A brief look at The Coalition's Policy to Improve the Fair Work Laws

 

Australian Opposition Leader Tony Abbott on introducing the Coalition’s new industrial relations policy talked of no worker being worse off and the proposed legislation needing to pass the pub test.

 

As both these phrases were rather notorious on the NSW North Coast during the Howard Government era, I decided to take a look at this policy document which sets out (among other things) an intention to further limited a union’s right of entry into a workplace, reinstate the Australian Building and Construction Commission and alter the Better Off Overall Test.

 

This is what I found on a first reading of The Coalition's Policy to Improve the Fair Work Laws:

 

On Page 5 there is a justification to change right of entry for union representatives:

According to the footnotes this workplace receiving up to 200 visits is the Foster Wheeler Worley Parsons (Pluto) Joint Venture located 190km north-west of Karratha in Western Australia, where the occupying employer of record Woodside Burrup Pty Ltd (WBPL) would only allow one signed in and staff  accompanied CFMEU representative to see one individual contractor’s employees per visit.

Which means that he was required to make multiple visits due to the scale of this mining venture, where the onshore plant and associated infrastructure alone cover about 80ha and the combined construction and operation workforce was estimated to be between 4,000-6,000 workers over the life of the project up to that point in time.

 

Page 6 contains a justification for reforming the Australian Building and Construction Commission:

Again the footnotes do not fully support these assertions, as productivity was above predicted levels before the Australian Building and Construction Commission (ABCC) was formed and it is noted that the alleged over $6 billion per year is arrived at in part by KPMG Econtech assigning a monetary value to personal leisure time when not at work.

 

By Page 13 of the document the Coalition is stating that between 2014 and 2016 it will review the Fair Australia laws:

Of course there was a prior post-implementation review of these laws between 2011-2012 and the Coalition obviously finds no fault with that particular review as it allegedly intends to rely on some of that its recommendations. Which begs the question as to why there is need for another review if Abbott wins government.

Then on Page 36 the Coalition is supporting a new proposition regarding workplace laws allegedly drawn from that same post-implementation review:

The Fair Work Australia Better Off Overall Test apparently specifies that the employee must actually be “better off overall”. That wages and conditions being offered by the employer in any new individual flexibility arrangement or enterprise agreement are not merely equivalent with the relevant modern award.

 

In Australia, non-monetary benefits broadly cover conditions of work such as guaranteed minimum hours, reasonable working hours, location of employment, flexible working arrangements etc.  

 

During the period Work Choices legislation was in effect, the Fairness Test only partially protected and/or compensated for the loss of such benefits and that under Work Choices there was the removal of any requirement to offset employee losses with benefits. It also meant that being provided with such things as access to a works car park could be assigned a nominal monetary value and used as compensation for loss of award condition/s and overtime worked would not always result in an increase in wage received but could be a payment-in-kind such as leftover food.

 

There is no mention in the fact that the 2011-12 review of work place laws, on which the Coalition policy document relies, clearly indicated that any arrangement to confer a non-monetary benefit on an employee in exchange for a monetary benefit was conditional on the value of the monetary benefit foregone is specified in writing and is relatively insignificant, and the value of the non-monetary benefit is proportionate.

 

However, what is clear is that under proposed changes to Labor's system of individual flexibility arrangements, workers would have a greater ability to trade off entitlements, including penalty rates and leave which was a key characteristic of Work Choices eagerly abused by employers.