Victorian Trades Hall Council
Email: bhalfpenny@vthc.org.au
DRAFT WORKING PAPER:
INTRODUCTION
People need safe, secure and sufficient work so they can be fully valued and
included in society. The type of society in which we live is in many ways
reflected by the workplace rights we have.
For example, oppressive and violent regimes outlaw trade unions and deny
working people the basic rights to organise. Workers in such societies
endure unsafe workplaces and poverty wages and conditions with very
few human rights at all. In such societies many union leaders have been
murdered and ‘disappeared’ such as in the Philippines and Colombia, to
discourage worker organisation and the acceptance of poor working
conditions and wages.
(http://survey08.ituc-csi.org/survey.php?&mode=pr&IDCont=0&Lang=EN )
The marketplace is driven by the desire for profit. Unfortunately some
will value profit more than the need to provide for the dignity of others
in the workplace to be respected. As noted by the Uniting Church,
“internationally recognised human rights are not possible without all
that is necessary for a decent life, including the rights to work with just
pay and conditions” (Uniting Church in Australia, 2001).
This is why the work environment must be ordered in such a way
that protects people’s true value and rights as set out in international
human rightsinstruments, such as International Labor Organisation
conventions, and domestic laws that promote human wellbeing in the
workplace.
The right for workers to organise and act collectively is recognised as
a universal human right under articles 21 and 23 of the Universal
Declaration of Human Rights and is necessary to ensure a safe workplace,
decent pay and conditions and dignity at work. This right has been
seriously undermined in recent years in Australia through several waves
of regressive industrial law reform including the introduction of the Work
Choices legislation by the previous Commonwealth Government leading to
lower standards of employment and unfair treatment of working people.
Work Choices eroded collective bargaining rights and weakened minimum
employment standards for all workers. The most vulnerable in our society
were affected most. The initial steps of the Rudd Government to undo the
worst excesses of Work Choices by introducing new legislated minimum
standards that underpin good faith bargaining and support collective
agreement making are welcomed by community groups and unions in
Victoria. However, many workers in Victoria continue to have
employment conditions shaped by the regressive industrial law
introduced by the previous Government including Work Choices
legislation. This will be on going because a number of aspects of work
choices has been retained in the new legislation However the overall
impact of the new Federal Legislation is yet to be seen. The Victorian
Government has a key role in advising and supporting the federal changes
and monitoring and evaluating the impact of changes on Victorian workers.
A vital role of the Victorian Government is protecting the employment
rights of vulnerable workers, particularly child workers (aged under 18)
for whom they hold primary responsibility.
STATE GOVERNMENT VISION
The Victorian Labor Government has promised to “Protect work rights,
family time and workplace safety” (Bracks & Australian Labor Party, 2006).
Its 2006 election policy pledged support for “a balanced co operative approach
to industrial relations that considers the views of business, workers and their
unions, recognising the central role of unions to represent working people”.
The Government recognises that every worker has the right to a fair safety
net of wages and conditions, a safe and healthy working environment free of
discrimination, and a strong independent umpire providing for conciliation
and where necessary arbitration (Bracks & Australian Labor Party, 2006).
SUCCESSES
The Victorian Labor Government has succeeded in introducing legislation
to support workplace rights. For example the Victorian Workers Wages
Protection Act 2007 which ensures that employees are paid in cash, rather
than ‘in kind.’ This will make unlawful employer practices negatively
impacting on vulnerable workers including children (aged under 18), and
Visa 457 workers Also, the Outworkers (Improved Protection) (Amendment)
2005, which ensures that outworkers receive the minimum entitlements
contained in any relevant federal awards, has been lauded by those
concerned with the vulnerable position of these workers.
In the area of Workplace health, safety and compensation, the Victorian
Labor Government has made a number of improvements including:
The Asbestos Diseases Compensation Act 2008 which allows for the
awarding of provisional damages to persons suffering from asbestos
related diseases and does not prevent subsequent damages being paid
if further asbestos related conditions arise and provides financial
compensation to the families of workers who die of industrial diseases
and conditions.
The Occupational Health and Safety (Employee Protection) Bill 2008
which will strengthen protection for workers who seek to improve health
and safety at work against discrimination and victimisation, and protect
OHS whistleblowers.
Other key workplace legislation introduced to date by the Victorian Labor
Government includes:
The Equal Opportunity (Family Responsibilities) Act of 2008 which
expands the range of what constitutes discrimination against parents or
carers in employment. Under this amendment an employer must
accommodate, and cannot unreasonably refuse to accommodate, the needs
of their employees with caring responsibilities.
Other constructive policy directions by the Victorian Labor Government includes:
Review of the Voluntary Home Workers Code of Practice and
commitment to replace the voluntary code with a new mandatory code
of practice.
· Commitment to protecting the rights of child workers.
· Commitment to reducing the gender pay gap in Victoria.
· Commitment to improving Victorian workers’ work and family
balance through the Working Families Program.
· Resourced disputes panels to provide for an independent umpire to
resolve disputes.
· Initiating the review of labour hire practices.
· Continued research programs throughout 2007 and 2008 with vital
workplace research and information being collected and analysed including:
The Victorian Workplace Industrial Relations Survey
Reports such as Lowering the Standards and The Impact of WorkChoices on Australian Working families.
These research projects have provided strong evidence to drive workplace policy in Victoria and such reliable forms of data are essential for future identification of policy needs.
ISSUES OF CONCERN
While progress has been made, there are a number of workplace issues
action is needed to realise key goals. The Victorian Government continues
to have responsibility for monitoring and evaluating the impact of changing
workplace legislation on Victorian workers and for education of employers
and employees, and compliance and enforcement of workplace laws. These
activities will be significantly diminished by the abolition of the Office of the
Workplace Relations Advocate (OWRA).
While the Rudd Government’s Fair Work 2008 legislation provides basic
standards for workers, there is significant evidence that non-compliance
with workplace laws continues, especially for vulnerable employees such as
casual workers and children and young people. The Victorian Government
must continue to provide a mechanism for the investigation of unfair work
practices.
The OWRA also provided valuable information on the impact of workplace
change on Victorian workers. The Victorian Government continues to have
a role in advising the federal government on key issues in workplace relations.
General evaluation and specific inquiries must be continued. For example,
the impact of the introduction of new mandatory ‘flexibility clauses’ in Awards
and Agreements should be monitored by the Victorian Government.
The 2006 Victorian ALP platform “Rising to the Challenges” committed
the Victorian Government and the Workplace Rights Advocate to initiate
an inquiry into job security. It is crucial that monitoring, evaluation and
research functions continue into the future to enable the Victorian
Government to provide effective input to future federal changes.
Job security is a crucial issue for ensuring decent work for all Victorians.
Yet the employment trends continue with increasing numbers of workers
forced to accept less secure, low wage precarious types of employment.
Almost one in four Australian workers are employed on a casual basis
(Bamberry, Campbell & Charlesworth, 2008) and do not have access to
the basic entitlements that permanent workers take for granted.
Increasingly employees are being forced to adopt the status of contractor
(often dependent on one principal contractor). These alarming trends has
adverse implications for all workers regardless of employment status.
The Victorian Government must lobby the Commonwealth to accede to
the International Labour Organisation(ILO) Convention 175 on Part-
Time Work and ensure provisions restricting casual and contract employment
can be included in collective agreements. The new Federal industrial
legislation has retained workchoices provisions prohibiting such restrictions.
The ILO convention provides for parity between part-time and comparable
full-time employees in occupational health and safety; discrimination;
freedom of association; pay; social security; parental rights; redundancy;
annual leave and public holidays; and sick leave. Specific provisions for the
safe conversion of employees from part-time to full-time work are addressed
by this Convention. Accession to the Convention will help provide casual
workers with access to decent work.
The Rudd Government’s Fair Work 2008 legislation continues to delegate
responsibility for laws relating to Child employment to the States. Children
and young people continue to be amongst the states most vulnerable workers
and are liable to exploitation in the workplace. Evidence shows high levels of
non-compliance with award and agreement entitlements for young workers
(Job Watch, 2004). Similarly, submissions to the Child Employment Principals
Case 2007 in NSW have identified disturbing trends.such as unpaid training
hours for young people and irregular working hours late at night and early in
the morning that have detrimental effects on education and are not adequately
compensated. Serious problems with Occupational Health & Safety were
identified, including high rates (and non-reporting) of accidents concerning
young people. There is a high incidence of harassment and bullying of children
/young people in employment. Given these disturbing trends young workers
require greater legislative protection in Victoria.
Victorian legislation does not provide adequate protection for children;
particularly for those aged 15-17. A strong set of universal standards in
should refer to key categories such as:
unpaid training;
higher pay for weekend and late night work;
advanced notice of rosters;
casualisation;
occupational health and safety (including sexual and other harassment and
bullying);
underpayment; and,
provision of meal breaks.
It is also important to provide the resources to ensure vulnerable
inexperienced young workers have access to information about their
legislative rights and to have easy access to support and assistance on
workplace rights. Functions formerly undertaken by the Office of the
Workplace Rights Advocate including education and the enforcement of
workplace rights for vulnerable young workers must be continued and
further developed in some form. The provision of training to young
people in the secondary and Vocational, Education and Training sectors
in this area is also vital to ensure each generation of new workers
understand basic work and safety standards, as well as the benefits of
freedom of association.
Homeworkers (or outworkers) are a further group of vulnerable workers
who require strong legislation and support. Research undertaken by the
Brotherhood of St Laurence (Diviney and Lillywhite, 2007) suggests that
the working conditions of Australian homeworkers needs to be urgently
addressed. This research made the following observations after interviewing
homeworkers.
One group said they were paid $2.50 for a detailed shirt which took one
hour to sew. Another group said they were paid between $2 and $3 an hour.
When asked about hours worked, most indicated that they often went weeks
without a job but when the work was available they worked long hours.
There is still some important work to be done with regard to developing a
national policy for homeworkers in Australia. The Victorian Government
must continue to support the Commonwealth Government to accede to the
ILO – C177 Home Work Convention. The Convention requires accurate
statistics on the number of homeworkers (there are wildly different estimates
in this area) and the coordination of a nationally coordinated policy, across
all jurisdictions, to address the needs of homeworkers. The proposed
Mandatory Code of Practice for Victorian homeworkers (Hulls, 2005)
must be consistent with national and international standards for these
workers.
An issue of community concern is the continuing existence of Australian
Building Industry Improvement Act (ABII Act), the Building Industry
‘Code of Compliance and the powers granted to the Australian Building
and Construction Commission. These laws and regulations provide
additional and excessive restrictions and penalties on building workers
and their unions. They are not in accordance with universally accepted
principles of freedom of association and the international Conventions
to which Australia is signatory.
This legislative regime was created to ‘criminalise’ union-related activity
on construction sites, intimidate and harass building workers and
interfere in the internal workings of the unions. The ILO has condemned
these laws several times and lobbied the Commonwealth Government to
abolish the ABCC. The Victorian Government must continue the pressure
on the Commonwealth Government to remove the ABCC and legislation
that threatens workers rights to freedom of association.
As noted in the previous section, progress has been made in terms of
workplace health and safety. However there is more to do to ensure th
e safety of Victorian workers and deliver on Government commitments
through Government legislation, regulation and most critically enforcement
by the regulatory body. The Government commissioned Mr Bob Stensholt
MP to chair an administrative review of the OHS Act 2004 which has a
identified a number of areas of the Act that need improvement.
(http://www.worksafe.vic.gov.au/wps/wcm/resources/file/eb846c40a5309
2d/Finalreport_141207.pdf).
The report was presented to the Minister responsible in December 2007
and the Government responded to the report on 17 June 2008
http://www.worksafe.vic.gov.au/wps/wcm/connect/WorkSafe/Home/
Forms+and+Publications/Educational+Material/Governments+Response+to+
the+2004+OHS+Act+Review.
To date the regulatory body WorkSafe has not implemented the
recommendations and therefore the Government must monitor
WorkSafe’s implementation of the relevant recommendations to
ensure they are introduced.
The Victorian Government should positively address the insufficient
penalties for employers who, through gross negligence, fail to provide
a safe workplace that result in deaths and serious injury at work.
There is also a lack of support for worker organisation representatives
in the system, which has resulted in failure to establish appropriate
tripartite advisory bodies on OH&S in breach of the Government’s
commitment to Article 4 of ILO Convention 144 on Occupational Health
and Safety[1]. Union representatives continue to experience a high
degree of difficulty in entering workplaces for health and safety purposes
and acting on safety issues in the current legislative environment.
Unions should be permitted to act for individuals to prosecute non-
compliant employers, as the current system places an unfair burden
on individual workers whose ongoing employment may depend on the
employer to be prosecuted. The Victorian Government must work with
the Federal Government to improve legislative outcomes in this area.
The Hanks review of Victorian Workers Compensation has not fully dealt
with the Governments commitment to improve compensation and s
ervice to injured workers. Community Groups and Unions support the
recommendations of the Victorian Trades Hall Council to the Hanks
Review (VTHC submission attached) The Victorian Government must
continue to protect the wages and conditions of Victorian public sector
workers. Workers who have employment provisions that are better
than the National Employment Standards or other legislative provision
must be protected. The Victorian Government must negotiate a
satisfactory outcome with public sector unions about the implications
of new federal legislation.
In Victoria, many organisations providing community services are
dependent on State Government funding. Successive State Governments
have sought to encourage increased efficiency in community service
organisations by limiting funding increases compared to the cost of living
(CPI). Such pressure can undermine the quality and extent of services
provided as can impact on the wages (in real terms), health and
conditions of community workers.
Community organisations and unions are concerned at the capacity of the
community sector to provide and maintain current levels and quality of
service as well as fair and reasonable salary and conditions for community
sector staff. There is already a discrepancy in wage rates for similar work
undertaken in community service organisations and in the public sector.
Community organisations and unions support the Australian Service Unions
campaign ‘Respect the Workers Sustain the Services’ which calls for higher
funding levels to provide decent increases in wages and conditions to
community sector workers while maintaining services. See ASU funding
submission.
The Victorian Government and associated entities are major purchasers of
goods and services provided by a wide range of companies and organisations
in the State. Contract specifications should ensure inclusion of standard
clauses that promote secure employment and decent remuneration and
conditions consistent basic ethical principles and human rights standards
relating to work justice.
The Victorian Government has adopted an Ethical Purchasing Policy –
Mandatory Safety Net for Nominated Sectors where companies and
organisations will have to comply with a safety net of fair employment
standards. The policy requires that suppliers of goods or services to
Victorian Government Entities in nominated vulnerable sectors
(currently security services, catering, cleaning services and the textiles,
clothing and footwear industries) provide their on-shore employees with
terms and conditions of employment which are no less favourable than
those provided prior to the introduction of Work Choices. This policy must
be extended to community organisations funded by three-year agreements,
including child, youth, aged care and disabled care services. This commitment
must be matched with adequate funds for services commissioned by the
Victorian Government otherwise diminution of service delivery will occur at
Government funded agencies due to lowering staff levels and accompanying
reductions in scope of activity.
A similar policy must be developed to extend to all organsations that supply
goods and services to State Government. This issue will be dealt with more
fully under a different seminar paper on the topic of “Government
procurement and manufacturing policy[hlt1] ”. However to genuinely support
workplace rights the State Government must ensure that the organisations
that provide it with goods and services or enter into public private partnerships
have good workplace rights records including union collective agreements.
RECOMMENDATIONS 2008/09
The Victorian Government should implement and support the following
proposals. It should use its direct powers to:
1. Ensure adequate State infrastructure is provided to protect workplace rights.
Infrastructure that was removed under Work Choices and has not been restored
in full in the Fair Work Bill 2008 must be provided at the state level, including
the continuation and expansion of the functions of:
a. the disputes panels to provide private conciliation and arbitration.
b. the Office of Workplace Rights and workplace advocate.
2. Enact further legislation to protect children and young people in
employment up to 17 years old, providing universal standards of employment
based on United Nations conventions and additional resources to investigate
and enforce such standards. Retain the functions of the Office of the Workplace
Rights Advocate and provide legislative powers to perform these functions.
3. Incorporate workplace rights training and education of young workers
into mainstream school curriculum.
4. Monitor the effects of “flexibility clauses” in awards and agreements
and other workplace legislative changes in Victorian workplaces.
5. Improve Workers Compensation and support for people sustaining
work related injury and illness by implementing the VTHC recommendations
to the Hanks Review of Workers compensation legislation.
6. Ensure the Victorian workplace health and safety regulator (VWA)
acts to protect employees who raise OHS issues in accordance with Occupational
Health and Safety (Employee Protection) Bill 2008
7. Protect the entitlements of those workers on Victorian common rule
awards that are better than proposed National standards;
8. Re-introduce Industrial Manslaughter legislation to ensure that
workplace deaths or injury caused by gross negligence is dealt with under the
Crimes Act.
9. Implement Government’s commitment to initiate an inquiry into
casual and other types of precarious employment to be completed no later
than September 2009. Results of this inquiry to be used to formulate legislation
to protect the most vulnerable workers and lobby the Federal Labor
Government to amend Fair Work 2008 to provide for regulation of such types
of employment.
10. Implement a mandatory retailer’s code of practice for the textile,
clothing and footwear industry, with resources for enforcement of the code;
11. Work with public sector unions and workers to provide and fund standards
on pay equity and family friendly policies.
12. Negotiate fairly with Public and community sector unions and the
workers they represent for fair wage outcomes including retrospective payments
where departments have delayed negotiations and encouraging community
sector agencies to pass on any increases achieved through the 2009 – 2012
funding indexation agreement.
13. When purchasing goods and services, the State should ensure that
contract specifications ensure inclusion of standard clauses that promote
secure employment and decent remuneration and conditions consistent
basic ethical principles and human rights standards relating to work justice.
State funded community-sector service providers must be funded and
contracted in such a way to ensure full parity between the pay and conditions
of public servants and those employed in the community. The Ethical
Purchasing Policy – Mandatory Safety Net for Nominated Sectors should
be reviewed and expanded to all suppliers of goods or services to Victorian
Government so that on-shore employees enjoy terms and conditions of
employment which are no less favourable than those of a Victorian public
servant. Develop appropriate accountability mechanisms to ensure clauses
are properly implemented
14. Reconvene Gender Pay Equity Working Party to review the
implementation of its recommendations.
15. Implement all recommendations from the Privacy at Work final
report conducted by the Victorian Law Reform Commission.
The State Government should actively lobby and negotiate with the
Federal Government to:
16.Regulate casual, contract and other forms of precarious employment
to ensure secure employment categories are given preference under law and
workplace agreements can include prohibitions on precarious employment
types. Precarious employment includes casual, fixed term. Labour hire, S457
Visa’s etc. (Commonwealth Government should accede to the International
Labour Organisation Convention 175 on Part-Time Work).
17. Build on Victoria’s commitment to vulnerable homeworkers
(outworkers) by advocating a national approach across all Australian
jurisdictions. (Commonwealth Government should accede to the International
Labour Organisation – C177 Home Work Convention).
18. Abolish youth-based wages (so that wages are solely linked to
experience and skills) and the improvement of apprenticeship/trainee rates,
which is a significant reason for many young people not choosing a vocational
pathway.
19. Continue legislative reform of industrial relations over and above the
Fair Work Bill to return all workplace rights taken by the previous
Commonwealth Government as follows:-
- Monitor the impact of Fair Work Bill and the mandatory flexibility
clauses and review legislation if it has adverse effects on workers’ rights
at work;
- Immediately abolish the Australian Building and Construction
Commission and repeal the Australian Building Industry Improvement Act;
- Bargaining – prevent ‘sham’ agreements through good faith bargaining
between genuine parties across any matter. Bargaining claims should be
independent of protected action. Multi employer bargaining must include a
definition of entity, based on ‘effective control’ and provisions to have access
to funding agency to bargain. Agreements must provide for workable outcomes
to disputes/grievances that develop during the life of an agreement;
- Agreements – ability to contest or intervene in the certification of
agreement process to ensure ‘genuine agreement’ and ‘appropriate award’
tests;
- Industrial Action – Legislation to require parties alleging unprotected
industrial action to apply to Fair Work Australia prior to commencing legal
action. Hearings of applications to take into account behaviour of the parties;
- Industrial Action – Ballots. Must be quick and easy to obtain, conducted
by the union/s and the electorate determined by union.
- Unfair dismissal remedies equally accessible to all workers regardless
of workplace size;
- Freedom of Association - Delegate rights. Strong protection for delegates
at all times, not just during bargaining. And must include both ’negative rights’
and also positive rights to freedom of association to allow proper union
functioning and representation;
- Freedom of association – Proper functioning - Right of Entry.
Employers must facilitate entry where there are ‘remote access’ issues;
- Freedom of Association – Proper functioning – provisions to inspect
all work and records covered by an Award or constitution for suspected
breaches of the Award, Act and to interview employees and employer;
- Independent Contractors – Include an unfair contract jurisdiction to
protect workers such as independent contractors;
- Transmission of Business – Legislation to ensure workers rights and
entitlements are protected and continuous in situations of transmission of business;
- Security for workers entitlements when an employer goes out of business;
and,
- Provide independent contractors with a mechanism through which
contract rates can be set and disputes conciliated.
20.In the current exercise of developing national model OHS legislation the
Victorian Government must work with the other jurisdictions and the Federal
government to ensure that:
(i) changes to occupational health and safety law do not result in a
diminution of the rights and entitlements of any worker;
(ii) and all occupational health and safety laws are developed in a
tripartite manner.
REFERENCES
Bamberry, L., Campbell, I., & Charlesworth, S. (2008). NES Exposure Draft -
submission. Retrieved from http://www.workplace.gov.au/NR/rdonlyres/EE82474
A-30BB-4DEA-ACBA-E83CD55B5A06/0/108BamberryCampbellCharlesworth.pdf
Bracks, S., & Australian Labor Party. (2006). Policy for the 2006 Victorian
Election, “When It Matters”. Melbourne
Diviney, E., Lillywhite, S & Brotherhood of St Laurence (2007). Ethical Threads,
Retrieved from http://www.nosweatshoplabel.com/_media/Diviney&Lillywhite_ethical_threads.pdf
Hulls. R. & State Government of Victoria. (2005). Code to Stop Victorian
Outworkers Getting Stitched Up. Retrieved from http://www.dpc.vic.gov.au/domino/Web_Notes/newmedia.nsf/b0222c68d27626
e2ca256c8c001a3d2d/1638c54967348adbca25701a00080952!OpenDocument
Smiljanic, V. & Job Watch Inc. (2004). Fast Food Industry: A Research Study
of the Experiences and Problems of Young Workers. Retrieved from
http://www.job-watch.org.au/jwinfo/fastfoodreport.pdf
International Trade Union Confederation Annual Survey of violations of trade
union rights 2008 retrived from
(http://survey08.ituc-csi.org/survey.php?&mode=pr&IDCont=0&Lang=EN)
Uniting Church in Australia: Eleventh Assembly. (2001). Dignity In Humanity:
Recognising Christ in Every Person: A Uniting Church in Australia Statement on
Human Rights. Retrieved from http://www.unitingjustice.org.au/images/pdfs/
issues/human-rights/assembly-resolutions/11_dignityhumanity2006.pdf
[1] Article 4 ILO Convention 155 states, “Each Member shall, in the light of
national conditions and practice, and in consultation with the most representative
organisations of employers and workers, formulate, implement and periodically
review and coherent national policy on occupational safety, occupational health
and the working environment.”
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