traditional hymn book and is once again singing the praises of ‘flexibility’ and deunionisation. IR Minister Christian Porter tabled a series of changes in Parliament Wednesday that will further skew the already lopsided balance of power between employers and workers.

The government didn’t just take business’s side in the debates at those 5 discussion tables: it went even further. One of the biggest changes in the new legislation (suspending rules that prevent enterprise agreements from undercutting the minimum standards of Modern Awards) wasn’t even discussed at the IR tables. This confirms that the IR gloves are off once again.

If passed in the Senate, Porter’s omnibus bill will reset several aspects of current labour relations:

Suspending the BOOT: At present, the Fair Work Commission (FWC) must ensure enterprise agreements (EAs) do not undercut minimum standards guaranteed in the Modern Awards. The new legislation instructs the FWC to approve EAs even if they fail this ‘Better Off Overall Test’ (BOOT), so long as the deal is nominally supported by affected workers (more on this below) and deemed to be in the ‘public interest.’ It is important to remember that Australia (unique among industrial countries) allows employers to implement EAs unilaterally, without any involvement by a union. The BOOT is thus necessary to prevent EAs (especially non-union EAs) from undermining workers’ minimum rights. Porter’s suspension of the BOOT is planned for two years. But even if it is restored after that (which is uncertain), EAs negotiated during that window will remain in effect for years afterward. Even after they expire, under Australian law they remain in effect until replaced with new EAs, or terminated by the FWC – neither of which is likely in non-union settings.

EA Approval Process: Anticipating that non-BOOT-compliant EAs will be actively opposed by unions, Porter’s legislation includes complementary measures aimed at speeding those deals through the FWC. Unions will be restricted from intervening around EAs they were not involved in negotiating – even non-union EAs where no union was involved. And the process must normally be completed within 21 days, thus limiting opportunities for affected workers to learn about and resist sub-Award provisions.

Defining Casual Work: The growing use of casual labour was a hot topic at the IR reform tables. Porter’s legislation clarifies the definition of casual work in the most expansive way possible: a casual job is any position deemed casual by the employer, and accepted by the worker, for which there is no promise of regular continuing employment. In other words, any job can be casual, so long as workers are desperate enough to accept it. This will foster the further spread of casual labour. Most important, it removes a big potential liability faced by employers as a result of recent court decisions, under which they might have owed back-pay for holidays and sick leave to casual staff who worked regular shifts.

Casualising Part-Timers: Further casualisation will be attained through new rules regarding rosters and hours for permanent part-time workers. Porter’s bill would extend flexibility provisions originally implemented earlier this year – during that brief moment of pandemic-induced cooperation. The rules allow employers to alter hours for regular part-timers without incurring overtime penalties or other costs (currently required under some Modern Awards). This will allow employers to effectively use part-time workers as yet another form of casual, just-in-time labour.

Long-Term Project Agreements: Finally, Porter has granted one more big wish from the business list: allowing super-long enterprise agreements at major new projects. Agreements would last for up to eight years, and can be signed, sealed and delivered before any workers start on the job (thus denying them any input into the process). Under the revised BOOT provisions, they could also undercut the minimum standards of the Awards.

These changes are being advertised as a boost for post-pandemic job-creation, but this claim is hollow. In fact, the changes in part-time and casual rules will actually discourage new hiring: since existing workers can be costlessly flexed in line with employer needs, there is no need to hire anyone else. Weaker BOOT protections will spur a wave of new EAs: most union-free, and aimed at reducing (not raising) compensation and standards. This makes a mockery of the goals of collective bargaining, and grants Australian employers further opportunity to suppress labour costs (already tracking at their slowest pace in postwar history).

So what do we make of that short-lived spirit of togetherness which purportedly sparked this whole process? In retrospect, it seems to have been just an opportunity for Coalition leaders to pose as visionary statesmen during a time of crisis. Now, mere months later, the government is back to its old script – and the pandemic is just another excuse to scapegoat unions, drive down wages, and fatten business profits.

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