No this isn’t all about the Labor Party.
A comment by Nudge in response to Bryan’s Ozpolitics analysis of a Galaxy poll on the Industrial Relations changes :
Not surprising though. I once asked my wife why she preferred Howard to Beazley Mk.1, as a person without any regard to policy or political affiliation. Her reply? “I would go for a neat nerd ahead of a fat slob anytime”.
Back to the poll. I’m a blue collar worker - a motor mechanic - and my boss this afternoon began talking about reducing my wage, saying that at $18/hr I’m paid too much, when the minimum award rate is about $14.50
The thing that really burns me is the 100 employee minimum for unfair dismissal laws to apply - thus discriminating between workers on the basis of employer size. Blow that - everyone should be the same. Either all workers should have unfair dismissal protection, or none should.
BTW, the car dealer I work for employs 25, roughly evenly divided between blue and white collar
I’m not surprised at Nudge’s wife’s reasoning. Are you?
I’m not surprised that Nudge is pissed off about the 100 employee minimum. I personally see this 100 rule as the thin end of the wedge. It is so arbitrary and yes, unfair. I fully expect people will eventually demand that all workers be subject to the same dismissal laws. What say you?
And I am not surprised at Nudge’s employer’s attitude. Subtle hints, just enough to start creating insecurity and resentment. I suspect that employers can cut wages now if they are above award and there is no AWA but don’t dare to. Anyway, what would you advise Nudge to do?
Here is where I think unions and others who oppose the changes could be doing something positive for the public - for example giving advice on how to handle these situations - particularly since the laws haven’t even been drafted yet. To all intents and purposes, some employers are already acting as if they are already law - and they know what that law will be. Some as if it will be a free for all. I think it is emboldening others. I am hearing similar stories like that of Nudge in my own circles. And that will only get worse with the cynical $20 million dollar government advertising campaign.
As many have said: no one needs to worry about good employers. But all of us remember the bad ones. You know, the really enterprising ones.
So while the union ads for example, have been successful, is there also a need for some ….er…enterprise bargaining advice?
You make some good points, saint.
I guess that Nudge would be advised by the unions to join a union. Or he could ring me and I’ll advise him if he wants to hire me to do so. It’s difficult to say without more knowledge of the terms of his employment (ie casual, full time) but he would at the moment have some recourse under most circumstances if the employer decided unilaterally to reduce his wages to the Award rate. Particularly if he was sacked, but he’d also have some common law rights depending on various factors.
However, these rights might be very difficult to enforce. If his fellow workers all joined the Union, they would become easier to enforce. But the Federal government wants to stop a Union organiser visiting his workplace (the “right of entry” provisions).
Yes, Naomi, but if he’s typical of employees in small business he wouldn’t be employed under an AWA and is most unlikely to be employed under an EBA. The “no disadvantage” test only applies to AWAs and EBAs as compared to the award. If, as are a lot of employees, he’s just employed on the award, there’s little scope for him to exercise any legally sanctioned countervailing power to his employer’s diktats, which is one of the problems people have pointed to for years with awards as a residual employment category for those without collectively bargained agreements.
He’s actually suffering from the effects of a previous round of “reform” - the Workplace Relations Act 1996 - which prohibited “paid rates” awards. That is, awards which reflected how much people are actually paid, and only allowed “minimum rates” awards.
For instance, if I take a lecture at Uni, there’s an award rate for the hour’s delivery, and 2 hours’ preparation. It’s lower than the rate that I actually get paid because that rate is fixed by the EBA negotiated between the NTEU and my Uni employer. It’s not possible to fix the actual rate in the award but I have rights under the EBA.
If there is no EBA, and I am an employee being paid over the award rate, then I might have some rights if the employer decides to bung me down to the award, but it’s a grey area, and I’d need expert representation to test and enforce them.
I think Saint it is highly ironic that a Government full of ‘christians’ are bringing legislations which will provide great temptation to do sinful acts to their workers who are of course their neighbours!
The work/family conflict wil be exacerbated by this.
Nudge’s boss has always been free to reduce his pay to the award. The fact he hasn’t should tell you something important. If Nudge reckons he is sick and tired of being exploited by capitalist bosses, he should start his own business and capture all that exploited economic rent for himself. Do what I did once Nudge. Flog your house and use your hard-earned equity in it(assuming you did work hard and save) to buy an existing business and back yourself in mate. Then when you have been almost broke, working stupid hours, for less than your paid employees, without their holidays, super or sick days, etc AND you’ve listened to all your employed friends and relatives tell you you’re mad and need to chuck it in and get a job like sensible folk and you come out the other side wiser and better rewarded than them, then they can call you a capitalist exploiter like me. Give it a Nudge mate. What have you got to lose? You know you know how the boss’s business should be run, better than he and you can be a good boss and pay all your emloyees $25/hour or even $30/hour and they’ll all love you for a month or two.
Homer - haven’t you been listening to Mr Costello? But, yeah, it is ironic.
Saint, this could be the antidote? From http://www.onlineopinion.com.au/view.asp?article 3517–selected paragraphs by Irfan Yusuf acknowledged from that site.
”Mr Howard‚Äôs reforms simply won‚Äôt work. Let‚Äôs look at unfair dismissal. Say my fictitious client Jasmine approached me and said she had been working as a research scientist for a decade before being shafted by her laboratory management, would I first look at unfair dismissal? I might consider it as one option. But unfair dismissal has enormous disadvantages.
…………
…………
…………
If employers realised how expensive a claim for unfair contract is (as opposed to an unfair dismissal claim), they would not be cheering Mr Howard on in his crusade against state unfair dismissal laws. If unfair dismissal is made unavailable, more litigants will use alternate legal avenues which will prove even more expensive for employers.”
Nudge’s boss has always been free to reduce his pay to the award.
That’s not right, observa. It depends on what rate of pay he was offered when he started work and the terms of his engagement (ie full time, casual, limited term, permanent). If he’s a permanent, full time, employee, then he probably can’t have his wages unilaterally cut.
Let’s say the award rate for blog commenting is $15. If I offer you, observa, a permanent full time job blog commenting for $17 an hour, that then forms part of your common law contract of employment. If I subsequently unilaterally reduce it, I’ve breached the contract. But you’d have to hire a lawyer and take me to the District Court to do anything about it - in all likelihood.
Just as people will have to do to enforce the rights Mr Howard is telling them they still will have under his legislation.
Yes, Peter, that’s right - but the employee would need around 20k to go to court. However, if lawyers start offering contingency fee actions on dismissal, employers will be sighing and agitating for the return of the AIRC.
Just to anticipate observa’s possible objections about the heinous nature of judge made contract law, the same principles apply to a contract for the sale of goods. That is, if Nudge’s boss offers to fix my car for $100, and I accept, and then refuse to pay more than $50 because I’ve decided that it’s unfair and a rip off price, Nudge’s boss can enforce his rights in contract against me.
So Mark, are you saying we’ll still have rights but we’ll be unable to enforce these rights in any meaningful way? Unless by sucking huge payments out of bosses for unfair dismissals in the courts instead of going through a much cheaper process we currently have?
How is this a good thing?
Kate, yes, and it’s not a good thing.
“I‚Äôm a blue collar worker - a motor mechanic - and my boss this afternoon began talking about reducing my wage, saying that at $18/hr I‚Äôm paid too much, when the minimum award rate is about $14.50″
Err, I think we can all safely assume that Nudge’s workplace works under an award of $14.50/hr(Federal if the employer is a member of the MTA). I can’t see Nudge’s boss having many mechanics if stops paying over award rates of $18/hr. Still, he’s welcome to try. His competitors will be thrilled. It’s extremely difficult to legislate against commercial suicide. Of course a Labor Govt could come in and put a stop to all this, by fixing the price of EVERY mechanical service(won’t that create lots of PS admin jobs) and thereby mechanic’s wages. That should do the trick. Makes you wonder why societies haven’t thought of it before?
Not necessarily 20K as far as I can see Mark. This is what Howard also has to abolish to make it all watertight. Constitutional battles ahead which could take years.
INDUSTRIAL RELATIONS ACT 1996 - SECT 106
Power of the Commission to declare contracts void or varied
106 Power of the Commission to declare contracts void or varied
(1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract.
(2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason.
(3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time.
(4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force.
(5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case.
(6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss.
Yes, but I’m sure that section will go. Though they’re running a certain risk, Peter, in drafting the new laws from the ground up rather than redrafting the WRA. If the legislation is ready in time, I’ll be surprised.
A gathering of boilermakers: ‘The workers united will never be defeated!’
‘Hey! Have you heard the rates the Sub Corp are offering? I’m outta here.’
‘Yeah, me too.’
The Boss: ‘Hey guys! Whatever happened to mutual loyalty, job security, the enterprise and all of us in this together? Guys…?’
Peter, sorry, that’s the NSW act, isn’t it? There’s a similar provision in the Qld act. It’s more than arguable that these provisions will continue to operate if the Commonwealth isn’t clever about “covering the field”.
My gut feeling is that the High Court won’t accept the Commonwealth’s extremely wide interpretation of the Corporations Power, and that things might get interesting from the legal angle.
Is Observa predicting the rebirth of the union?
This whole lack of skilled workers thing hasn’t seemed to have driven up wages in child care, for instance, where despite an incredible lack of staff, workers still earn frighteningly little.
And have only recently earnt a little more because of unions and an AIRC test case. The problem is the social devaluation of women’s skills, because they’re seen as “natural”. Every woman knows how to look after kiddies, don’t they? Why should we pay them to do it?
And like executive assistants often manage their bosses’ lives as well as do their work. I had the misfortune when I was young to do a secretarial course. Aside from the deportment lessons, we had a multi-choice test on what we should do if our boss asked us to order his wife (the questions were written like that) flowers.
Anyway, I must get back to work. Being self-employed, I’ll have to unfairly dismiss myself otherwise.
Gawdelpus! We’ll all be rooned, just like reducing tarriffs, floating the dollar, waterfront reform and the GST.
The GST in fact has had a major impact on those on low incomes, observa, because the price of necessities has risen at a much higher rate than the CPI. And the reduction of tarriffs (to which I’m not opposed), while lowering the price of consumer items, has just about wiped out manufacturing in certain sectors - ie TCF - with consequent employment implications. Look at the pathetic spectacle of huge state/federal government subsidies to prop up car manufacturers in SA as another example of the effects.
The difference with IR changes is that they’re of immediate relevance to people’s everyday lives, and unlike the GST package, no attempt has been made to soften the blow. Quite the opposite.
Mark, this is a question I’ve seen raised a few months ago, as to whether the Commonwealth corporations power can be used to legislate for IR for much of the workforce. If we accept that it can legislate on IR for corporations under this power (for the sake of argument), what other organisations could it legislate IR for under this power? There are probably organisations that couldn’t be classified as corporations, however you defined it. They’d probably still be covered by state law.
On another matter, does anyone know whether constitutional lawyers think that the Commonwealth can use the corporations power to legislate for IR?
“This whole lack of skilled workers thing hasn‚Äôt seemed to have driven up wages in child care, for instance, where despite an incredible lack of staff, workers still earn frighteningly little.”
It’s called elasticity of supply and demand my dear. Those awful analytical graphs in Economics 101 again. You can of course override them completely like Stalin, Mao, Castro, Pol Pot, Kim Jong Il, etc, but this does produce some rather unpleasant externalities I’m told.
Sach, yes, only for registered corporations. That excludes a lot of small businesses. However, it’s a grey are as to whether the state law will still operate. The advice the Queensland Government has is interesting.
Thanks Mark - what does the advice to the Qld Govt say?
Also, which IR law would cover organisations that are not registered corporations?
Mark, yes that is NSW leg, sorry I wasn’t explicit. They will have to cover the field in both industrial relations and contract law. While the former is arguably allowable in *interstate trade* provisions of the constitution (for the federalistas), within the state is the moot point. To add contract law (as a primary constitutional area for the states I think) to all this, assuming they do, must make for one monumental drafting effort which in any case will be, as soon as its enacted (with Barnaby’s et al approval—is it in Qld interests?) be challenged by the states in the HCA.
I think Howard has bitten off more than he can chew, and what a schemozzle it will be if 20 mil +++ goes up the spout before an HCA rejection. Workers browned off in the meantime as some cheeky employers pre-empt the new laws. Hubris may indeed be followed by nemesis. For what its worth my constitutional mate who wrote a Butterworths text thinks ‘cover the field’ will be extraordinarily difficult.
“On another matter, does anyone know whether constitutional lawyers think that the Commonwealth can use the corporations power to legislate for IR?”
Everybody in the debate is labouring under the assumption that corporations power will Sachmo, although the Labor States might challenge it. Presumably the Feds think they’re on very firm constitutional ground here. Yes, unincorporated employers could still come under the umbrella of State IR, but would the States persevere independently, when incorporation is the simple way out for any employer. Also the Feds hold the purse strings and can easily reduce State Grants by the amount they estimate States are spending on IR. Basically a fait accompli.
I can’t say, Sach. And state IR laws would continue to apply. Federal law also covers organisations with interstate operations, but there’s doubt here about the reach of the power because it’s the arbitration and conciliation power and much of the mooted legislation would see employment regulation outside the AIRC framework.
Anyway, sorry, complex subject, gotta run!
Sachmo, you can incorporate as a proprietary limited company with yourself as sole director and it will cost you about $300/year, so you get the picture here?
Interestingly enough, when Kennett handed over Vics IR to the Feds, presumably Vic got a windfall saving, which won’t be available to the slowpokes now, you wouldn’t think. Anyone know if the Vics got to keep the bucks they saved?
Here’s a good economic analysis debunking some of the myths surrounding the IR reforms at http://www.brookesnews.com/051107wages.html
Notice the first myth that unions can raise real wages for everyone. You only have to think about everyone being in a union and our unions negotiate a 25% rise in all our wages, to appreciate the fallacy of composition there. Interestingly enough, the least unionised workers are the lowest skilled and lowest paid. Union types immediately jump to the conclusion- aha, at the same time therefore because of, when they really need to take on board the low capital(physical and human)/low productivity lesson. The analysis does have a sting in the tail for both sides of the political rhetoric however.
observa, why not change your nick to “dodgy shelf company” then?
Kim, the issue of incorporation is not necessarily a dodge, although it can be, just like dodgy partnerships or sole traders can be. I am a sole company director now, although I was in the motor trade unincorporated. As such I was a member of the national Motor Trade Association, which meant my employees like Nudge were automatically under a Federal Award. Incorporation had nothing to do with it, although it could in future. I must confess if I were unincorporated and had to choose between Howard’s Federal system (now and soon to be)cf Rann’s draconian proposed ‘Fair Work Bill’, which is a Stalinist union wishlist, incorporation would be mandatory. Of course that probably won’t be necessary for many now.
Hi all. I’m most amused to be the topic of conversation. Fortunately, my employer does not have the ability to dominate an intelligent, articulate AMWU member such as myself in a negotiation, and has now agreed to a $7 pay rise to cover my union dues. He just caught me at a low moment, and based his reasoning on my productivity slipping last month.
For crying out loud, my first child was born two weeks ago. Of course my productivity is going to take a temporary dive!
BTW, observa, I’ve been there and done that on the business thing. That’s how I survived Keating’s recession we had to have.
I appreciate your support, people.
Cheers
Nudge
Pleasure, Nudge, glad it worked out for you and congrats on the birth of your child.
Hi Nudge. I was hoping you would drop by and fill us in on more of the story. Cheers.
I imagine that the corporations power couldn’t be used to cover State. Govt. employees - while local governments could possibly be considered corporations, I don’t see how state governments (possibly even territory govts) could be.
Any thoughts?
Absolutely not. There’s a High Court case on whether the Federal Government could legislate for state gov’t employees - from 1922, from memory, can’t remember the name at the moment.
The Brisbane City Council operates under Federal awards at the moment. I’m not sure about local govermnent generally.
There’s a good piece on the limitations of the Corporations Power’s reach in the SMH today.