Page 3096 - Week 10 - Wednesday, 24 September 2014
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The federal government’s rationale is that there is a huge cohort of people who “choose” to work unsocial hours and that the intangible value attached to the working hours by the employee would offset the reduction in take-home pay. However, the bill fails to take into account the unequal bargaining relationship between employers and workers. It is conceivable that vulnerable workers, including those seeking flexible working arrangements, young and unskilled workers and workers in areas of high unemployment, could be pressured into accepting agreements that leave them significantly worse off in monetary terms than they would be with their entitlements under an award or an enterprise agreement. As was recently recorded in the Canberra Times, these changes will essentially make it possible for employers to offer “pizza for pay”. As was rightly pointed out, pizza will not pay the rent, it will not pay the bills and it will not feed the kids.
Let me go to paid parental leave, part of the changes that the government most wants to talk about. Under the current Fair Work Act, an employee taking unpaid parental leave may request their employer to extend the leave for a further period of up to 12 months. The employer can only refuse the request on reasonable business grounds.
The amendment bill would require the employer, before refusing a request, to give the employee a reasonable opportunity to discuss the request. It places no onus on the employer to actually consider the request, because there is no oversight offered and no option for review. The sweetener that the federal government is trying to sell this raft of changes with is the veneer of consideration by your employer. It does not extend your rights. It does not even offer the guarantee of full consideration or review. It is a provision that will only ever benefit the skilled worker in an industry with a skills shortage—nothing more or less than a veneer of a right for the majority of Australians.
It is, however, better than the changes to transfer of business arrangements. Under the Fair Work Act, the current one, when there is a transfer of business, the old employer’s enterprise agreement continues to cover the employee and the new employer. This protects an employee who is redeployed in the course of a corporate restructure or outsourcing.
Under the proposed amendments, transfer of business provisions will not apply to the transfer of an employee between associated businesses where the employee “sought” to become employed by the new employer “at the employee’s initiative”.
The breadth of this exclusion is concerning, and it is open to exploitation. Recalcitrant employers could restructure their operations, offer employees the option of no job or a new job in a different corporate entity, and use that transfer to reduce the employee’s wages and conditions. Under the proposal, these employees will no longer be protected by the Fair Work Act’s transfer of business rules, and their conditions of employment will not be presumed to be subject to review by Fair Work. It is exactly what it sounds like—a giant, deliberately drafted loophole that will push down the wages and conditions of vulnerable workers. I just cannot understand how it can be seen as anything but that.
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