December 16, 2020
The Federal Government has proposed new IR laws that would severely weaken protections for mining and energy workers.
The so-called IR Omnibus Bill attempts to overturn our Union’s important WorkPac Federal Court wins and stop us challenging dodgy non-union enterprise agreements, like the BHP Operations Services EAs we recently defeated.
Labor and the union movement have committed to fight the IR changes – branding them the worst attack on workers’ rights since WorkChoices.
The Fair Work Amendment (Supporting Australia’s Economic Recovery) Bill 2020, introduced to Federal Parliament by Attorney-General Christian Porter last week.
Here are key measures affecting mining and energy workers:
1. Locks in employers’ definition – you are casual if the boss calls you one
The proposed definition of casual goes against the Skene and Rossato judgments, where the Federal Court ruled that casual work was characterised by being intermittent and with no firm advance commitment.
Porter has adopted employers’ preferred definition, which is that if we call you a casual when we hire you, you are a casual: “A person is a casual employee where an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.”
It’s pretty confusing but it means that if you sign a contract saying you’re a casual then you’re a casual – regardless of whether your work hours and commitments end up being permanent in nature. It’s just that they didn’t promise it would be continuing.
2. Right to ‘request’ permanency – but the boss can say no
The new legislation says an employer must make a written offer of conversion after 12 months if for the last six months there has been a regular pattern of work. Except that an employer does not have to make the offer if there are ‘reasonable’ business grounds not to. There is no provision to take disputes over casual conversion to an independent umpire for arbitration. It’s just lip service.
3. No compensation if you’ve been illegally ripped off
The new definition of casual as well as ‘set-off’ provisions, meaning any casual loading paid is set off against legal leave entitlements (contrary to Federal Court judgements), would be retrospective. This attempts to quash legal claims for backpaid compensation stemming from the WorkPac decisions our Union fought and won. We will do everything we can to continue our class action against WorkPac.
4. Allows workers to be worse off
In a move that was never discussed in the Government’s IR working groups with unions and employers, it is proposed to allow a two-year window to approve Enterprise Agreements that do not pass the ‘Better off overall test’ (BOOT) compared with the Award. The Government is using COVID as an excuse for employers to downgrade workers’ conditions.
5. Restricts our ability to challenge dodgy agreements
Our Union has a strong track record of proactively challenging non-union Enterprise Agreements in our industries, to protect conditions and stamp out the worst agreements. We use a number of legal provisions to do this, including the ‘BOOT’ and requirements to notify workers and explain agreements. We recently challenged and defeated BHP’s two Operations services agreements using these provisions.
The new IR Bill prevents unions which are not bargaining representatives for an Enterprise Agreement from making submissions to the Fair Work Commission. It also removes mandatory pre-approval steps like requiring employees to be provided with agreements, have the contents explained and be notified about voting requirements. Dodgy boss heaven.
The legislation is expected to come back before Federal Parliament in March after going through a Senate committee process – our Union will join the campaign to stop the laws being passed in their current form.