WorkChoices - unfair and dangerous ...

For the shorter and plain english version, go to: http://www.livejournal.com/users/sodyinoz/837.html

I'm not going to lie to you. I'm left-wing so my view of WorkChoices is not favourable. But I have also worked in Industrial Relations for over 4 years and think I know what I'm talking about. If anything, it will give you a view of WorkChoices which will provide some balance to the millions of taxpayer dollars being thrown at it. This entry is in two parts:

1) What is wrong with it (apart from everything)
2) What can you do to protest the changes (before it's too late)

WHAT IS WRONG WITH IT ... well, let's look at the deceptions then look at the truth in a hopefully balanced way ....

Deception 1 - "Your existing conditions will stay the same"

Truth:

Like most of the advertising commentary, this advertising statement is very deceptive. Workchoices says that your existing conditions will stay the same. Yes, to a degree.

If you have not signed an Australian Workplace Agreement (AWA), then you are under an Award and/or an enterprise agreement. Your conditions will stay the same IF you stay in the job you are in.

However, Australians change their jobs on average three times in a lifetime. What happens if you change your job in the organisation you are in, or seek a job in another organisation?

If the changes go ahead, the following are likely scenarios ...

a) when you go for another role, you will be competing against prospective employees. What is currently a merit-based system (where you are chosen based on your abilities, skills and qualifications) will also become an auction on wages and conditions. A person may seek to be 'more flexible' with their conditions - choose to sign an AWA which removes them from the Award and enterprise agreement, cashing out annual leave, opting to work public holidays on single-time, etc - and given the job because their 'bid' suits the employer better. Or

b) an employer may offer you terms and conditions on a 'take it or leave it' basis - in other words, no choice - you take the AWA on the employer's terms or go on your merry way.

Remember this: under Workchoices, the current protection that an AWA must not disadvantage you in any way WILL BE REMOVED. That's right - AWAs must CURRENTLY equal the conditions of an Award or enterprise agreement. This WILL BE REMOVED - AWAs can be less than an Award.

Some people argue that if you're fully skilled and qualified for your work, you'll be fine to negotiate for yourself - but consider this:

1) What if the job you want is hotly contested - two equally skilled employees - you don't want to trade off conditions but the other will
2) What happens if there is a recession in your industry - more applicants than there are jobs - the laws of supply and demand tip in the favour of the employer (think long term)


Deception 2 - "You cannot be unfairly dismissed"

This is a biggy. To understand unfair dismissal, you have to understand a little about the law. Read on - be patient.

Dismissal can be unlawful for various reasons, and this is all covered by various legislation:

a) Discrimination on Age, Disability, Nationality, Homosexuality, Carers Responsibilities, Pregnancy etc (state and federal legislation)
b) Freedom of Association - membership or non-membership of a trade union (Workplace Relations Act)
c) Refusing to sign, vary, terminate an Australian Workplace Agreement (Workplace Relations Act)
d) Harsh, Unjust and Unreasonable acts by the employer (Workplace Relations Act) - this protection is to be removed under WorkChoices for over 3 million employees


Under WorkChoices, if you work for an employer with less than 100 employees* now or in the future, current protections under d) will be removed. To understand this, let's contrast the current system with the proposed system.

The current system allows you to appeal to the Australian Industrial Relations Commission (AIRC) if you feel you have been dismissed on 'harsh, unjust and unreasonable' grounds. What is harsh? What is unjust? What is unreasonable? Well, think about anything that isn't covered by a) b) and c), and you've got it. Now, under the current system you can appeal to the AIRC on harsh, unjust and unreasonable grounds for a nominal fee of about $50. A union can represent you. It is cheap, quick and effective. It is what lawyers call 'alternative dispute resolution'.

Under WorkChoices, this protection that the AIRC provides will be removed. If you feel you have been dismissed on 'harsh, unjust and unreasonable' grounds, you will have to go to court. It will cost you in terms of lawyer fees, it is longwinded and subject to legal appeals, and has risks such as liability for court costs. Unions will not be able to support you - it is the domain of lawyers. So, when you next hear the WorkChoices ad that says 'the government MAY subsidise your appeal for unfair dismissal', remember these things:

1) the current system costs you practically nothing, and is quick and efficient
2) WorkChoices replaces that system with a $3000 or $4000 subsidy toward court costs, which independant media estimates will be $30 000

In other words, the current system provides a disincentive for employers to unfairly dismiss you because you have better access to appeals. WorkChoices places the disincentive on you to pursue unfair dismissal claims - it will be too costly, time consuming and risky. By default, it balances the risk in favour of the employer.

WorkChoices makes it easier for small employers to sack and dispose of people with less recourse on legal and cost grounds.

* Note: Industrial Relations experts believe that larger companies will re-arrange their businesses under the law so that a business with 500 employees will become 6 businesses with less than 100 employees under the law.


Deception 3 - You can't be terminated for refusing to sign an AWA (Australian Workplace Agreement)

This opens a can of worms and needs some explanation:

WorkChoices is simply a system which seeks to replace collective bargaining with individual bargaining. Collective bargaining means a union or a group of employees negotiate an enterprise agreement to get higher wage outcomes. Or individual bargaining means you sign an AWA as an individual by negotiating your own contract. Which is good, which is bad? Nothing is ever black and white. But let's examine the changes under WorkChoices and you'll see that these SPECIFIC changes aren't necessarily good.

OK. If you have not signed an AWA or individual contract, you are currently under an Award and/or enterprise agreement. The law currently protects you if you refuse to agree to an AWA. "I'm safe", you think.

But that is only if you are OFFERED an AWA. What if Deception 2 happens - you either work or will work for an organisation with less than 100 employees. An unemployed person or other job seeker seeks your job - he/she is offered an AWA which replaces everything in Awards and enterprise agreements. They accept it (and remember that an unemployed person MUST legally accept). You are dismissed. You have effectively no legal recourse. You weren't OFFERED the AWA, so you can't legally take the employer to court because TECHNICALLY, you didn't say no to an AWA. You can't afford to go through the courts, because the AIRC protection for harsh, unjust and unreasonable dismissals has been removed. See the hidden dangers of WorkChoices???


Deception 4 - "We need Workchoices for higher wages"

So deceptive, for two good reasons:

A) FAIR PAY COMMISSION to replace the existing Australian Industrial Relations Commission

To truly understand the ramifications of this change, you have to understand how the current system works.

The Australian Industrial Relations Commission - which is in our constitution and has existed for over 100 years - is made up of a judiciary who are specialists in employment law and industry. They have tenure and cannot be sacked or pressured by government. Currently, they listen to submissions by unions, government and business when setting the minimum wage every year. They base their decision on arguments, statistical analysis and fair legal judgement.

Under WorkChoices, the government will remove this impartial judicial review power of the Australian Industrial Relations Commission. It will be replaced by a new Fair Pay Commission made up of government appointees. They can be removed from office. It doesn't matter which side of politics you are on, but do you really want that? It means you get the Commission stacked with big business appointees under Coalition governments (translate that as poor wage outcomes) or union appointees under Labor governments.

Effectively, the Coalition government wants to remove the impartiality of the AIRC; sideline unions from influencing minimum wage outcomes (ie. reduce the 'real' minimum wage) and will effectively leave the new Commission open to accusations of cronyism.

B) Higher wages for some, lower wage outcomes for most ...

It is true that WorkChoices will deliver higher wages - for some <- heavy emphasis here.

When you change jobs in the future (remember deception 1), or work for an organisation with under less than 100 employees (remember deception 2), you may find you have compromised on your CONDITIONS. Less annual leave because it's cashed out. No penalty rates for public holidays because it's cashed out. Yes, technically, your wages are higher, but your conditions are most definitely lower. Remember, you may not have a choice in this.

Those who are extremely well skilled in a very tight labour market (ie. they don't have many competing job applicants) may do well. But consider the reality:

1) The cost of upskilling - going to uni isn't cheap, the cost of journals isn't cheap - you have to weigh the costs of remaining more job-competitive against the level of income you expect
2) Recessions happen - in an industry or across the whole economy - increased competition is an inevitable reality


Deception 5 - "Everything is protected"

Awards currently have 26 minimum conditions. Under the current system, they cannot be touched. It also means that if you have a dispute about any of those 26 conditions with your employer, you could take them to the Australian Industrial Relations Commission.

Under WorkChoices, these conditions will be stripped down to 5. Yes, 26 down to 5 legal protections. That means 21 conditions will no longer be protected. And, as we saw above, even the remaining 5 can be 'negotiated' away if an employer insists on AWA under WorkChoices.

So, your right to 4 weeks annual leave, 2 weeks paid sick leave under an Award/enterprise agreement may remain there for your existing position, but not much else. AND, even they can be cashed out in an AWA. Remember, AWAs replace everything in Awards/enterprise Agreements. There will be NO protection under Workchoices to ensure you are not disadvantaged. ie. the 'No Disadvantage Test' will be gone.

If you want to know which Award / enterprise agreement you are under to see what you stand to lose, go to www.wagenet.gov.au or email me - I'll give you the url - just provide the name of your organisation, the state you live in and your jobtitle - I will respect confidentiality if you're genuinely interested - abuse will have to be reported, of course.


Deception 6 - "Workchoices will deliver a stronger economy, more jobs and higher wages"

We have seen the farce behind 'higher wages' - in many cases it will mean lower conditions for higher wages. With the removal of the 'no disadvantage test' (the test that currently ensures an AWA can be no worse than an Award), it may even mean lower wages - there will be no safety net apart from 5 Award conditions IF you stay on an Award in your EXISTING position.

More jobs? Maybe a loss of jobs unfairly for many, and jobs to the lowest bidder.

A stronger economy? Maybe a "more competitive economy" when it comes to wages and conditions - that's the only way to compete against China, right?

Don't be fooled by WorkChoices. There is more I could tell you ... but let's leave it at that for the moment. Suffice to say that WorkChoices represents:

a) downward pressure on terms and conditions of employment
b) less real protection against unfair dismissal
c) a dog-eat-dog employment market

The Government can't immediately change market conditions because they know governments have lost power for such actions. WorkChoices is a deceptive way of putting the machinery in place for such changes to happen gradually - as new job seekers enter the market, as current employees seek new jobs, etc etc


WHAT CAN I DO TO PROTEST ...

You should do some, if not all of the following:

1) Ring the WorkChoices hotline - see if they can argue against this or register your disapproval - 1800 025 239
2) Visit the WorkChoices website - send them an email - www.workchoices.gov.au
3) Contact a Coalition Senator for your state - http://www.aph.gov.au/Senate/senators/index.htm
4) Volunteer to fight the changes - http://council.labor.net.au/can/
5) Attend the ACTU rally in your town on November 15th ... http://www.actu.asn.au

Cheers - I won't be so political in my next entry lol

SodyInOz