Workplace Battleground? The election and legislating flexibility and penalty rates

The workplace is fast becoming the battleground for the upcoming election. This last week has seen a lot of discussion about flexibility provisions and the merits of legislative management of this issue. This follows on the heels of calls from employee groups to legislate to protect weekend penalty rates. As political and interested parties stage a pre-election war around workplaces, it is not surprising that businesses are frustrated as yet another layer of legislation is proposed, and the relationship between employers and employees is painted as dysfunctional and abusive.

Flexibility

The Government has recently announced proposed changes to the Fair Work Act to broaden the applicability of the National Employment Standards (NES) right to request flexible working arrangements. This targeted expansion of the right to request flexible working arrangements has confused many. This confusion comes from the interaction between the NES and Modern Awards (and Enterprise Agreements). Between these two legislative instruments all workers are able to request flexible working arrangements. The interplay of these instruments provides that all workers can request flexible arrangements and that the business must consider the request and respond formally. The business is not forced to accept the request, however, with provision under both the NES and Modern Awards/Enterprise Agreements, for the business to decline on the basis of  ‘reasonable business grounds’.

The proposed changes, offering an expansion of the workers who can access the NES provisions, though still under strict conditions, such as 12 months continuous service, have been criticised as adding legislation unnecessarily.  As all workers can call on the right to request flexible arrangements through the NES or the Modern Award/Enterprise Agreement systems, such a change to the NES legislation is seen as superfluous. The argument that workers who are not covered by Modern Awards or Enterprise Agreements can only rely on the NES to facilitate flexibility requests, is a long bow to draw, as those employees are on individual contracts that are by definition 'flexible'.

Penalty rates

Australian Council of Trade Unions (ACTU) president, Ged Kearney, caused a stir when she called for legislative protection of penalty rates to “protect the great Aussie weekend” and to combat what she referred to as “employers seeking to erode penalty rates”. Businesses and employer organisations argue that penalty rates are already “enshrined” in the governing mechanisms of Modern Awards and Enterprise Agreements. The Fair Work Commission and Ombudsman are already managing non compliance with penalty rates effectively. With restitution and fines being imposed on recalcitrant employers on a regular basis.

Workplace Relations Minister, Bill Shorten, has since confirmed that no such enshrining of weekend penalty rates is on the legislative agenda. Which is a win for common sense.

Legislating relationships

With the sheer number of interactions between employers and employees there are bound to be some that are dysfunctional. The system has existing checks and measures to identify those relationships and to correct situation in favour of the employee. However, to suggest that a law is needed to emphasise the requirement to comply with existing legislation is bordering on absurd.

Unfortunately, in the lead up to an election, with the news focused on every supposed ‘battleground’, it is not helpful to employers, employees or the healthy operation of their relationship, to stir up such derision and contention over what is a non-issue.

When calls like those we have seen in the last week - that we need a law to protect penalty rates or the right for employees to talk to their employer about flexibility - hit the headlines, workers assume that their rates and rights to ask are not already protected. Which is wrong. Employees have the right to request anything of their employers, and employers are already accountable for giving due consideration to flexibility requests under the NES and Modern Award systems. Further, the rates of pay and penalties are closely and fiercely protected by the industrial relations system in Australia. When politicians, commentators and others suggest otherwise it is spotlight grabbing at its best and fear mongering at its worst.

Senator Eric Abetz said it best recently, “Once again it’s the divisive and constructive mantra of the boss against the workers, rather than seeing employers and employees being involved in a joint enterprise”. The majority of employer and employee relationships are functional and mutually beneficial, with business and worker pulling in the same direction to create viable businesses and stable incomes together. The focus on legislation as the answer to those few dysfunctional workplace relationships, will complicate business and add an adversarial note to even the most healthy of working relationships.

From my seat here as one of ACAPMAs Workplace Relations Professionals, I get to see the side of this relationship that does not make the news. From the employer who keeps paying sick staff long after their sick and annual leave is expended, to the employer going guarantor on home loans for staff.  Functional and healthy workplace relationship is the norm in Australia, and amazing relationships are everywhere I look. Dysfunction and abuse, however rare in the system overall, appears to be all we will hear about until the election.

Here to help

ACAPMA will continue to monitor the proposed changes and to report to members and the industry on the impacts on their business. Members are reminded that they can call 1300 160 270 to speak to ACAPMAlliance Workplace Relations Professionals on all employment matters.

For more information on the operation of flexibility in your business now see this weeks related HR Highlight.

Elisha Radwanowski
Workplace Services Manager
ACAPMA
elishar@acapma.com.au