“Decent Work – Decent Lives: Line of Decency and the
Fair Work Act”
United Voice Submission to the Fair Work Act Review
Panel, on the Fair Work Act 2009
Authorised by Louise Tarrant, National Secretary, United Voice
303 Cleveland Street
Redfern NSW 2016
Phone: 8024 3000
Email: unitedvoice@unitedvoice.org.au
Executive Summary
In making our submission we direct the Review Panel’s attention to a report given by the DirectorGeneral of the International Labour Organisation (ILO) on decent work:
The goal of decent work is best expressed through the eyes of the people. It is about your job and
future prospects; about your working conditions; about balancing work and family life... It is about
gender equality, equal recognition… [it is about] receiving a fair share of the wealth that you have to
create and not being discriminated against; it is about having a voice in your workplace and
community… And everywhere, and for everybody, decent work is about securing human dignity…
[Decent work deficit] is the absence of sufficient employment opportunities, inadequate social
protection, the denial of rights and work and shortcomings in social dialogue. It is a measure of the
gap between the world we work in and the hopes that people have for a better life1.
The regulation of work through our industrial relations machinery is fundamentally about “decent
work” – from the determination of a living wage, to occupational health and safety, to job security,
to equal pay for work of equal value, and to paid leave arrangements. The goal of decent work
should be achievable by all workers in Australia – including workers that are considered vulnerable.
The provision of “decent work” as envisaged by the ILO should form an explicit part of this review, as
the basis of the Fair Work Act is fairness.
The reason we raise the issue of decent work is that vulnerable workers, many of whom are our
members, are disadvantaged by the Fair Work Act 2009. They are unable to achieve the goal of
decent work and share in Australia’s economic prosperity. We will be providing evidence of how the
Act affects our members in this way, as well as providing broader submissions about the Act.
The Act covers a majority of workers employed in Australia. Given this level of coverage, United
Voice believes that the system of employment regulation needs to be reframed to include the
obligation of decent work.That is, the employment relationship needs to viewed as a social relation,
as human labour is fundamentally unique and different from the commodities used to create goods
and services. The employment relationship needs to be redefined in terms of providing decent work,
and retaining the implied social contract of equity and fairness. It is from the foundation of fairness
that productivity and flexibility arise.
Recommendations:
1. To this end, United Voice recommends that Fair Work Australia investigate, develop and
implement a suite of rights for vulnerable workers, recognising the power differentials and
difficulties that exist to gain better conditions at work. In undertaking this work,
consultation will be undertaken with registered organisations of employees (including
United Voice), community organisations, and other related organisations, with the prime
1
Somavia, Juan (2001) Report of the Director-General: Reducing the decent work deficit – the global challenge,
http://www.ilo.org/public/english/standards/relm/ilc/ilc89/rep-i-a.htm
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focus on increasing fairness, and increasing the capacity to organise and bargain in the
workplace, and across the industry of these workers.
Safety Net and Individual Flexibility Agreements (IFAs)
2. That the FWA Minimum Wage Panel receive ongoing funding to maintain a range of
relevant, regular, and consistent primary data in relation to the needs of the low paid to
inform the Panel in its determination for the minimum wage and safety net adjustment.
That this information be available to the public.
3. That the Minimum Wage Panel, as part of its decision, includes a consideration of the
special needs of part-time and casual workers.
4. That the National Employment Standards include provisions for conversion of casuals to
permanent ongoing employment, and increase the range of situations in which an
employee can request flexible work.
5. That FWA have a role overseeing and regulating IFAs, ensuring that the obligation for
employees not to be left worse off can be better enforced.
Unfair Dismissal
6. Scheduling of unfair dismissal conferences and hearings should take into account the
availability of all parties. To ensure ‘a fair go all round’, FWA must extend procedural
fairness to all parties in scheduling conferences and hearings, extensions and
adjournments. Procedural fairness needs to take place and be part of these decisions.
7. That the employer should be required to file Form 3 at least seven days prior to an unfair
dismissal conference.
8. That the time limit for unfair dismissal applications be increased to at least 21 days.
9. In order to clarify what constitutes a genuine redundancy in relation to unfair dismissal
proceedings, that the provisions make clear that the primary test for “meaning of genuine
redundancy” (clause 389) will be used.
Migrant Workers
10. That there be the introduction of an immigration inspectorate into the Office of the Fair
Work Ombudsman to investigate breaches of the Fair Work Act pertaining to businesses
employing foreign workers. The immigration inspectorate should be able to operate
independently to investigate, prosecute and sanction an employer with a criminal or civil
penalty.
11. That there be ‘whistleblower’ protections for foreign workers in acknowledgement that
without such protections the power imbalance between employers and workers will
render workers silent even if the immigration inspectorate is created.
12. That there be adequate enforcement of employer breaches to promote community
confidence in the immigration inspectorate.
13. That there be improved access for unions to workplaces to work with foreign workers to
prevent the breach of visa conditions. This would include allowing the Minister to appoint
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the National Secretary (or equivalent) of a registered trade union as an inspector for the
purposes of the Act.
General Protections
14. That unfair dismissal and general protections applications are able to be taken out
concurrently and dealt with by the appropriate tribunal at the same time.
15. That a less costly avenue for general protections claims be considered and acted on to
ensure that vulnerable workers are able to seek relief on matters as a result of
contraventions of the general protections without an unfair financial burden to pursue the
matter.
16. That employees are able to invoke the general protection provisions to challenge their
termination without a time limit on making an application.
Sham Contracting and Change of Contract
17. That the Act includes a definition of sham contracting. As part of the remedies for cases
successfully prosecuted, that the worker may be converted to ongoing full time or part
time employment.
18. That the transmission of business provisions provide for change of contract.
Union Rights and representation
19. That the model dispute resolution procedures and/or dictionary contain a definition for
‘representative’ that reflects the right of an employee to be represented by a registered
organisation of employees. And that clause 387 (d) includes the term ‘representative’.
20. That the Act recognises the role of delegates in the workplace.
Enterprise Bargaining and Vulnerable Workers, and Industrial Action
21. That FWA develop and implement Industry Councils in specific industries and sectors
where there is a history of low pay and low engagement in enterprise bargaining.
22. That clause 471 (5) in defining the industrial action period apply to, in each instance, the
total duration of industrial action within that day.
23. That there be no time limit in which to take protected industrial action after a ballot has
been declared in favour of taking specific forms of industrial action.
24. That the obligations to give notice of taking protected industrial action be the same for
employees and employers.
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About United Voice
United Voice is a union of 120,000 workers organising to win better jobs, stronger communities, a
fairer society and a sustainable future. The majority of United Voice members are women, and
members are generally employed on a casual or part-time basis. United Voice members come from
culturally and linguistically diverse backgrounds, and work in industries including aged care, health
care, early childhood education and care, school education, cleaning, security, hospitality, and
manufacturing. United Voice members are united by their belief in the dignity of workers, the right
to fair and just treatment in the workplace, and fair and just access to wealth, security and a voice in
our community.
Introduction and an historical overview of the Fair Work Act 2009
United Voice welcomes the Minister for Employment and Workplace Relations undertaking the postimplementation review of the effectiveness and efficacy of the Fair Work Act 2009 (the Act). We
welcome the opportunity to submit written comments on how the Act has fared for members of
United Voice, noting our members work largely in sectors that receive award/slightly above award
payments, and largely work part-time or casual: our members are vulnerable workers. United Voice
strongly supports the principles that workplace relations should ensure the dignity of workers, the
right to fair and just treatment in the workplace, and fair and just access to wealth, security and a
voice in our workplaces and community. These principles will underpin the feedback that United
Voice makes on the effectiveness and efficacy of the Act as it pertains to our members.
The objects of the Act can be defined around the poles of fairness, productivity and flexibility.
According to the Act2:
 Fairness includes: minimum enforceable safety net; statutory individual employment
arrangements do not undermine the safety net; balancing work and family; freedom of
association; free from discrimination; clear procedures to resolve grievances and disputes;
and sharing in Australia’s economic prosperity.
 Productivity includes: increasing workplace productivity; and use of enterprise bargaining.
 Flexibility includes: business flexibility; and employee flexibility.
The objects of the Act recognise the importance of work at an individual level, and within the
broader sphere of Australia’s society and the economy, to promote social inclusion and economic
prosperity and ultimately recognise the importance of fairness. The legislation may have fairness as
its intent however it is the enactment where there is a rupture for our members.
This Review is focussed on the Act and its impact in the workplace, and society. It is also helpful to
remember that fairness has largely been fundamental to development of industrial relations in
Australia. In the Harvester3 decision Higgins understood “fair” as a social relation, and as determined
2
Clause 3, http://www.fwa.gov.au/documents/legislation/fw_act/FW_Act.htm#P63_3089
Ex parte HV McKay (1907) 2 CAR 1, full text also found:
http://www.aph.gov.au/library/intguide/law/harvester.pdf
3
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by the mode in which an agreement has been obtained. The issue of decency is in the determination
of “fair and reasonable” wages, and implied in “The Excise Tariff Standard for Time-Work” as a
process trying to provide a more secure form of employment for workers overall, including those
who did not fit within the classifiable systems of work that existed at the time. Further, to Higgins’
decision, human labour requires an employment standard “appropriate to the normal needs of the
average employee, regarded as a human being …”4 Higgins’ explicitly situates human labour as
having a unique place in industry, and in the employment relation, as the determination of wages
(and we would also argue conditions) should not solely and ultimately be left up to the “higgling of
the market”5. These foundations of Australian industrial relations framework have for the most part
been reinforced through the different iterations of federal and state workplace legislation.
The ideological underpinnings of Australian industrial relations legislation as discussed through the
Harvester decision resonates within the International Labour Organisation (ILO) Declaration on
Fundamental Principles and Rights at Work6, and the ILO’s decent work agenda. Australia ratified 7
of the ILO fundamental conventions, and has incorporated aspects of these fundamental
conventions in the Act. The opening statement of the Declaration on Fundamental Principles and
Rights at Work indicate that social progress and economic growth are viewed as complementary.
Further, “the guarantee of fundamental principles and rights at work is of particular significance in
that it enables the persons concerned, to claim freely and on the basis of equality of opportunity,
their fair share of the wealth which they have helped to generate, and to achieve fully their human
potential”7. These principles need to be afforded to all workers in Australia, including vulnerable
workers. In this way, the efficacy of these fundamental principles and rights that are given legislative
effect in the Act also need to be measured against their implementation at work and broader
society.
The use of the section 51(XX), the corporations power, was used to implement close to a unitary
system of industrial law in Australia 8 9. This does not mean that labour has lost its unique and
different place in the process of formal industry. United Voice contends that the employment
contract, a social contract, under the Act maintains that human labour is not a commodity in the
way electricity, tomatoes, stationery, and other production inputs are conceived.
There have been massive changes to federal industrial relations legislation since the introduction of
enterprise bargaining in 1991. With the deleterious effects of the WorkChoices amendments to the
Workplace Relations Act 1996 on workers’ rights, United Voice is pleased to see the removal of key
planks of that legislation. However we do not believe that the Fair Work Act goes far enough to
recognise the importance of vulnerable workers, and the specific needs of our members in ensuring
4
Ex parte HV McKay (1907) 2 CAR 1, pg 3, full text also found:
http://www.aph.gov.au/library/intguide/law/harvester.pdf
5
Ex parte HV McKay (1907) 2 CAR 1, pg 3, full text also found:
http://www.aph.gov.au/library/intguide/law/harvester.pdf
6
http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang--en/index.htm
7
Text for the Declaration is found here: http://www.ilo.org/declaration/thedeclaration/textdeclaration/lang-en/index.htm
8
In particular clause 51 ( XX) http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html
9
We recognize that the external affairs, and the conciliation and arbitration powers were also used.
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that decent work and workplace rights, with all that entails, coexist such that the economic
prosperity of Australia is able to be better shared.
Given the foundation of fairness within the Act, United Voice makes its submission and
recommendations from the basis of fairness. In the workplace fairness for workers is determined by
the capacity to organise and the capacity to bargain. Further, United Voice recognises that the
capacity to organise and capacity to bargain are different, especially in the case of vulnerable
workers.
Vulnerable Workers and the Segmented Labour Market
United Voice recognises in the construction of the Act that there is an implicit acknowledgement of
the relative power differentials that exist between and within industries/sectors, employers, and
workers and their representative organisations. This phenomenon of the relative power differentials
can be broadly described as the segmentation of the labour market, whether these differentials
have traditionally existed or are recent trends.
Segmented labour markets recognise that there is a different ability to bargain depending on the
perception of value and reward for work performed. Utilising a dual labour market segmentation
theory, this recognises that there are jobs and occupations that are socially and economically valued,
and rewarded differently10 than other types of occupations and industries – a “primary” segment for
more socially desirable, valued and rewarded jobs and occupations, and a “secondary” segment
considered the periphery of the labour market with less socially desirable, valued and rewarded jobs
and occupations. Given the difference in value and reward for different occupations and industries,
the resultant power differentials affect the wages and conditions of workers. There are greater
difficulties to improving the conditions that currently exist in what is notionally called “secondary”
labour markets.
United Voice represents members who would work in what is notionally called the secondary
segment of the labour market, despite our members having similar education and training
requirements, and broadly similar work requirements in terms of level of supervision; task level;
and, judgement, independence and problem solving11 to workers in the notional primary segment;
and we would also argue they perform jobs of both economic and social significance. The jobs that
our members work in can be broadly characterised by:
 Low wages (wages that are largely at the minimum wage/modern award wage level; where
enterprise bargaining exists it is about 2-5% above the minimum wage/modern award level)
 Internal labour markets are not well developed to provide a clear career/promotion
pathway that recognises improved skill and education with commensurate rises in pay
 Job allocation and hiring/firing decisions are largely management controlled
 Working conditions largely reflect the industry modern award conditions
10
This segmentation can be due to historical reasons or recent events.
This is evidenced by the linking of our Childcare Award classification structure with the Metals C10
classification. The case found that there is comparability. The case can be found print number 4316.
11
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
High labour turnover of the workforce
United Voice is working with members through our industry campaigns to create decent jobs.
However in doing this the Act needs to better assist workers legitimate aspirations and activities
toward creating fair, sustainable and decent jobs in the industries in which our members work, and
ensuring that the economic prosperity of Australia is shared by all.
Recommendation:
1. To this end, United Voice recommends that Fair Work Australia investigate, develop and
implement a suite of rights for vulnerable workers, recognising the power differentials and
difficulties that exist to gain better conditions at work. In undertaking this work,
consultation will be undertaken with registered organisations of employees (including
United Voice), community organisations, and other related organisations, with the prime
focus on increasing fairness, and increasing the capacity to organise and bargain in the
workplace, and across the industry of these workers.
The United Voice submission will focus on the following themes:
 Fairness
o Safety Net
o Individual Flexibility Agreements
o Unfair Dismissal
o Migrant Workers
o General Protections
o Sham Contracting
 Capacity to organise, and be represented and heard in the workplace, industry and society
o Union rights and representation
o Right to representation at work, the industry, and the economy
 Capacity to bargain and share in the economic and social prosperity of Australia
o International Obligations and Collective Bargaining
o Enterprise Bargaining and Vulnerable Workers
o Issues in Enterprise Bargaining
o Industrial Action
o FWA’s dispute settling powers
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Fairness
Safety Net
Low wages and Award Dependency
According to the most recent Australian Bureau of Statistics report into Employee Earnings and
Hours12, 15.2% of employees have their pay set by the modern award. This group of employees is
highly represented within United Voice’s membership. For us, the minimum wage decision and
safety net adjustments form a component of sharing in the economic prosperity of Australia.
As part of the 2011 Minimum Wage decision, Fair Work Australia undertook research into how to
measure the needs of the low paid, and released its report “Measuring the needs of the Low Paid” 13.
United Voice agrees with a multidimensional approach to the issue of low pay – “the Panel should
have regard to a range of relevant data in relation to the needs of the low paid, all of which needs to
be considered and weighed up, with the exercise of appropriate judgement. These include the
relative position of low-paid individuals and households in the distribution of earnings, of income
and expenditure, and levels of financial stress and deprivation…”14.
United Voice agrees with the view presented, “[t]here is a widespread view that more regular and
consistent primary data as to the needs of the low paid is required and, if available, would better
inform the Panel”15.
With the decline of centralised wage fixing, and the rise of industrial relations legislation that
prioritises decentralised wage fixing and conditions negotiations, in particular enterprise bargaining,
this has meant that the idea of a living wage has disappeared and been replaced with market wage
rates. The situation is such that we now have a system with guaranteed legislated minimum award
wages, however to improve conditions beyond the award, an agreement at the firm/enterprise level
needs to be bargained. The practicalities of wide spread bargaining in the notional secondary
segment of the labour market would be incredibly difficult without the necessary economic
wherewithal to be successful for employees. The practicalities are further exacerbated by employers
who do not see the value of enterprise bargaining. Thus the importance of the minimum wage and
safety net adjustments for our members.
The minimum wage increases are necessary. However it is incredibly difficult for a worker to live on
the minimum/modern award wage and have any sort of life that reflects what is needed to
participate meaningfully in the economic, social, cultural, and political life of our nation16. The
12
ABS (2010) Employee Earnings and Hours cat no 6306
Measuring the needs of the low paid: report to the Minimum Wage Panel (2011), SDP Watson, Prof Watson,
http://www.fwa.gov.au/sites/wagereview2012/low_paid/S290_Report.htm
14
Measuring the needs of the low paid: report to the Minimum Wage Panel (2011), SDP Watson, Prof Watson,
http://www.fwa.gov.au/sites/wagereview2012/low_paid/S290_Report.htm
15
Measuring the needs of the low paid: report to the Minimum Wage Panel (2011), SDP Watson, Prof Watson,
http://www.fwa.gov.au/sites/wagereview2012/low_paid/S290_Report.htm
16
The difficulties of living on the modern award wage can be heard by: United Voice Cleaning members here,
http://australianpoliticstv.org/2012/02/08/united-voice-clean-start-insecure-work-inquiry-submission/ ; and
our Early Childhood Education and Care members in “Big Steps in Childcare: The Childcare Workforce Crisis”
(http://bigsteps.org.au/files/crisispaperfinalversion.pdf )
13
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pressures of living at the low wage end of the labour market is further exacerbated, when taking into
account the number of United Voice members who are also working part-time and casually (and do
not accumulate leave).
Recommendations:
2. That the FWA Minimum Wage Panel receive ongoing funding to maintain a range of
relevant, regular, and consistent primary data in relation to the needs of the low paid to
inform the Panel in its determination for the minimum wage and safety net adjustment.
That this this information be available to the public.
3. That the Minimum Wage Panel, as part of its decision, includes a consideration of the
special needs of part-time and casual workers.
Modern Awards
The introduction of the modern awards has on the whole simplified the safety net system, yet
simpler does not mean that it is easier to read and apply than previous arrangements. Many modern
awards are now silent on matters that were once dealt with in pre-Fair Work Awards. This creates
grey areas where employees and employers are unaware of their rights and obligations, and this also
causes issues in the transition to modern awards.
The transition to the modern award system has been problematic in some areas. An overly
complicated transitional system has significantly increased the number of underpayment and
entitlement queries that United Voice receives. The ability to refer complaints to the Fair Work
Ombudsman has alleviated some of the workload that this creates. In practice, we have found that
many smaller employers find the transitional system too difficult and instead choose to pay a flat
over-award wage rate in lieu of penalties, loadings and allowances. This results in both an erosion of
penalties, loadings and allowances and a risk of underpayment where the employer has not properly
calculated the over-award rate or has not understood its contractual obligations regarding those
other payments.
Other major work that has resulting from the introduction of the modern awards has been retaining
pre-modern award conditions that were more beneficial than the modern awards. The limitation to
content in the modern awards, and the phasing out of certain conditions, has meant there are
difficulties in preserving separate, ongoing contractual entitlements for our members. United Voice
is concerned about the ability of members to maintain these conditions given the emphasis within
the Act on enterprise bargaining and limitations on what matters can be included in modern awards.
United Voice will be discussing the issues of enterprise bargaining later in this submission.
United Voice is an advocate for industry based awards. Problems are created when occupations that
are performed across different industries are not appropriately recognised within the industry
award.
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For example, a security guard employed by a Hospitality Industry employer is covered by the
Hospitality Industry General Award (HIGA). An enterprise agreement that is created would be Better
Off Overall Test (BOOT) tested against the HIGA. If the security work is then outsourced to a contract
security company, the enterprise agreement transfers automatically for existing employees and, on
application, can be extend to cover non-transferring employees. The transferrable instrument is not
required to meet a BOOT test against the otherwise applicable Security Industry Award 2010. This
can result in the Security Industry Award 2010 (for example) being undercut.
Given that there is to be a review of the modern awards, United Voice is noting these particular
anomalies, and is not seeking in this submission to make recommendations for changes.
The National Employment Standards (NES)
On the whole the NES are easy to read (with the exception of the parental leave provisions) and is an
improvement on the Workplace Relations Act 1996 after the WorkChoices amendments. We see two
main outstanding areas for improvement: casual employment and flexible work provisions.
Casual employment
We would like to see legislative provisions aimed at addressing casualisation of the
workforce. For example, provisions requiring casuals to be given the option of converting to
permanent employment after 12 months of continuous, regular and systematic
employment. Provisions addressing casualisation would go to the objects of the Act
regarding a fair and relevant safety net, and promote economic prosperity and social
inclusion for all Australians.
Flexible work provisions
We are concerned that the right to request flexible work is limited to parents of young
children. We would like to see this right extended to support other needs for flexible work,
such as care for elderly relatives or adult children with disabilities or workers returning to
work after an extended period of illness or injury or seeking to combine study and work.
Such an extension of this right would go to the object of the Act to enable employees to
balance work and family and to provide a fair and relevant safety net.
Recommendation:
4. That the National Employment Standards include provisions for conversion of casuals to
permanent ongoing employment, and increasing the range of situations in which an
employee can request flexible work.
Individual Flexibility Arrangements
United Voice has found that individual flexibility arrangements (IFAs) are not used to create
individually tailored modern award conditions to meet genuine personal needs of employers and
employees. We have seen a significant number of IFAs that have been drafted by the employer for
use at worksites. The majority of these IFAs are pro-forma. The content of the IFAs has for the most
part been motivated by employers trying to undermine or circumvent modern award or agreement
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conditions. We have on file a number of IFAs that we would be willing to share with the Review
Panel.
We have not seen an IFA that was drafted at the request of an employee. Further, it is our view that
employees are not using IFAs as they do not have the industrial power to negotiate deviations from
normal work arrangements for their benefit. Additionally employers are unwilling to actually change
an employee’s conditions of employment in such a way that is more beneficial if they are required to
put it in writing.
Given the IFAs on file, United Voice believes that all but one of the IFAs would not meet the
requirements of the Act, and would result in the employee being worse off. However, because the
IFAs are not required to be registered or pass BOOT we cannot see that without oversight how
obligations to ensure the employee is not left worse off will be regulated without costly and timely
litigation.
We have one case at the moment where we are contesting a series of IFAs being pursued by
Spotless. So far the case has taken 9 months to get up to the mediation stage in the Federal Court.
The processes of the courts appears open to employers delaying the resolution of these types of
matters. We believe if FWA had oversight and regulatory roles in IFAs that this matter would have
been resolved earlier.
Recommendation:
5. That FWA have a role overseeing and regulating IFAs, ensuring that the obligation for
employees to not be left worse off can be better enforced.
Unfair dismissal
It is United Voice’s view that an employee is still placed at a disadvantage to employers. This is in
part due to the profile of our membership and the power differentials that exist for our members in
the industries in which they work.
One way to remedy this imbalance is to remove any qualifying period to make an application for
unfair dismissal. No employer genuinely requires 6-12 months to determine if someone is a suitable
employee. This time period of 6-12 months is more than sufficient time to undertake performance
management or disciplinary process and fairly terminate an underperforming employee.
In terms of the specific unfair dismissal provisions contained in the Act, we submit the following:
Unfair dismissal matters are generally dealt with in a timely fashion. However we have experienced
issues with how directions and procedural applications are dealt with by FWA. This includes:
 Refusing to reschedule matters when there are issues with availability due to multiple and
concurrent listings.
 Refusing to extend time by one week to lodge witness statements when seeking medical
reports from a doctor that could not be obtained previously as the doctor was overseas.
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





Different treatment of Unions compared to non-legally represented employers. In one
particular case an employer was granted multiple adjournment requests without United
Voice being consulted yet an adjournment request by United Voice officials was denied.
There being no specific timeframe as to when the employer should file their Form 3. We
often do not receive it until immediately before the conference17.
Refusal to schedule a directions hearing when requested by a Union after the employer
failed to provide witness statements as directed by FWA.
The non-transparency of procedural applications, including applications not being served on
the other side.
The refusal to determine jurisdictional objections before the substantive matter is set down
for hearing. For example, FWA has been listing the jurisdictional objection on the same day
as the substantive hearing, with the jurisdictional objection to be dealt with first. What this
means is that the substantive case must be prepared by both parties, yet United Voice
officials have found that the substantive case has not been prepared by the employer. In
scheduling the hearing this way, the time of the parties has been wasted.
Setting out what the practical differences are between a conference and a hearing during
the arbitration of matters.
Recommendations:
6. Scheduling of unfair dismissal conferences and hearings should take into account the
availability of all parties. To ensure ‘a fair go all round’ , FWA must extend procedural
fairness to all parties in scheduling conferences and hearings, extensions and
adjournments procedural fairness needs to take place and be part of these decisions.
7. That the employer should be required to file Form 3 at least seven days prior to an unfair
dismissal conference.
The 14-day time limit on unfair dismissal applications is problematic. It is not uncommon for
members to make their initial enquiry just before the due date (when there is insufficient time to
take proper instructions) or after their application is out of time. The effectiveness of these
protections is therefore severely limited by this unrealistic timeframe, particularly for members
where English is not a first language.
Recommendation:
8. That the time limit for unfair dismissal applications be increased to at least 21 days.
In relation to the process of telephone conciliation, United Voice is of the view that this should only
occur when both parties agree or a compelling reason that one side cannot attend in person. In
person conferences give the parties an opportunity to discuss a matter in more detail, and ensure
that there is not a misunderstanding or miscommunication. It is often the case that telephone
conferences can be hard to follow because the parties are unable to see the documentation that is
17
For example, in United Voice’s WA Branch, a 27 page Form 3 was sent 2 hours before the conference.
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being discussed by one side, evidence that is relevant may not be exchanged, and often employers
fail to lodge Form 3 or they are not served before the conference.
In relation to the removal of genuine operational reasons defence to unfair dismissal, the outcome
has been that a large number of employers are now genuinely protected from unfair dismissal.
However in relation to the issue of whether a dismissal is a genuine redundancy, clarity is needed
around which criteria are used by the unfair dismissal provisions to determine whether this is the
case. We mention the case of Di Masi v Coastal Fisheries P/L [2010] FWA 6280 (WA), where FWA
held that an employer who did not satisfy the consultation provisions of the relevant industrial
relations instrument did not unfairly dismiss an employee because the employer genuinely did not
require the job to be performed by another person. The tribunal found this satisfied the “any other
matters FWA considers relevant” indicia of the unfair dismissal provisions. Clause 389, “Meaning of
genuine redundancy”, in the Act does not appear to have been a consideration in this case.
In the case of whether an unfair dismissal is a genuine redundancy, United Voice’s view is that clause
389 should be the primary test for whether a genuine redundancy has occurred in unfair dismissal
proceedings.
Recommendation:
9. That to clarify what constitutes a genuine redundancy in relation to unfair dismissal
proceedings that the provisions make clear that the primary test for “meaning of genuine
redundancy” (clause 389) will be used.
Lastly in relation to unfair dismissal remedies, United Voice indicates that the remedies also need to
be sufficient such as to act as a deterrent for employers to unfairly dismiss workers. There should be
increasing penalties for an employer who breaches the Act, especially where there is a pattern of
behaviour.
It is our view, as part of this, that there should be compensation for non-economic loss suffered as
the Act does not place an employee in this position but for their unfair dismissal. In order to utilise
the unfair dismissal provisions members are often required to borrow money, cancel holidays and
personal events, and suffer immense emotional stress. The cap on the unfair dismissal remedy for
loss of wages should be removed.
Migrant Workers
In our submission to the Strategic Review of the Student Visa Program in 2011, we argued that
workers must be empowered to refuse cash in hand hours at reduced wages by providing adequate
information to them on labour rights prior to entry and an amnesty for them to report noncompliance to the Department of Immigration and Citizenship (DIAC), union or the Fair Work
Ombudsman (FWO). We have now developed this position to argue that a dedicated immigration
inspectorate is required in the Office of the Fair Work Ombudsman.
One of our biggest concerns as a union with members that include foreign workers is that they have
very little real ability to access Fair Work or other government bodies where they have been treated
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poorly at work, underpaid or other work conditions have been breached. In our meetings with the
Fair Work Ombudsman (FWO) it was made clear that FWO cannot offer any protection for
international students who speak up and lodge a complaint against their employer. Unless the
student is ready to accept the very real risk of having their visa cancelled and deported without
completing their studies there is all the incentive to remain silent.
One of the most common scenarios we see in the cleaning industry is where a contractor will push
an international student to work over their 20 hour limit or risk losing their job or hours. Once they
have done so, the contractor can use the threat of reporting students to DIAC if they do not accept
the conditions of employment the contractor sets.
There needs to be strong cross-agency cooperation, particularly in enforcement activities of
employers who facilitate breaches in visa conditions in order to undermine migrant workers
employment conditions. Government policy should recognise and address the concern that one
agency’s desire to enforce visa breaches may inhibit another agency’s ability to prosecute under
another jurisdiction. This tension means that vulnerable migrants end up bearing a disproportionate
amount of sanctions. We acknowledge and support the recommendations made in the recent
review of the Employer Sanctions Act.
With the anticipated increase in the number of foreign workers expected in Australia and the
widening of programs including Regional Migration Agreements and the Pacific Seasonal Worker
Scheme, a dedicated immigration inspectorate within the Office of the Fair Work Ombudsman is
necessary.
The role of unions and collective bargaining rights are crucial in empowering workers to make
choices and have a better work experience in Australia. To do this, unions need better access to
workplaces to allow us to work with workers who may be in breach of their visa conditions without
the threat of deportation to allow them to create the conditions needed to work legitimately.
Recommendations:
10. That there be the introduction of an immigration inspectorate into the Office of the Fair
Work Ombudsman to investigate breaches of the Fair Work Act pertaining to businesses
employing foreign workers. The immigration inspectorate should be able to operate
independently to investigate, prosecute and sanction an employer with a criminal or civil
penalty.
11. That there be ‘whistleblower’ protections for foreign workers in acknowledgement that
without such protections the power imbalance between employers and workers will
render workers silent even if the immigration inspectorate is created.
12. That there be adequate enforcement of employer breaches to promote community
confidence in the immigration inspectorate.
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13. That there be improved access for unions to workplaces to work with foreign workers to
prevent the breach of visa conditions. This would include allowing the Minister to appoint
the National Secretary (or equivalent) of a registered trade union as an inspector for the
purposes of the Act.
General Protections
It is our view that there is insufficient evidence regarding effective relief given the small number of
matters that have been taken to the Federal Magistrates Court of Australia or the Federal Court of
Australia.
What can be said is that the requirement to choose between whether an employee wishes to pursue
an unfair dismissal matter or a general protection matter relating to dismissal can act as a deterrent
for someone who may have a potential general protection claim. For example, it can often be easier
to demonstrate that an employee has an unfair dismissal matter and there is therefore less risk in
pursuing such an avenue. Similarly, an unfair dismissal matter is dealt with in a faster period of time
than a general protections matter relating to dismissal and with lower costs. It would be much better
if applications could be taken out concurrently and dealt with at the same time by either Fair Work
Australia or the Federal Magistrates Court of Australia or the Federal Court.
Recommendation:
14. That unfair dismissal and general protections applications are able to be taken out
concurrently and dealt with by the appropriate tribunal at the same time.
The other deterrent to taking out general protections claims not involving dismissal is the costs
associated with lodging a claim in the Federal Magistrates Court of Australia or the Federal Court of
Australia.
While an application concerning unfair dismissal is $66.00, the cost of lodging a general protections
matter not involving dismissal in the general claims division of the Federal Magistrates Court of
Australia is between $600.00 to $1,500.00 when listing fees are taking into account. This is
particularly problematic when the potential damages from a claim are unclear and may not cover
the cost of lodgement. This particularly discourages low paid employees who can expect a lower
amount of compensation.
Recommendation:
15. That a less costly avenue for general protections claims be considered and acted on to
ensure that vulnerable workers are able to seek relief on matters as a result of
contraventions of the general protections without an unfair financial burden to pursue the
matter.
In relation to employees being able to invoke a general protection provision to challenge their
termination, we believe this should be the case, as:
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


It is often unclear to an employee that their employer has breached a general protection as
they are not properly aware of their rights at a workplace or the real reasons for their
termination
Information can come to light during unfair dismissal proceedings that may otherwise open
the path to a general protections matter
A former employee may come across information after the 60 day period that would support
a general protection application
Recommendation:
16. That employees are able to invoke the general protection provisions to challenge their
termination without a time limit on making an application.
Sham Contracting
United Voice believes there needs to be greater restrictions on the use of contracting, as in some of
the industries in which our members work have been subjected to shame contracting. In particular,
we would like to see the Act contain a definition of what constitutes sham contracting. This would
provide better guidance for employers and employees in understanding their rights and
responsibilities. In having a definition this would enable the development of clear and consistent
indicia for prosecuting sham contracting. Currently in the case law there are a variety of tests for
sham contracting, and in the interests of consistent application that there be a clear set of indicia.
Lastly, given the focus of the Act on fairness and social inclusion we strongly recommend that where
a worker has been misclassified, then as a remedy available that the worker has the right to
conversion to ongoing employment and maintain their employment. , increased remedies for people
that are ‘misclassified’ including conversion to ongoing employment
Recommendation:
17. That the Act include a definition of sham contracting. As part of the remedies for cases
successfully prosecuted that the worker can be converted to ongoing full time or part time
employment.
Change of Contract
Employees in contracting industries need better protection upon change of contract, especially
where they have been employed long-term at a specific site. Changes of contract occur in
circumstances where employees have been working at the same workplace for many years,
performing the same role but their current employer loses the contract.
Employees who are terminated by the outgoing contractor due to loss of contract and engaged by
the incoming contractor should have similar arrangements apply to them such as apply during
transfer of employment situations for other workers. The disadvantage experienced by employees of
sub-contracting companies means that where there is a change of contract, and the employee is
engaged by the new contractor, the employee does not have the same level of protection in
preserving entitlements to redundancy, continuity of service, conditions of employment and unfair
dismissal protection.
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The notion of ‘customary turnover of labour’ needs to be codified so that it does not apply to
employees engaged by contractors on a long term basis. United Voice believes that the expression
‘ordinary and customary turnover of labour’ was never intended to refer to losses of contract. It was
intended to apply to the distinguishing between job losses caused by the job disappearing and the
usual turnover of employees resigning their employment.
Incoming contractors should recognise all the employees’ service with outgoing contractors and
waive the qualifying period, as for the employee there has been no material change to their place of
work, and the type of work being performed.
Employees of contractors should be entitled to redundancy pay from the outgoing contractor if their
service is not recognised by the incoming contractor. Industrial instruments applicable to the
outgoing contractor should apply to the incoming contractor in similar circumstances as might apply
in other employment arrangements.
Recommendation:
18. That the transmission of business provisions provide for change of contract.
Capacity to organise and be represented and heard in the workplace, industry and society
United Voice is proud of its heritage for fighting for the rights of vulnerable workers, and the
industry campaigning being undertaken to create decent jobs for lower paid workers18. In spite of
the difficulties that the previous industrial relations legislation caused in workers organising their
workplaces and industries, United Voice believes that there needs to further changes to current
legislation to ensure that vulnerable workers can confidently utilise their workplace rights.
Union Rights and Representation
We have found that there are improved working relationships in workplaces where there enterprise
agreements contain clauses on union activities and delegates’ rights. There is a reduction of
workplace disputes as matters can be resolved easily and with the assistance of Union Voice
representatives and that the processes of the enterprise agreement are followed with the principles
of natural justice and due process in mind. Further there is a positive impact on employees’
representative capacity in the workplace, with workers more confident about speaking out about
health and safety, and other workplace issues, and improving workplace processes.
United Voice has had difficulties in providing representation to members due to some employers
indicating that we can only act as a support person. This confusion is further exacerbated by the
term ‘support person’ in clause 387 (d) of the unfair dismissal provisions. We believe that this can be
cleared up through specifying that the term ‘representative’ includes an agent of a registered
18
Our industry campaigns include: Big Steps in Early Childhood Education and Care; Fair Share for Aged Care;
and, Clean Start for our cleaning members
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organisation of employees in the model dispute resolution procedures and/or dictionary, and
including the term ‘representative’ in that sentence.
Recommendation:
19. That the model dispute resolution procedures and/or dictionary contain a definition for
‘representative’ that reflects the right of an employee to be represented by a registered
organisation of employees. And that clause 387 (d) includes the term ‘representative’.
Right of Entry
The linking of the right of a union to represent the industrial interests of an employee rather than
coverage by type of instrument is a positive improvement. We have found that right of entry to
investigate a contravention of an award or enterprise agreement is necessary especially in
workplaces that are not well organised.
United Voice believes that the right of entry provisions do not correctly balance the right of unions
to enter workplaces and the right of employers. In particular, the provisions regarding the conduct
of interviews in a particular room are heavily weighted in favour of employers. Employers have the
ability to choose a room that is often designed to intimidate employees or to discourage them from
speaking to the Union. In particular where our members’ workplace is in public (e.g. shopping
centre), the allocated space to meet with members on site is often a crib room or similar room
where managers and workers congregate. Unfortunately, proving such matters to Fair Work
Australia is difficult and often the same employees that are intimidated from speaking to the Union
are also unwilling to give evidence at any hearing conducted by Fair Work Australia.
Further, the right of entry provisions lack in their ability to allow a Union to enter a premises to
investigate a suspected contravention of an Award or enterprise agreement for a former employee.
We have been approached by former employees to investigate underpayments however because of
the wording of the Act we are unable to obtain time and wages records from the employer without
an order from the appropriate tribunal. What this means is that we have to lodge an underpayment
based on an estimate of what we believe the underpayment to be, even if this amount could be
completely incorrect when tested against the actual time and wages records.
Further, we have also had issues with the requirement that the employee ‘perform work on the
premises’ when the company is a particularly large company or the employee does not perform
work at one site. Often, time and wage records are kept not at the premises where work is
performed but at a central office. There needs to be the ability to access these records.
Union Delegates
The Act should also recognise the role of delegates and provide appropriate rights and protections,
including the capacity for workplace delegates to undertake union work during work-time.
Recommendation:
20. That the Act recognises the role of delegates in the workplace.
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Bargaining representatives
The ability for employees to nominate bargaining representatives is not necessarily acted upon in
the spirit in which it was intended. It is not uncommon for us to find ourselves with a senior manager
ostensibly bargaining for workers, despite the regulation that representatives must be “free from
control by the employee’s employer or another bargaining representative; and free from improper
influence from the employee’s employer or another bargaining representative”. Whilst this situation
can be addressed via an order it is a complicating factor in bargaining and costly in terms of
resources.
Right to representation at work, the industry and the economy
As we have explained earlier, our members work in what is notionally called the secondary segment
of the labour market, and are vulnerable. The capacity for employee representation, to organise and
exercise workplace rights is difficult, especially given the conditions that exist in this notional
segment of the labour market. The Act’s objects are specific in promoting economic prosperity and
social inclusion, however there are difficulties for these to be realised in United Voice member’s
workplaces. The industry campaigns we mount to ensure that decent jobs exist in all sectors and
industries of the economy are challenging given structural difficulties of sub-contracting,
government funded services, and small workplaces. In order to address the issues of fairness, social
inclusion and economic prosperity for vulnerable workers, United Voice advocates facilitated
collective bargaining for vulnerable workers.
United Voice reiterates its initial recommendation for the development and implementation of a
suite of rights for vulnerable workers to facilitate collective bargaining.
Capacity to Bargain and share in the economic and social prosperity of Australia
Arising out of the capacity for workers to organise their workplace, is the capacity to bargain and to
share in the wealth that has been created by their own labour. Untied Voice advocates for
mechanisms that will increase the share of the wealth that our members receive for the important
work that is performed. This addresses the issues of economic prosperity and social inclusion that
the Act specifies are its key objects.
International Obligations and Collective Bargaining
United Voice reaffirms the International Labour Organisation (ILO) Conventions 87 and 98, especially
in relation to the rights of workers to join unions, organise their workplaces (however defined), and
to bargain collectively for better wages and conditions. These conventions recognise the inherent
imbalance of bargaining power that generally exists between employers and employees. The Act
refers in its objects to Australia’s international labour obligations specifically, but does not name
particular ILO conventions. However by prioritising and emphasising enterprise bargaining as the
preferred method of collective bargaining the Act limits the capacity of workers to exercise their
freedom of association and right to organise and bargain to improve employment conditions.
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The Conventions do not specify enterprise bargaining as the best form of collective bargaining; thus
the Act gives an unnecessary limitation for employees and employers to determine at what level
collective bargaining occurs. Enterprise bargaining is but a species of collective bargaining. There is
no basis for limiting collective bargaining rights to enterprises. The right to bargain collectively is a
human right and employees must have the right to choose how the right should be exercised.
Enterprise Bargaining and Vulnerable Workers
The safety net as outlined in the Act is important. However the operation of the safety net acts in
such a way as to restrict improvements in wages and conditions at work for those in the notional
secondary segment of the labour market above the award. Employers in contracting industries are
particularly reluctant to bargain for an enterprise agreement due to concerns of increases in costs,
thereby creating a class of workers who are stuck on the modern award.
For example a major cleaning firm sent this notice out to United Voice members about bargaining
and why there were not willing to engage with enterprise bargaining:
“[X] believes in fair treatment, pay and conditions for all our staff. X supports the Modern Award,
part of the Government’s recent industrial relations changes, as it is the fairest way to make sure all
cleaners receive regular pay increases, shift rates, weekend and public holiday rates, casual
allowances and improved superannuation. The Modern Award is adjusted every July with wage
increases mandated by the Australian Government [sic]”19.
The Act’s focus on the “enterprise” is misguided, especially in the industries and sectors that United
Voice members work. The focus on the enterprise has an implicit assumption that the economic
decision makers of the firm/company and United Voice members are present at and are part of
negotiations that determine wages and conditions for employees. In the sectors and industries in
which United Voice members work, this situation is not representative of our members’ experience.
Instead in some sectors, the services our members provide have already had a price given to their
work, without a presence around the bargaining table. In industries in which United Voice members’
work, the enterprise that employs a person does not necessarily have the full discretion to
determine wages and conditions because other bodies, 3rd parties, effectively determine what the
employer can pay to employees. This is the case in industries and sectors like cleaning, security, aged
care, and early childhood education and care.
In correspondence between a major cleaning contractor and United Voice, the contractor wrote:
“Further considerations and discussions relating to the Retail Clean Start proposal cannot proceed
without the support of the Retail Owners at this time.”
In undertaking enterprise bargaining United Voice is unable to bargain, or bring to the table 3rd
parties who make and affect decisions that impact on our members’ wages and conditions.
The focus on the enterprise fails to recognise the complicated nature of corporate arrangements and
the networked diffusion of power and influence that exist in this situation. The focus on enterprise
19
Notice to staff from a major cleaning contractor; the employer indicated that it was the Australian
Government and not FWA that sets the minimum wage.
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bargaining to determine wages and conditions above the award safety net means that bargains at
the enterprise level do not increase by much the wages and conditions that already exist in the
awards, if they do at all.
For example, in one Aged Care enterprise agreement20 the wage rates specified are:
“5.5 WAGE RATES
5.5.1 Wage rates under this Agreement will be in line with minimum rates of pay provided under the
relevant Awards.
5.5.2 National Wage Increases will be applied from the first full pay period on or after 1 July each
year of this Agreement.
5.5.3 No further wage increases will be sought before the date prescribed in clause 2.3.
5.5.4 There will be no wages paid below the minimum wage amounts as determined by any relevant
modern award.”
Further in the cleaning sector, major employers have been adamant in their representations against
enterprise bargaining, indicating that enterprise bargaining creates an unfair contracting situation
between themselves and other cleaning operators. The award is the preferred instrument for the
determination of wages and conditions by these cleaning employers, as it provides a wages floor
that all contractors are required to adhere. Given United Voice’s industry campaign to provide
decent jobs in the cleaning industry, enterprise bargaining is currently the only collective bargaining
mechanism through which we are able to work with our members to improve their wages and
conditions.
For example, in one notice to staff:
“[X] pays cleaning employees under the Cleaning Service Modern Award and we believe this is the
only level playing field in the Australian Cleaning industry.
We do not support Clean Start Retail because there is a real danger it will give unethical operators
more opportunities to undercut responsible organisations [emphasis in original]. Ultimately it’s
cleaners who would be disadvantaged.”21
These notices highlight another aspect of wages and conditions determination under a system that
mandates enterprise bargaining for employers and employees, regardless of the situation in an
industry/sector. The reluctance to enterprise bargain by employers indicates that they want to take
wages out of the equation for tenders; with modern award wages becoming a floor and a price
signal for the firm/enterprise wanting to tender for particular contracts. Thus the issue of how to
construct fairness comes to the fore, especially in the economic situation where workers bear a
disproportionate impact of economic decisions that are not made in consultation or with them.
Further, there are statements from employers that indicate that they are not willing to consider an
alternative to the modern award. We make the Panel aware of the Code of Conduct for Fair Service
Provision in Shopping Centres, and append it to this submission. In particular we draw the Panel’s
20
21
United Voice is not a party to this award
Notice to staff from a major cleaning contractor
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attention to clauses 2 and 8. The Shopping Centre Council of Australia recognises the right to
organise, however in supporting award rates of pay only, they are explicitly rejecting bargaining to
improve the wages and conditions above the modern award. Therefore, they are restricting the
capacity of workers to bargain collectively to improve their wages and conditions.
Thus the modern award is by default being used as an enterprise agreement, to determine the local
conditions of wages and employment. However unlike enterprise agreements wage increases do not
increase more than the safety net adjustments, any increases in productivity do not increase wages,
and conditions of employment are uniform regardless of location or specificities of the site. Given
the limitations on content in modern award, employees are unable to enjoy improvements and
other conditions of employment in addition to the legislated safety net of the NES and modern
award.
In this way the Act, specifically its favouring of enterprise level agreements, does not enable
employees to bargain with those that make decisions that control their working lives. United Voice
recommends that the Act accommodate the situation of the industries and sectors in which our
members’ work through the introduction of Industry Councils for particular industries that are low
paid and have not traditionally engaged in enterprise bargaining. An Industry Council would be a
body that includes employers/employer associations, union representatives, where applicable 3rd
party decision makers, member/s of FWA. The introduction of Industry Council fits within the objects
of the Act, and provides a mechanism for a different type of bargaining in industries/sectors
especially where enterprise bargaining is negligible and does not provide pay rises much above the
minimum in the award or safety net.
In terms of FWA and the development and implementation of Industry Councils:
 FWA would encourage and facilitate the establishment and effective operation of industry
councils for particular industries
 Participants discuss employment conditions and wages, development of measures to
improve efficiency and competitiveness, and address barriers to workplace reform
 Member of FWA may be involved in the running of the meetings
 The Industry Councils would have the ability to amend Modern Awards matters that go
beyond current limitations in content for Modern Awards. These matters can be discussed
and put to FWA outside of the current timeframe of 4 years. Decisions can be made in the
public interest by FWA.
The Industry Councils would also support a mechanism for facilitated collective bargaining for
vulnerable workers.
Recommendation:
21. That FWA develop and implement Industry Councils in specific industries and sectors
where there is a history of low pay and low engagement in enterprise bargaining. That the
Industry Councils be organised as per the details above.
The reason we raise this is due to our application for a low paid bargaining stream in aged care.
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Low Paid Bargaining Stream (LPBS) in Aged Care
United Voice utilised the low-paid bargaining provisions (Part 2-4, Division 10, s241 – 246 of the Act)
in aged care in 2011.
United Voice sought to allow low paid aged care employees the option to bargain on an industry
level with the major funder, the Federal Government, and their employers. In making its
determination, Fair Work Australia found that aged employees were low paid, even when an
enterprise agreement had been negotiated in the workplace.
But the Full Bench excluded from its Low Paid Authorisation a significant number of employers
because their enterprise had an operating enterprise agreement.
Section 241 of the FW Act sets out the Objects of the Low Paid Division:
The objects of this division are:
(a) to assist and encourage low-paid employees and their employer, who have not historically had
the benefits of collective bargaining, to make an enterprise agreement that meets their needs, and
(b) to assist low-paid employees and their employers to identify improvement to productivity and
service delivery through bargaining for an enterprise agreement that covers 2 or more employers,
while taking into account the specific needs of individual enterprises, and
(c) to address constraints on the ability of low-paid employees and their employer to bargain at the
enterprise level, including constraints relating to a lack of skills, resources, bargaining strength or
previous bargaining experience, and
(d) to enable FWA to provide assistance to low-paid employees and their employer to facilitate
bargaining for enterprise agreements. [emphasis added]
Our concern with the Full Bench application of the low paid provision of the Act is that the effect was
to exclude from the bargaining stream a significant part of the industry. Many aged care enterprises
are indeed covered by existing enterprise agreement, but an objective analysis of their content fails
to establish that employees have received any "benefits" from the enterprise bargaining process.
That is to say, their "previous bargaining experience" has produced meagre results.
In many of the enterprises excluded, existing enterprise agreement wage rates were in fact at or only
slightly above the Modern Award rate. There are no discernible "benefits" from enterprise bargaining
in these enterprises.
The result is that the bargaining group now subject to the low paid authorisation is not
representative of the industry, and is in fact a rump. The relevant employers are substantially reliant
on Commonwealth Government funding in determining wage rates for employee.
This small group has to date been reluctant to consider pace-setting action - desperately needed to
sustain decent employment in the aged care industry - in circumstances where the majority of the
industry (including a majority of their competitors) are shielded from the low paid bargaining stream.
United Voice’s members working in Aged Care have regularly stated that while they love the
important work that they do, their wage rates make it increasingly difficult to maintain their
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employment in Aged Care. As the costs of living rise, safety net adjustments do not enable them to
keep up with living expenses.
As part of the solution, United Voice refers the Review Panel to our submissions concerning the
creation of Industry Councils to facilitate industry rather than enterprise solutions to the low paid
crisis in industries (such as aged care) that are constrained in wages policy by third party influence
and/or control.
Issues in Enterprise Bargaining
Agreement content
The loosening of restrictions on agreement content is welcome but needs to go further. In particular,
we do not believe that there should be any restrictions on agreement reached between an employer
and a union regarding a union’s rights to access a worksite, rosters, staff lists and employee
inductions. Further, even with the loosening of restrictions, many employers are fearful of putting
any provisions regarding union rights in agreements despite our assurances that the clauses are in
accordance with the Act.
Industrial Action
United Voice believes that taking protected action is a legitimate means of pressuring an employer
to bargain. The process to apply for protected industrial action is simpler than the process under the
Workplace Relations Act 1996 after the WorkChoices amendments, however the process could be
simpler and easier to navigate.
The ballot process is lengthy, especially when a postal ballot is used. In the case of our members, a
postal ballot is problematic as our members: can be part of a transient workforce, English is not
necessarily a first language, and first name/surname that the employer has can differ from the
name/s in our membership records. Often it would be easier to conduct ballots on-site where these
issues are able to be better overcome.
Further exacerbating the lengthy process for taking protected industrial action is that between the
lodging of the application to taking the action, is 6-8 weeks has generally passed. Any leverage that
workers may have been able to use to balance the power differentials in bargaining by withdrawing
their labour is lost.
In terms of the questions that can be put to ballot, we do not agree with limits on the types of
actions that can be taken. Further the process can be fraught by issues on the wording of ballot
questions. It would be simpler if FWA could allow a union to make an undertaking or amend the
application, so long as the substantive nature of the questions is not changed.
Once a ballot has been declared in favour of protected industrial action, the requirement to take
action within 30 days of the ballot limits unfairly the type of pressure workers can apply to the
employer. It is the view of United Voice, that there be no specific time period in which to take
action, and that all forms of protected industrial action remain ‘live’ until an agreement is reached or
unless otherwise determined.
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In terms of the types of action that workers can engage, we have found that the application of the
docking of pay for undertaking industrial action is not consistent. In particular we refer to the
inconsistency between clauses 471 (4), 471 (5), and the taking of bans as our members have been
docked for a full days’ pay despite taking a 1 hour ban.
Recommendations:
22. That clause 471 (5) in defining the industrial action period apply to, in each instance, the
total duration of industrial action within that day.
23. That there be no time limit in which to take protected industrial action after a ballot has
been declared in favour of taking specific forms of industrial action.
United Voice views the notice requirements to take protected industrial action unfairly biased
towards the employer. There is no equity in notice periods, with unions having to give 3 clear days,
and the employer not subject to any notice period.
Recommendation:
24. That the obligations to give notice of taking protected industrial action be the same for
employees and employers.
Lastly we have found that the ability to take industrial action in pursuit of bargaining has been
affected by a lack of understanding by the employer around processes of employer response action
and their communications with employees. United Voice has found that the notices that employers
use do not necessarily meet the requirements of the Act, and effectively deter employees from
taking protected industrial action to support their bargaining claims.
Given the 30 days requirement to take any of the agreed forms of industrial action and the pursuit of
the breach by the employer concurrently, there is no fast mechanism in which to seek conciliation
through FWA to clarify the situation and/or seek orders.
FWA’s dispute settling powers
We would like to see FWA’s dispute settling powers broadened. Compulsory conciliation should be
available to assist parties to resolve disputes regarding industrial matters.
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Conclusion
United Voice understands that the Act, through its objects, has tried to:
1. Provide a more level playing field for employees to bargain with their employers, and
undertaking this bargaining with an established set of base employment standards that
cannot be undercut;
2. Through collective organisation ensure that there is greater joint determination of
employment conditions between employers and employees;
3. Reducing employment insecurity; and,
4. Provide an avenue for workers to share in increased prosperity.
The reality however for many United Voice members is that too many operational and technical
obstacles frustrate their capacity to organise and bargain effectively. We reiterate our initial
recommendation for the investigation, development, and implementation of a suite of rights for
vulnerable workers, to ensure that the objects of social inclusion and economic prosperity can be
better shared by all workers in Australia, regardless of the industry/sector, and occupation in which
a worker is engaged.
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Appendix 1: Shopping Centre Council of Australia Code of Conduct
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