The Morrison government could push ahead with industrial relations changes even if the unions and employers are unable to bridge the sharp differences in their priorities to reach a consensus on reform, the attorney general has said.
On Wednesday Christian Porter told ABC’s 7.30 the government wants “as much agreement as possible” from five industrial relations consultation groups but the prime minister had asked him to develop a product … out of every working group”, which may involve legislation.
Scott Morrison has extended an olive branch by ditching union-busting legislation, but already there is a vast gap between union calls for less casual employment and business groups calling to remove conditions from awards and workplace pay deals as key priorities.
On the five key reform areas nominated by the government, the Australian Industry Group has called for:
Simplifying awards by removing conditions dealt with in legislation such as annual leave, personal/carer’s leave, redundancy pay, notice of termination, consultation, dispute resolution, flexibility agreements and requests for flexible work arrangements.
Replacing the Better Off Overall Test for approving enterprise agreements – which employers argue now sees deals blocked if any worker is worse off.
Clarifying that a casual employee is an employee “engaged and paid as such”, to prevent workers receiving the casual loading and also claiming the entitlements of permanent work such as annual leave and sick leave.
Retaining the current civil penalties for underpayment, rather than creating a criminal offence for serious underpayments.
Project life pay deals for new projects, which would prevent unions taking protected industrial action to raise pay mid-project.
The Australian Council of Trade Unions has so far suggested:
Improvements to the bargaining process, including fewer hurdles to register a new pay deal and possibly lowering the evidentiary burden of establishing that all workers are better off, provided union and employer agree on the deal.
Industry level or multi-enterprise bargaining to encourage small workplaces to sign onto the same pay deal rather than remain on award conditions.
Less casual work by improving workers’ right to convert to permanent part-time work.
Fair Work Commission jurisdiction to deal with underpayment; and criminal penalties for “wage theft” court cases.
Porter said the five reform areas deal with “specific known problems in the system which all parties agree inhibit job growth or job creation, or are causing issues in the system that prevent jobs being saved”.
He said these “known problems” include “the enterprise agreement system being slow and cumbersome”; “new major investment projects not being able to have an enterprise agreement for the life of the project”; and “awards being incredibly complicated with multiple pay points”.
“So of course people will be frustrated if the level of agreement is not high.”
Andrew Stewart, a University of Adelaide law professor, said that “even if we accept there is something genuine here, as I’m inclined to, the prospects of meaningful cooperation emerging are not great”.
Business and union leaders will “quickly find they’re swimming against a massive tide of adversarialism”, he predicted, citing the fact they have “fundamentally opposed viewpoints” on key issues.
“The union view is there are massive problems with wage stagnation, lack of government investment in public services, which in turn holds down wages for large parts of the labour market … and the massive problem with insecure work.
“And then you throw that up against a business agenda which sees the problem as lack of flexibility for businesses to lower their labour costs, and have greater managerial prerogative over hiring and firing.”
Stewart said there was “a limited amount of agreement about things that could be fixed up” in the bargaining process but there was “no way” unions would trade the Better Off Overall Test for the weaker No Disadvantage test advocated by employers.
Anthony Forsyth, a professor at RMIT’s graduate school of business and law, told Guardian Australia the government’s five priorities are “pretty much a pro-business reform wish-list”.
He said compliance and enforcement was one of the few reform areas “better from a union or worker perspective”, but largely picks up on work already conducted by the attorney general, Christian Porter, to criminalise serious and systemic underpayment.
“The arguments about reducing the complexity of awards … I don’t think they’ll get far with unions on that, it inevitably means reducing protections for people,” he said.
Forsyth said the Better Off Overall Test could be reformed because it “prevents approval even if only a small number of workers are adversely affected” but unions “won’t want too much of a weakening”.
Forsyth said there was “not a lot in” complaints about the difficulty of approving workplace pay deals. He cited the fact the Fair Work Commission has powers to overlook minor technical defects with applications and employers had “used loopholes” such as having agreements voted up by small cohorts of workers to fast-track deals.
Forsyth said there was “significant pressure from the business lobby” to address the federal court’s Rossato decision that found casuals could be owed further entitlements if they performed regular, permanent work.
Scott Morrison has suggested casual conversion is one of the “key issues” that will be discussed.
On Wednesday Morrison told ABC’s AM that a number of awards already allow casual employees “where they’re effectively operating as full time … [to] have the opportunity to convert to full-time work”.
“Now, that’s a reasonable position. That’s something that’s already commenced happening and it’s something that needs to be done in a fair and a reasonable way.”
But Forsyth said awards grant “a right to a discussion about whether to convert”. He called on the government to create a right to casual conversion and address the “abuse of rolling fixed-term contracts” as means to improve secure jobs.
