NWJC Submission on Industrial Relations Bill

Women's position in the workforce makes them more vulnerable to exploitation than men. They are more concentrated in small workplaces, more likely to be part-time, less likely to be unionised, more likely to be in occupations widely dispersed across workplaces, less likely to be in industrially strategic industries, more likely to be employed in industries where productivity is hard to measure, and less influential in the process of claiming work value and pay for their skills. Clearly therefore safety net provisions and enforcement mechanisms are particularly important for women. We are concerned that placing the onus on employees to enforce their rights individually will cause real difficulties for women and mean these rights are less likely to be enforced. Where attempts are made, due to the insecure nature of much of their work, women are at serious risk of victimisation.

A fair balance between employers and employees?

With the sidelining of the AIRC, the stripping down of Federal awards to eighteen minimum conditions, the prohibition on paid rates awards, the secrecy attaching to AWAs, and the primacy to be given to State awards and agreements, the NWJC is concerned that the Bill will undermine the balance between employers and workers, and threatens the idea of the same basic rights accruing to workers regardless of state borders. We fear that the States may be encouraged to compete amongst themselves as to which can provide industry with the cheapest labour where neither Federal legislation nor Federal awards provide adequate and enforceable standards.

Enforcing workplace rights

It has been widely publicised that AWAs will be secret, and they will not be scrutinised for compliance with minimum standards by the AIRC. Individuals are to be left to take action where these agreements fall short of the minima or are breached. The Employment Advocate is not required to provide free help to all complainants. In addition, existing union rights of entry to a workplace to check award compliance are to be abolished. Under proposed section 286, union officials will only be permitted to enter a workplace to check award compliance at the invitation of employees who are members and whose identity he/she discloses to the employer.

Need for community education and advice services

If, as a result of these major changes, individuals are to be left to enforce their rights, public education about rights at work must be undertaken. In this context we note with disappointment the abolition of the Outworkers Entitlement Campaign which would have informed particularly isolated workers of their basic rights, especially those from a non-English speaking background. Employees will also need access to independent advice services to help them understand their entitlements and enable them to negotiate appropriate pay and conditions. We recommend that the Working Women's Centres and the Women's Legal Services should be involved in the provision of information, education and advice and should be properly resourced for this purpose.

The importance of paid maternity leave

We welcome Clause 3(i) and (j) of Schedule 1 of the Bill which includes in the proposed Act as amongst its objects:

(i) assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers; and respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin (emphasis added).

Article 11(2) (b) of the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) provides:
 

"In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:... (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances."

Australia has entered a reservation to this requirement and at present lags behind its major trading partners in not providing a right to paid maternity leave for most women in the workforce. At the moment only around 17% of women workers are entitled to paid maternity leave, and although there is a common belief that unpaid maternity leave is a universal right in fact research shows that for example in New South Wales an estimated one third of women workers are not even entitled to this because they work in casual jobs or have not been in the same job for 12 months continuously (see reference to NSW Anti-Discrimination Board Report, below, p.8). The NWJC believes that the Government's Workplace Relations Bill provides an ideal opportunity for instituting this basic right on a national basis and conforming at last to established international standards.

Although the Minister for Industrial Relations, Peter Reith, issued a press release on 24 June to reassure women's groups that "paid maternity leave...will not be removed from awards", we fear that as the Bill stands what little paid maternity leave currently exists will indeed be under threat. Specifically our concerns are as follows. Most Federal public sector awards grant paid maternity leave of twelve weeks duration on full pay. Schedule 5 of the Bill grants the Commission power to make awards covering 18 specified matters including parental, maternity and adoption leave, but only as minimum rates. Theoretically, employees are then free to negotiate better terms and conditions. The Bill then requires the Commission (Clause 29) to ensure its decisions do not include matters of detail or process that are more appropriately dealt with by workplace/enterprise agreements.

Our concern is that given that twelve months unpaid maternity leave is the Federal and State statutory standard, paid maternity leave may well be bargained away in the award "stripping down" process, especially as the Commission will now only award minimal pay rises. Indeed the Commission may even feel obliged to seek provision for this to be negotiated at workplace level. An entitlement to paid maternity leave is exactly the sort of provision most likely to be bargained away for more immediate gains applying to every worker, as at any one time only a small minority of a particular workforce will have an active interest in preserving it. The same problem in negotiating improved conditions on the AWA and CA minimum of 12 months unpaid parental leave is applicable here too, and particularly in smaller workplaces. It is our view that whatever kind of organisation they are working for, individual women of child bearing age will be extremely reluctant to raise the issue of maternity pay for negotiation in case they are targeted for dismissal. Despite an express prohibition in the federal Sex Discrimination Act and similar state legislation, dismissal for pregnancy is undoubtedly a regular occurrence and can be hard to prove and therefore punish (see for example the Report of the Inquiry into Pregnancy Related Discrimination, New South Wales Anti-Discrimination Board, September 1993; Quentin Bryce, "Maternity in the Workforce: A Course in Discriminatory Conduct", Canberra Bulletin of Public Administration No.57, Dec 1988). And, of course, no one in her right mind will broach the topic in individual negotiations prior to employment!

We therefore recommend that the Bill be amended to expressly safeguard paid maternity leave where an award already provides for it.

Similarly, we are concerned at the ability to be given to employees in AWA's and CA's to negotiate personal/carers' leave payments in advance of their being needed. In effect this allows for such paid leave to be bargained away. The real function of these payments, to cover absence due to the worker's or a dependent's illness is particularly important for women with children. To agree to accept payment of it in advance (eg possibly in lieu of wage rises) will disadvantage parents and especially women who are most likely to need paid time off to care for sick children and other dependents. We therefore recommend that proposed section 170XJ(6) should be deleted to ensure that paid carer's leave is taken when needed or accrued until such time as it is needed.

Returning to the issue of maternity pay, we appreciate that there is now a means tested "baby bonus" of approximately $840 (the equivalent to 6 weeks Parenting Allowance). It is available on the birth of a child for those on family incomes of less than approximately $64,000 (with one child). The previous government stated rather ambiguously that the payment was introduced "in recognition of the fact that most Australian women do not have paid maternity leave". However, this payment is similar to maternity benefits in many European countries which are paid in addition to maternity pay, to help with the extra expenses associated with a birth. The new allowance does not compensate women for the cost to them personally both in lost wages and arguably in substantially impaired job opportunities, as women are less likely to return to work after unpaid maternity leave.

The economic arguments in favour of paid maternity leave have been thoroughly canvassed in "A Discussion Paper on Paid Maternity Leave in Australia", National Women's Consultative Council, 1993 (see especially Professor Judith Sloan, p.67). To date they have failed to win widespread recognition in private industry as only 17% of women workers in Australia receive paid maternity leave (and most of these are in the public sector) compared with, for example, 87% coverage in the United Kingdom. Whilst some private sector employers have started to grant paid maternity leave, progress has been very slow and uneven and the amount of leave granted is often inadequate (eg The 1996 Ford Australia maternity agreement is one of the first, and it grants only 6 weeks paid leave, barely time for women to recover from birth). The arguments for national minimum provision can be summarised as follows: -

• without paid maternity leave the major cost of providing the future of human resources of the country is left to individual women (and their partners, but to a lesser extent) to bear. The rest of society benefits from them but does not pay for them.
• the provision of paid maternity leave has the capacity to link women to their workplace, and encourages their return to it after a period off for child bearing. Being in work is the way women can retain independence in and out of relationships and avoid poverty in old age (plus of course saving government expenditure on pensions and benefits).
• there is good evidence that the provision of paid maternity leave significantly narrows the gender pay gap (see "The Family Gap for Young Women in the US and UK: Can Maternity Leave Make a Difference?" by J Waldfogel, 1993, Kennedy School of Government, Harvard University).

Our arguments are based on equity. If we are both to"assist employees to balance their work and family responsibilities" and "prevent and eliminate discrimination on the basis of sex...." then working women, like working men, must be enabled to have children without automatic, substantial loss of earnings. As long as women are economically disadvantaged by pregnancy and childbirth there can be no sex equality. It is incumbent on society as a whole through the government of the day to take responsibility for this issue.

Can we afford maternity pay?

We refer the Committee to the costing of twelve weeks of paid maternity leave capped at 150% of average earnings produced by the Office of the Status of Women in 1993, which was $383 million at 1990 prices ($430 million at 1995 prices). We also attach a table comparing maternity benefits in Europe in 1994 (see Appendix 1). It is important to put the cost to the public purse of providing paid maternity leave for women workers into perspective. For example, Mike Steketee in the Weekend Australian of the 15/16 June 1996 highlighted some expensive tax concessions which he called 'the real rorts'. The super concessions (worth $7.3 billion in 1994/95) are targeted to the rich. For someone on $95,000 per annum, they can be worth three times their value compared to someone earning $16, 000 per annum. Similarly $1.3 billion worth of the tax credits under dividend imputation went to those on $50,000 per annum or more and $311 million to the 1,895 people with an annual income of half a million dollars or more. We use these figures to emphasise that government expenditure is about policy choices.

We recommend the provision of twelve weeks paid maternity leave (with a cap at 150% of average earnings) to be inserted in the Bill. This should apply to all employees, including regular casuals and independent contractors who are in fact employees (see for example ACT Parental Leave (Private Sector) Act). The Government can then withdraw its reservation to CEDAW and gain increased international recognition for its equal opportunity and family friendly policies.

A typical Worker Arrangements: Casual and Part-time work

Hours of work

The Government has indicated its belief that preventing any restrictions on the number of part-time workers who can be employed under an award, or their hours of work, will assist women in combining work and family. Even if this is so in some cases, it may be at a high price. Without minimum weekly hours and/or minimum start times, part-timers who work for example 3-4 hours per week may be made permanent and lose the right to any casual loading. This is likely to be more valuable than accruing sick or holiday leave at that rate. Without limits on the spread of hours or to the length of shifts, it will also be possible to call in workers for a shift of only an hour or two with all the expense and inconvenience that entails for the employee. It should be noted that most childcare centres charge by the day or half day, and if women are to make themselves available they will have to have costly childcare arrangements in place on the off-chance of being given work. We recommend that proposed section 89A should be amended to give the AIRC jurisdiction over these matters.

We are concerned that casuals too will be disadvantaged by the Bill. We welcome the retention of the AIRC's power to set a casual loading and the requirement that AWAs and CAs include a 20% casual loading. Nevertheless, many Awards contain a 25% casual loading and DIR research indicates the loss of benefits is worth 27% of ordinary wages. To ensure that no worker is no worse off, we recommend that there should be a requirement of a 25% casual loading.

Unfair dismissal, casuals and small business

Apart from changing the way in which the fairness of dismissals is assessed, the Bill represents a rolling back of access to the federal jurisdiction. Only Commonwealth Public service, Territory and Federal award employees will be able to seek remedies for a harsh, unjust or unreasonable dismissal under the proposed legislation. State award and possibly (for constitutional reasons) many federal award employees will have to rely on the state unfair dismissal provisions. Many of these are unsatisfactory and do not fully comply with the ILO Convention on Termination of Employment (ILO 158). Unlike the existing legislation, they do not provide access for regular casuals who are unfairly dismissed. The proposed legislation will reduce the access that regular casuuals now have to complain of unfair dismissal by allowing for regulations to be made to exclude employees of small business. Given that the general requirements for making a dismissal fair will be much easier for employers to satisfy under the new legislation, and that the amount of any compensation awarded will depend in part upon the impact of the payment on the employer's business, there seems to be no valid argument for exempting small employers from an obligation to behave reasonably when deciding to dismiss an employee. We recommend that proposed section 170CC(1)(e) be deleted so that there is no exemption for small business can be made.

We are opposed to the introduction of a $50 filing fee for unfair dismissal claims which will hit hardest the poorest employees, amongst whom women predominate. We do not think the imposition of such a fee is consistent with the Government's policy of ensuring access to justice for all, including the disadvantaged. We recommend that there should be no filing fee.

Together with the other organisations mentioned at the beginning of our submission, we also recommend that employers should be required to notify their employees of dismissal in writing and that time for lodging a claim should run from receipt of the written notice. This is standard good practice and in all parties' interests to avoid misunderstandings over whether a dismissal has in fact been effected

Unfair contracts

We also regret the proposed repeal of section 127 A,B and C of the Industrial relations Act under which unfair contracts could be corrected by the AIRC. The ability to use workers under independent contract who are employees in all but name leads to the evasion of employer responsibilities not only towards employees but also towards government ( eg payroll tax, PAYE tax deduction etc). We suggest that the NSW legislation on this issue provides a useful model for preventing such evasion and we recommend at least retention of the existing federal provision. We also recommend that independent contractors who are in fact employees should be covered by the Bill's unfair dismissal provisions which, but for the Government's reservations about the use of the external affairs power, is constitutionally possible under ILO 158. It should be noted that apart from the ACT Parental Leave (Private Sector) Act mentioned earlier, independent contractors are covered by the NSW Annual Holidays Act, the NSW Long Service Leave Act and the Commonwealth Race, Sex and Disability Discrimination Acts.

SUMMARY OF NWJC RECOMMENDATIONS

In sum, to ensure that women's workforce position is protected, we recommend the following adjustments to the Government's Workplace Relations Bill and associated proposals:

1. Community education and advice

1.1 The Working Women's Centres and the Women's Legal Centres should be involved in providing community education and advice to women workers about their entitlements and obligations under the new law. Appropriate additional funding should be provided for this purpose.

2. Paid maternity and carers' leave.

2.1 The Bill should be amended to expressly safeguard award provisions for paid maternity leave where they exist already.

2.2 Proposed section 170XJ (6) should be deleted to ensure that paid carer's leave cannot be "cashed out" but is available to be taken when needed for that purpose.

2.3 The Bill should be amended to provide a minimum of 12 weeks paid maternity leave for all employees, including independent contractors and regular casuals. They should at least be entitled to the unpaid family leave that other employees receive.

3. Protection for casual and part-time work

3.1 The proposed section 89A should be amended to give the AIRC jurisdiction over minimum hours, spread of hours, starting times and length of shifts to ensure that unreasonable conditions are not imposed.

4. Unfair dismissal

4.1 Proposed section 170CC(1)(e) should be deleted so that no exemption can be made for small business in relation to the right of regular casual workers to claim unfair dismissal.

4.2 Filing Fee: there should not be a filing fee for making a claim for unfair dismissal.

4.3 Notice in writing: employers should be required to notify an employee in writing of dismissal, and the time for lodging a clasim should run from receipt of the written notice.

5 Independent contractors

5.1 The existing federal provision (section 127A,B,C of the IRA) under which unfair contracts can be corrected by the AIRC should be retained.

5.2 Independent contractors who are in fact employees should be covered by the Bill's unfair dismissal provisions.

    NATIONAL WOMEN'S JUSTICE COALITION
email: nwjc@nwjc.org.au
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