April 2008

WorkChoices Life Won't Change Much

At the risk of spoiling the party, let's have a look at what the Workplace Relations Bill which had to be urgently passed by Easter actually does, to change anything.

Then, we may ask what the rest of the "stringent measures" will do, when they come in.

This month, legislation passed the national parliament to prohibit new AWAs, while leaving in place the old ones. That's the change. There can't be any change of substance, because of what John Howard did, but couldn't admit too loudly, and Labor couldn't mention at all because they had a campaign to run.

"What John did" was introduce the 'fairness test', in May 2007. That meant that every AWA and Collective Agreement had to be tested against an award, to ensure the award could not be undercut. No flexibility at all, in effect. Awards became sacrosanct. That made AWAs and Collective Agreements much more restrictive and much less likely to undercut awards than was possible under any of the previous incarnations of this type of legislation - either the Keating Government's or the first Howard effort in 1996.

The ALP could hardly have been expected to admit this though, could they? It would have cut the election campaign in half. Howard, for his part, could not have spent too much time pointing it out, because that would have been a huge admission of the error he was correcting. We have already heard from his minister, Joe Hockey, that he and most of the Cabinet "did not realize"(!) that WorkChoices would permit AWAs and Collective agreements to reduce the income of workers, so he presumably didn't see the significance, and that's why he never said anything about it.

The "no-disadvantage test" we are getting this week is different to Howard's "fairness test" only in the name. No real change. Since that is unarguable, we have to wonder why none of our representatives make note of this. It would be worrying indeed if they didn't realise it. One thinks that there is a need on both sides to be seen to be doing something, and a simultaneous assumption that most people believe what they are told.

Later - but soon, we are promised - we will have ten minimum standards. The new set "adds" to the Howard version of minimum standards by requiring that an employer provide an information statement. This is apparently different to the 'statement' Howard rushed in last year, but no one says how it is different. The new "standards" also permit people to "request" flexible working arrangements. We did not know requesting things was previously prohibited - although now the employer, if they say "No", has to cite "reasonable business grounds".

Then, of more potential worry for the Government's supporters, we have minimum redundancy standards that will undercut the provisions of most NSW awards (hopefully that standard will not be chopped down - but you'd better check).

Most worrying for all employees in NSW is the "minimum standard" for Long Service Leave. Workers in this State do far better than most jurisdictions, in long service leave. One hopes the "national standard" will not cut local conditions. It is all "urgent" though, so NSW constituents had better start lobbying Labor MPs now, to prevent them voting up a reduction of entitlements for their constituents due to sheer ignorance.

Then we will have the new wrongful dismissal jurisdiction. Last year's Ministers, like Tony Abbott, used to go about portraying the right to dispute unfair dismissal as the greatest burden on small business. We might think that interest rates, the GST, and government red tape might have been greater burdens on small business.

At its height, before WorkChoices, there were 10,000 of these cases a year in all the state and federal jurisdictions combined, out of a workforce of 10 million - or zero point one percent of employees per year. WorkChoices cut that to 5000 a year.

There won't be much change when WorkChoices gets undone by the new Government, and the "New" wrongful dismissal rules arrive. Employers with fewer than 100 employees will be brought back in, but only for employees who have been employed for six months or more - that's the general restriction at the moment. Those with fewer than 15 employees (that is, most employers) will not have to worry about it at all for employees with less than 12 months service, and then will get an "exemption" if they go through a correct "procedure" on termination. We could estimate that the number of cases will go up by one or two thousand a year. That means there will be a zero point zero two percent increase in the proportion of the workforce included each year.

Those are the facts. They will surprise most people, because of the sort of "virtual world" lived in by politicians and the journalists who follow them around. We have to wonder why there is such a compact of silence about this profound absence of difference, and why that silence is so carefully observed by both parties. Perhaps they don't want us to know how little difference there is between them.

This article is intended to be general information only. It is not presented as legal advice. Since each legal circumstance is different, no action should be taken unless specific prior advice is sought on that action.

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