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Fair Work Act Review

Submission of Unions NSW

Submission by: Unions NSW

Trades Hall Building

Level 3, 4 Goulburn Street

Sydney NSW 2000

T: 02 9881 5999

F: 02 9261 3505

E: [email protected]

Unions NSW Submission to the Fair Work Act Review

ContentsRecommendations.. .. .. .. .. .. .. .. ..

Introduction .. .. .. .. .. .. .. .. .. Page 4

Unions NSW .. .. .. .. .. .. .. .. .. Page 4

Key Areas of Concern .. .. .. .. .. .. .. .. Page 5

S.492 Conduct Of Interviews In Particular Room Etc. .. .. .. .. Page 5

Operation Of Surveillance Equipment In Meal Rooms .. .. .. .. Page 6

Security Access And Passes .. .. .. .. .. .. Page 6

S.467 Information About Employees On Roll Of Voters Not To Be Disclosed .. Page 7

Arbitration .. .. .. .. .. .. .. .. .. .. Page 9

Ensuring workers have access to arbitration of workplace disputes .. .. Page 9

Arbitration is needed for the NES, Modern Awards and Enterprise Agreements .. Page 9

s.172 Making an Enterprise Agreement .. .. .. .. .. .. Page 11

Case Studies .. .. .. .. .. .. .. .. .. Page 13

Case Study 1: s.176 Bargaining Representatives For Proposed Enterprise Agreements That Are Not Greenfields Agreements .. .. .. Page 13

Case Study 2: Project Agreements .. .. .. .. .. .. Page 16

Previous Industrial Arrangements Under NSW State Industrial Law .. .. Page 16

Impact of Fair Work Act 2009 and the Building and Construction Industry Improvement Act 2005 .. .. .. .. .. .. .. Page 17

Objectives of the Act .. .. .. .. .. .. .. .. Page 19

17 February 2012 1


RecommendationsRecommendation 1: Unions NSW urges the Government to amend the Act to ensure a

meal room is considered to be a reasonable area fit for the purpose

of conducting the interviews or holding the discussions and for

employee representatives to be able to freely access the meal

room.

Recommendation 2: Unions NSW urges the Government to amend the Act to ensure the

general protections powers of the Act provide specific protections

for employees undertaking or participating in union activities.

Recommendation 3: Unions NSW urges the Government to provide a legislative process

which enables unions to have disputed employee lists provided to

the AEC for review to ensure employees who are financial

members of the requisite union are not excluded from workplace

ballot processes.

Recommendation 4: Unions NSW urges the Government to provide the AEC with the

necessary legislative power to enable it to check the eligibility of

employees to vote in ballots where the employer’s list has been

legitimately challenged.

Recommendation 5: Unions NSW urges the Government to amend the Fair Work Act to

provide that workers have the right to be able to access arbitration

where they have a dispute with their employer about a matter

concerning the operation of the NES, a Modern Award or an

Enterprise Agreement.

17 February 2012 2


Recommendation 6: Unions NSW suggests there is no reason to maintain the matters

pertaining formulation and urges the Government to review s.172 of

the Act given clauses, such as those in Kagan, are aimed at

creating a reasonable level of job security for permanent and

casual employees.

Recommendation 7: Unions NSW urges the Government to amend the Act to enable

employees to appoint organisations constituted as recognised State

Peak bodies to be their bargaining representatives.

Recommendation 8: Unions NSW urges the Government to amend the Act to enable

project agreements to be approved for major construction projects.

Recommendation 9: Unions NSW urges the Government to amend the Act to give

primacy to the needs of workers in relation to certain minimum

standards and to extend the reach of those minimum standards to

be extended to all “workers”.

17 February 2012 3


Introduction1. On the, 18 January 2012, the Fair Work Act Review Panel released a background paper

(“the Paper”) and announced the timing for the review’s submission process.

2. Unions NSW welcomes the Review and the opportunity to comment and makes the

following submissions in relation to the Fair Work Act 2009.

3. In its submission Unions NSW has sought to focus on key areas of concern identified by

our state based affiliates. Further, the submission provides two case studies on

problems which have directly affected Unions NSW as a state peak body.

Unions NSW

4. Unions NSW is a State Peak Body as defined by section 215 of the Industrial Relations

Act 1996 (NSW). Unions NSW has over 60 affiliated unions representing members

employed across a wide range of public and private sector industries including teaching,

local government, retail, distribution, childcare, manufacturing, electrical, health,

emergency services, agriculture, engineering, construction, administrative, the public

sector and transport. Collectively Unions NSW and its affiliates represent over 600,000

workers employed across NSW.

17 February 2012 4


Key Areas of Concern

S.492 Conduct Of Interviews In Particular Room Etc.

5. Unions NSW affiliates have consistently identified the need for an expansion of what

constitutes a reasonable area in which to conduct meetings and to hold interviews with

union members.

6. The definition of what constitutes a reasonable area needs to be revised to address the

issue of employers now being able to use the excuse of non-members using the meal

room as a reason to move union meetings from the most accessible areas workplaces.

7. In many workplaces, if the meal room is not available there are no other appropriate

areas within the enterprise to hold meetings. For example, in the case of hotels there is

no other appropriate location within the enterprise in which to hold a meeting at no cost

to the members other than the meal room.

8. Unions NSW believes the meal room is most often the most appropriate and accessible

venue within a workplace to hold meetings as it is accessible and suitable venue for

employees to meet with their representatives.

Recommendation 1.

Unions NSW urges the Government to amend the Act to ensure a meal room is

considered to be a reasonable area fit for the purpose of conducting the interviews

or holding the discussions and for employee representatives to be able to freely

access the meal room.

17 February 2012 5


Operation Of Surveillance Equipment In Meal Rooms

9. A number of affiliates highlighted the issue of the ongoing operation of surveillance

equipment in meal rooms whilst union meetings are in progress. Affiliates have

identified concerns that surveillance equipment can be used for a purpose other than

security to monitor, identify and record employees who are union members.

10.Unions NSW believes overt and covert surveillance is often used by employers to

inappropriately monitor employees and union activists which impacts on their right to

freely associate as a union member without having to inform their employer of their

choice.

Recommendation 2.

Unions NSW urges the Government to amend the Act to ensure the general

protections powers of the Act provide specific protections for employees

undertaking or participating in union activities.

Security Access And Passes

11.Unions NSW affiliates have identified that access to reasonable areas within enterprises

to meet with members can become problematic when employers refuse to provide

access or are “tardy” in their provision of access to union officials to access sites or

areas within an enterprise to meet union members.

12.Often the meeting room provided to union officials is located in areas requiring safety

and/or security clearances and these processes have been used by employers to

restrict or slow down the access of union officials to meeting rooms and thereby

reducing the time available for members to meet with their employee representatives

during defined break periods.

17 February 2012 6


13.This tactic of intentionally holding up the access of union officials to a site, while claiming

they are not restricting entry, leads to officials being unable to conduct meetings with

members during defined break periods.

S.467 Information About Employees On Roll Of Voters Not To Be

Disclosed

14.Affiliates have identified the election process for protected ballots conducted by the

Australian Electoral Commission’s (AEC) as having a number of deficiencies.

15.For example, a number of union members have been told by the AEC they are ineligible

to vote in a ballot after a comparison of union and employer lists as their names do not

correspond with the employer’s list. This decision is made by the AEC despite those

employees appearing on the union membership database as employed at the enterprise

and being financial union members and this list having been provided to the AEC. In

one specific case, this resulted in the exclusion of approximately 300 employees from a

protected action ballot despite each person being employed within the enterprise where

the ballot was being conducted.

16.A further issue in relation to the non-disclosure of rolls is the ability to have a process

which enables the checking and review of employees who are, according to the AEC,

not entitled to participate in a workplace ballot.

17.For example, in one large hotel enterprise where there was a high staff turnover, a

number of employees remain ‘on the books’ despite not having worked a shift for 12

months. Such a practice resulted in an additional 300 – 400 individuals being able to

participate in the workplace ballot.

18.This tactic is used by the employer to artificially inflate the employee numbers in order to

increase the threshold which has to be met by union members in order to reach the

requisite 50% + 1 employees to enable protected industrial action to be held.

17 February 2012 7


19.There are similar problems associated with long term labour hire employees and

seasonal workers who are considered not to be covered by the scope of the host’s

enterprise agreement, are union members, but are not able to participate in the

workplace ballots regarding conditions governing their placement.

20.Further, in the case of 417 and 457 visa holders, for the process of voting under the Act,

there is often confusion in relation to whether these employees are able to participate in

ballots and whether the AEC has checked their eligibility to do so.

Recommendation 3.

Unions NSW urges the Government to provide a legislative process which enables

unions to have disputed employee lists provided to the AEC for review to ensure

employees who are financial members of the requisite union are not excluded from

workplace ballot processes.

Recommendation 4.

Unions NSW urges the Government to provide the AEC with the necessary legislative

power to enable it to check the eligibility of employees to vote in ballots where the

employer’s list has been legitimately challenged.

21.

17 February 2012 8


Arbitration

Ensuring Workers Have Access To Arbitration Of Workplace Disputes

22.The Fair Work Act does not provide for a universal right to arbitration for workers who

have had their workplace rights infringed or denied. This is contrary to the Objects of

the Act, which provides, at s.3 (e) that it will “...provid(e) accessible and effective

procedures to resolve grievances and disputes…”

23.Most of the benefits otherwise provided for in the Fair Work Act are without value if

workers cannot initiate arbitration proceedings when they have a dispute with their

employer.

24.Without a universal right to arbitration, Unions NSW believes that this Object cannot be

attained.

Arbitration Is Needed For The NES, Modern Awards And Enterprise

Agreements

25.For National System employees, workplace rights are most commonly found in the NES,

Modern Awards and Enterprise Agreements. To ensure that grievances about these

rights can be effectively resolved, the right of arbitration should be extended to disputes

about the application of the NES, Modern Awards and Enterprise Agreements.

26.Arbitration as a right is a necessary tool to make the interpretation and application of the

NES, Modern Awards and Enterprise Agreements work effectively. Arbitration will not

alter these rights but simply deal with their practical application and interpretation.

27.A clear example would be a dispute about an employer’s request under the NES that a

worker perform work on a public holiday. Whereas the employer would insist that their

request is reasonable, the worker may insist that the employer’s request is

unreasonable and that their refusal to perform the work was reasonable.

17 February 2012 9


28.As the Fair Work Act does not contain a right to arbitration about workplace disputes,

the practical reality is that the worker will be forced to work the public holiday or not be

paid. The alternative is that a dispute is filed in a court of jurisdiction as a breach of the

NES. This is a costly process to both the worker and the employer. Workers should not

have to access a court to enforce a right under an NES. Rather, the industrial umpire,

FWA, should have complete jurisdiction to arbitrate over matters concerning the NES

and thereby ensure an Object of the Act is being met in practical terms.

29.In too many cases employers will only agree to effective conciliation of a dispute if they

know they can be subjected to arbitration. Practically, it is only where the worker has an

absolute right to access arbitration that the dispute will be resolved.

30.The Act cannot be meeting its Object to “ensure a guaranteed safety net of fair, relevant

and enforceable minimum terms and conditions” (emphasis added), if there is no

universal right to arbitration.

Recommendation 5.

Unions NSW urges the Government to amend the Fair Work Act to provide that

workers have the right to be able to access arbitration where they have a dispute

with their employer about a matter concerning the operation of the NES, a Modern

Award or an Enterprise Agreement.

17 February 2012 10


s.172 Making an Enterprise Agreement

31.Parliament has adopted the matters pertaining to the employment relationship

formulation from previous Acts such as the Industrial Relations Act 1988 and the

Workplace Relations Act prior to 27 March 2006.

32.Section 172 of the Act requires an agreement to be about one or more permitted

matters. Parliament has intended that section 172(1)(a) should be read in line with

“substantial jurisprudence” on what the phrase meant1. However, the existing

jurisprudence on the phrase is not clearly settled. Neither is the application of the

existing jurisprudence by Fair Work Australia.

33.An example is the decision by the Full Bench in Kagan Logistics Pty Ltd v National

Union of Workers, New South Wales Branch [2011] FWAFB 1724 of 18 March 2011. In

this decision, the Full Bench confirmed a decision and order by Commissioner McKenna

for a protected action ballot. Kagan submitted, inter alia, that a clause providing for an

obligation for the company to only engage employees through labour hire companies if

these employees are engaged in accordance with the terms and conditions of the

agreement was not about a permitted matter.

34.Even though FWA rightly considered that, on existing Full Bench authority of Fair Work

Australia and its predecessors, each of the provisions in question would have been

regarded as permitted matters for an enterprise agreement2. However, it still noted in

obiter that there is some merit in the arguments advanced by Kagan as to why the

provisions are not permitted matters for an enterprise agreement3.

35.The Full Bench therefore did not recognise a “substantial jurisprudence” about what the

phrase means. It narrowed its findings to the genuinely trying to reach an agreement

1 Ex Mem at 6702 Kagan at [7] and [20]3 Kagan at [22].

17 February 2012 11


formula and held the door open for a subsequent challenge of these provisions to the

approval under section 186.

36.It is not satisfactory for employees to participate in protected action with any certainty, if

the clauses agreed to, by a forced concession from their employer, will subsequently be

held to be invalid.

37.The approach set out in section 172 falls short of the Government’s election

commitment to permit parties to bargain and reach agreement on any matter. The

problem with the matters pertaining to the employment relationship formulation is that

the origin of this formulation lies in the conciliation and arbitration powers and the

requirement for an industrial dispute between the employer and the employees.

38.Unfortunately, with the reliance of the legislator on the corporation’s power, the

Legislator kept the restriction of matters pertaining in respect of enterprise agreements.

Recommendation 6.

Unions NSW suggests there is no reason to maintain the matters pertaining

formulation and urges the Government to review s.172 of the Act given clauses, such

as those in Kagan, are aimed at creating a reasonable level of job security for

permanent and casual employees.

17 February 2012 12


Case Studies

Case Study 1: s.176 Bargaining Representatives For Proposed

Enterprise Agreements That Are Not Greenfields Agreements

39.The issue arose in relation to the capacity of Unions NSW to be the bargaining

representative of employees having regard to the terms of section 176 of the Fair Work

Act 2009.

40.On 25 January 2010 Unions NSW sought a majority support determination pursuant to

s.236(1)4 of the Act in respect of batch operators and infrastructure operators employed

by a large international computer company. Unions NSW had been appointed as the

bargaining representative by 48 employees in accordance with the requirements of the

Act.

41.A bargaining representative of an employee who will be covered by a proposed single-

enterprise agreement may apply to FWA for a determination (a majority support

determination) that a majority of the employees who will be covered by the agreement

want to bargain with the employer, or employers, that will be covered by the agreement.

42.The company questioned the capacity of Unions NSW to bring valid application under

Section 236 of the Act. in order to validly make an application in accordance with

s.236(1) of the Act, Unions NSW had to be capable of being a "bargaining

representative" as set out by s.236(1) of the Act. The company argued Unions NSW did

not meet this requirement.

4 (1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

17 February 2012 13


43.S.176(1)5 of the Act identifies who may be a bargaining representative for a proposed

enterprise agreement that is not a Greenfields agreement.

44.The company contended Unions NSW was not an "employee organisation" as that term

is used in subsection 176(1 )(b) of the Act which is defined in s.12 of the Act to mean

"an organisation of employees."

45.While there is no definition under the Act of "organisation of employees”, "organisation"

is defined in s12 of the Act to mean an "organisation registered under the Fair Work

(Registered Organisations) Act 2009".

46.Thus the employer contended Unions NSW was not an organisation registered under

the Act and thus it cannot be an "employee organisation" for the purposes of s.176(1)(b)

of the Act.

47.Further, the company argued Unions NSW was an unincorporated association lacking

separate legal identity. It is provided in s22(1 )(a) of the Acts Interpretation Act 1901

that the word "person", where used in a Commonwealth Act, and unless the contrary

intention appears, includes a body politic or corporate as well as an individual.

48.Nothing in the Fair Work Act suggests that "person", where used in s.1 76(1) of the Act,

includes an unincorporated association lacking separate legal identity. The reference to

"person" is therefore properly restricted to individuals and bodies politic and corporate.

49.Accordingly, if Unions NSW is not a "person" who may be appointed by an employee as

the employee's bargaining representative for the agreement, so as to enliven s176(1)(c)

of the Act, then subsection 176(1 )(d) is of no assistance to 'Unions NSW'. This means 5 Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in

operation—the organisation applied for the authorisation;unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

17 February 2012 14


Unions NSW has no capacity to bring the purported Application and the Application

should be struck out.

Recommendation 7.

Unions NSW urges the Government to amend the Act to enable employees to appoint

organisations constituted as recognised State Peak bodies to be their bargaining

representatives.

50.

17 February 2012 15


Case Study 2: Project Agreements

51.Unions NSW was dealing with a national system employer within the meaning of Fair

Work Act 2009 who employ a small workforce and had been engaged to carry out work

on a major development in Sydney. The conditions of employment for its employees

were governed by a nationally registered enterprise agreement.

Previous Industrial Arrangements Under NSW State Industrial Law

52.Previously s.15(4) of the Industrial Relations Act 19966 gave the Commission the power

to make project awards that (a) set the conditions of employment in connection with a

project or (b) set the conditions of employment of employees of a single employer or for

employees of two or more associated employers.

53.This power is now rendered inoperative by the operation of s26 of the Fair Work Act

2009, which states effectively that the Fair Work Act 2009 is intended to apply to the

exclusion of all State and Territory industrial laws so far as they would otherwise apply in

relation to a national system employee or national system employer.

54.By virtue of the referral of the operation of the Fair Work Act 2009 and the referral of

powers by the NSW State Government to the Commonwealth which took effect on 1

January 2010, all private sector employers are now national system employers.

55.There is no State Industrial Law operating in NSW under which we can make a Project

Agreement or Award under State Industrial Law.

6 (4)Despite subsection (3), the following awards may, with the consent of the parties to the making of the award, apply retrospectively from a date, specified in the award, that is earlier than any date referred to in that subsection:(a) an award that sets conditions of employment in connection with a project,(b) an award that sets conditions of employment for employees of a single employer or for employees of two or more

associated employers.17 February 2012 16


Impact of Fair Work Act 2009 and the Building and Construction Industry

Improvement Act 2005

56.Prior to 2006, Unions NSW on behalf of construction unions would have sought to make

a project agreement / award with the employer.

57.Whilst the Act has removed some obstacles to multi-employer bargaining, its emphasis

is focused on “enterprise” based bargaining at the single enterprise level and it does not

provide for any provisions that enable the making of project awards as previously used

for major projects in the New South Wales construction industry.

58.s.58(1) of the Act only allows for “one enterprise agreement can apply to an employee at

a particular time” which, while the National Code of Practice for the Construction

Industry and Implementation Guidelines August 2009 (the “Code”) now allows for

Project Agreements, the Act prohibits the negotiating of multi-employer agreements

which cover employees already covered by existing a single enterprise agreement.

59.There are also no provisions which enable the altering of current agreements to include

a provision dealing with additional payments or conditions for subcontractors on a

project.

60.The Act does not provide a mechanism to enable a project agreement to be made, nor

does such a project meet the requirements of a Greenfields project as the construction

company and the associated subcontractors to be employed to undertake work on the

project already employ workers covered by existing industrial agreements.

61.The parties are further prohibited from entering into an unregistered agreement by 6.64

of the Building and Construction Industry Improvement Act 2005 which states project

agreements are unenforceable unless they have been registered and certified.

62.Further, an unregistered agreement would place the employer in breach of clauses 6.1.2

and 6.1.3 of the Code and makes the agreement non-compliant with the Code.

17 February 2012 17


63.Further, clauses 6.3.1 and 6.3.2 of the Code prohibit direct or indirect coercion being

applied by an employer to subcontractors to participate in making over-award payments

such as site allowances, redundancy and superannuation contributions.

64.For the employer, any breach of the Code would exclude it from tendering for or working

on any projects directly or indirectly funded by the Australian Government.

Recommendation 8.

Unions NSW urges the Government to amend the Act to enable project agreements

to be approved for major construction projects.

17 February 2012 18


Objectives of the Act

65.While the words “fair” or “fairness” feature in sub-sections 3 (b), 3(c), 3(e) and 3(f), the

objects cover a lot more than Justice Higgins was contemplating in the Harvester

Judgement.

66.Unions NSW submits that the objects of the Fair Work Act, when considering the words

of Justice Higgins on the concepts of what is “fair and reasonable” may be in internal

conflict.

67.Taking the object in sub-section 3(a) alone - Can workplace relations law be both fair to

working Australians and flexible for Australian business? Can workplace relations law be

both fair to working Australians and promote productivity and economic growth?

68.The Fair Work Act implies a balance can be achieved between these competing notions.

Yet, Unions NSW submits, the evidence shows that this is not the case. Further, Unions

NSW submits, a choice must be made between these competing priorities and the

decision can only be a workplace relations system that delivers fairness to workers.

69.In 1907, Justice Higgins said that meant “a wage sufficient to insure the workman food,

shelter, clothing, frugal comfort, provision for evil days, &c., as well as reward for the

special skill of an artisan if he is one”. Such a notion needs updating to reflect new test

case and community standards.

70.A good starting point would be the National Employment Standards (NES) set out in Fair

Work Act, which apply to the employment of employees. These are:

Maximum weekly hours of work - 38 hours per week, plus reasonable additional

hours.

17 February 2012 19


Requests for flexible working arrangements - allows parents or carers of a child

under school age or of a child under 18 with a disability, to request a change in

working arrangements to assist with the child’s care.

Parental leave and related entitlements - up to 12 months unpaid leave for every

employee, plus a right to request an additional 12 months unpaid leave, and other

forms of maternity, paternity and adoption related leave.

Victims of domestic violence – Dealing with this issues through the provision of:

i. An entitlement to ten days additional paid leave for victims of domestic violence

to attend to matters that are not covered by existing leave provisions, for

example, going to court to get a domestic violence protection order or seeking the

assistance of a domestic violence support service;

ii. Extending the section 65 right to request flexible working arrangements to victims

of domestic violence, with no minimum length of service;

iii. The inclusion of ‘victim of domestic violence’ as a protected attribute under

sections 351(1) and 772(1)(f).

Annual leave - 4 weeks paid leave per year, plus an additional week for certain shift

workers.

Personal / carer’s leave and compassionate leave - 10 days paid personal /

carer’s leave, two days unpaid carer’s leave as required, and two days

compassionate leave (unpaid for casuals) as required.

Community service leave - unpaid leave for voluntary emergency activities and

leave for jury service, with an entitlement to be paid for up to 10 days of jury service.

17 February 2012 20


Long service leave - a transitional entitlement for employees who had certain LSL

entitlements before 1/1/10 pending the development of a uniform national long

service leave standard.

Public holidays - a paid day off on a public holiday, except where reasonably

requested to work.

Notice of termination and redundancy pay - up to 4 weeks notice of termination (5

weeks if the employee is over 45 and has at least 2 years of continuous service) and

up to 16 weeks redundancy pay, both based on length of service.

Provision of a Fair Work Information Statement - employers must provide this

statement to all new employees. It contains information about the NES, modern

awards, agreement-making, the right to freedom of association, termination of

employment, individual flexibility arrangements, right of entry, transfer of business,

and the respective roles of Fair Work Australia and the Fair Work Ombudsman.

71.However, Unions NSW submits that there are other minimums that are appropriate for

all workers such as:

The right to be paid in accordance with an enterprise agreement or modern award,

which contains proper wages;

Increased rights (greater than the NES right to request in limited circumstances) to

move between different forms of employment or change working hours. This could

be modelled on the Netherlands legislation that gives employees (in firms with more

than 10 employees) the right to reduce or increase their working hours, with

employers able to deny employee requests for such changes only on the grounds of

specific conflicting business interests. Such a system needs to protect employees

17 February 2012 21


against employer demands for undesirable variations and also enhance worker

choices for more variation to suit their needs;

A reasonable degree of regularity and predictability as to weekly income and hours

of work;

Access to a career path and opportunities for skills development;

The right to be consulted about workplace changes that have the potential to cause

people to lose their jobs. The ILO has published considerable useful guidance on

what proper consultation should entail;

Restrictions on fixed-term employment and defined differences in the treatment of

temporary and continuing employees. The rules should be model on the European

approach and cover requirement of reason, duration, renewal, conversion to

permanency, and compensation at the end of the fixed-term;

Restrictions on use of casual employment and labour hire. In relation to labour hire

the Agency Workers Regulations in the United Kingdom, which came into effect late

last year, is a good model. It gives agency workers after 12 weeks of placement the

entitlement to the same basic employment and working conditions as if they had

been recruited directly. Some other rights flow on engagement;

The right to raise genuine grievances or problems at work and have them resolved

fairly without putting future work at risk;

Initiatives designed to specifically protect migrant workers such as translation of

awards and contracts, increased unfair dismissal timeframes, active enforcement

activities and education; 7

7 See the paper Women Raising our Voices: Voices of Migrant and Refugee Women in Precarious Employment produced by the Migrant Women Workers Action Group in November 2010, which is a powerful document that shows how the current industrial relations system fails migrant workers. Unions NSW commends the paper to the Inquiry

17 February 2012 22


The encouragement of permanent employment;

Quality work; and

The right to an absence of discrimination because of your mode of engagement.

72.The above notions, together with the NES, should be the normal and standard incidents

of work, to be departed from only in certain confined circumstances.

73.The more fundamental problem with the NES is two-fold:

The NES only applies to employees; and

The NES sits within the contradictory framework of the objects of the Fair Work Act

that incorrectly put as much emphasis on the needs of business as the needs of

workers.

Recommendation 9.

Unions NSW urges the Government to amend the Act to give primacy to the needs of

workers in relation to certain minimum standards and to extend the reach of those

minimum standards to be extended to all “workers”.

17 February 2012 23

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