WorkChoices will result in winners and losers

I represent the Human Rights and Equal Opportunity Commission (HREOC). It is our duty, in a sense, to present the worst-case scenario.

HREOC does not wish to disagree with the factual outcomes regarding existing Australian Workplace Agreements (AWAs) released by the government, although there may be reasons to believe that were AWAs extended to all the workplace these outcomes might change. It is also true that, if the last ten years of industrial deregulation are any guide, these reforms may lead to further job creation, and we would all welcome that. However, in the sense that all regulatory change involves winners and losers, the WorkChoices bill is no different. Inevitably there will be winners and losers, depending, among other things, on the strength of the Australian economy.

Workplace relations reforms introduced since the mid-1980s, particularly those of 1993 and 1996, have created significant flexibility for employers, while at the same time increasing Australia’s productivity. Since 1993, Australia’s labour market has delivered strong jobs growth, falling unemployment and underemployment, rising productivity and real wages, low levels of industrial disputation in the Australian context and falling real unit labour costs.

However, HREOC does have grave concerns about the implications of dismantling or removing any significant planks of a social, legal and economic contract in Australia which has evolved over 100 years and around which a variety of institutions, policies, cultures and government programs have grown up. Unless careful adjustments are made to surrounding institutions, laws and policies, inevitably that whole contract is challenged. The WorkChoices bill, particularly in conjunction with the Welfare to Work changes, represents a wholesale change to the way Australian workplaces operate and, as a consequence, will have major implications for the Australian community more broadly.

HREOC strongly urges the government to take extreme care in implementing these changes to prevent unforeseen consequences which mean that Australian employees and their families might suffer and require changes to other institutions.

For example, the spread of AWAs will inevitably mean that the present system of employer funded paid maternity leave will disappear. This is because employer provided paid maternity leave, in the absence of a national government funded scheme, has been provided by Australian employers as part of negotiated enterprise agreements or, less often, as part of awards. As the Australian Catholic University paid maternity leave case demonstrates, this is possible in a collective bargaining arrangement because workers agree to trade off part of a pay rise against that 12 months paid leave.

Other employers have done likewise. This will not be possible where there are not collective agreements, which explains why so few AWAs have paid maternity leave. Either the government will need to replace employer funded paid leave with a national government funded scheme or we will be back in the nightmare of low fertility and or of women dropping out of the work force at a time when the country needs them most.

HREOC’s chief concerns about the bill relate to its impact on the protection of workers with family responsibilities, on pay equity between men and women and on the protection of employees in vulnerable and lower skilled positions in the Australian labour market.

I have spoken to many hundreds of people around Australia over the course of the last six months as part of the consultations for my discussion paper Striking the balance: women, men, work and family. Despite the assurances of the government in relation to the WorkChoices bill, there is already significant concern in the community about the impact of increasing casualisation of the work force and long, irregular and extended working hours on family life under our existing system.

HREOC would like to have seen the WorkChoices bill deliver improved minimum standards to help employees balance their paid work and family responsibilities. Such minimums could include legislated paid maternity leave and a right for employees to request a variation to their working arrangements for family care responsibilities. These standards are currently lacking from many of our industrial arrangements.

Finally, HREOC is concerned that the bill fails to adequately protect vulnerable employees and job seekers, particularly workers with disabilities, Indigenous people, people moving between welfare dependency and paid work, and those in low-paid wage jobs, for which there are many competitors and who consequently have little individual bargaining power. The capacity for more vulnerable employees to bargain effectively and to choose their employment arrangements is impinged upon by the existence of so-called “take it or leave it” individual bargaining arrangements. Allowing employers to make employment conditional on an employee taking up an AWA, for example, means that the choice of employment arrangements, especially for those on minimum wages, is extremely limited. The consequences are felt not only by workers but by their children and families.

HREOC has serious concerns that, once an agreement is terminated, neither that agreement nor an award is in operation, with employees presumably to be covered only by the standard. This means that an employer can terminate an agreement unilaterally after the nominal expiry date of the agreement and that all employees covered by the agreement revert to the standard. This provides employers with a great deal of leverage over the terms and conditions of any new agreement.