AREEA’s Director of Government Relations, Daniel Mammone, is spearheading the resource industry’s advocacy in the first four-yearly statutory review of the Modern Awards system. Here, Daniel details the key union claims and explains how and why AREEA is vigorously opposing them on behalf of our resource industry members.

MANY MEMBERS will be aware of AREEA’s active involvement in the first four yearly statutory review of modern awards, currently being undertaken by the Fair Work Commission.

In recent developments, AREEA has lodged its written reply submissions which strongly oppose the ACTU’s common claims. This is critical for our industry given such claims would significantly increase labour costs and reduce flexibility for resource industry employers.

Further, AREEA appeared at a mention hearing on Monday 29 February to deal with the programming and timetable of the ACTU’s common claims for casual employment and part-time employment before Vice President Hatcher.

The case will consider model clauses which it intends to flow-on as a test case across the majority of modern awards.

What are the ACTU’s ‘common claims’ for modern awards?

It is important to understand the ACTU’s common claims and the impact this could have on business.  In summary, the ACTU’s major claims are to:

A.  Insert a standard minimum engagement provision for both casual employees and part-time employees (four hours).

B.  Create a standard casual conversion clause:
According to the ACTU, such a clause would allow “a casual employee, other than an ‘irregular casual employee’, who has been engaged by their employer for a sequence of periods of employment during a period of six months, the right to elect to have their contract of employment converted to a full-time or part-time employment.”

The ACTU’s conversion model clause does not allow an employer to object to an employee’s election and an employee who converts will have their prior service recognised and counted for the purposes of the Fair Work Act and the award. Finally, the employer is also prohibited from reducing or varying an employee’s hours of work, as an internal anti-avoidance provision.

C.  Insert a standard anti-avoidance clause:
The ACTU’s proposed standard anti-avoidance clause has three limbs. Firstly, it would prohibit an employer from engaging or re-engaging any employee (including a casual employee, a fixed term or task employee, or independent contractor) or outsource the employee’s work, to avoid any obligation under the award.

Secondly, an employer would be prohibited from increasing the number of casual or part-time employees without first allowing an existing casual or part-time employee engaged on similar work, an opportunity to increase their normal working hours.

And thirdly, an employer would also be required, when engaging a casual employee, to inform the casual in writing that they are employed as a casual. This involves stating by whom they are employed, the classification level and rate of pay, and the likely number of hours required per week. A schedule of draft determinations have been filed by the ACTU which details which variation is sought for each modern award relating to casual and part-time entitlements

How is the ACTU justifying its significant changes?

The ACTU’s claim is primarily underpinned by its concern about the increase in so-called ‘insecure work’, stating in its submissions:

“The ACTU’s claim is directed at the problem of insecure employment in Australia. We propose a pathway out of casual employment for long-term regular casual employees who desire it and improved minimum hours of work for both casual and part-time employees”.

The second objective of the ACTU’s claim is to: “ensure that casual and part-time employees have viable minimum hours of engagement” and that “short shifts contributes to insecurity of employment and a significant number of casual employees are engaged on shifts that are too short to be viable”.

The ACTU assert that the FWC must “act to protect the relevance and integrity of the safety net in the face of this exponential growth in both casual employment and long term, regular casual employment”.

To support its claim, the ACTU has filed extensive materials, including two expert witness reports and is also relying upon the Insecure Work Inquiry and the Lives on Hold report, which was an inquiry initiated by the ACTU.

Why/how is AREEA opposing the ACTU’s claims?

AREEA has opposed the ACTU’s claims in their totality and has provided a joint submission with Maritime Industry Australia Ltd (MIAL), similarly opposing the variation of maritime industry related modern awards.

The submissions by the resources and maritime industry seek to rebut the ACTU’s assertions about the growth of insecure work, particularly in light of the recent findings of the Productivity Commission in its report on Australia’s Workplace Relations System.

In short, the Productivity Commission found little evidence that casualisation or other non-traditional forms of employment have been increasing in importance over the past decade. In fact, it found the very opposite and that job security, on average, has been increasing.

The industry submissions also highlight, in addition to a significant increase in labour costs, the operational and compliance difficulties the ACTU’s model clauses will have on employers.

The ACTU claims are significant and the industry will vigorously oppose them in hearings scheduled over the next few months before a Full Bench of the Fair Work Commission.

Want to learn more?

Click here to read an outline of AREEA’s submission to the 4 Yearly Modern Awards Review.

Click here to read an outline of joint submissions on behalf of AREEA and the Maritime Industry Australia Limited.

For a more detailed briefings or to provide feedback on AREEA’s involvement in the four yearly review of Australia’s modern awards system, email [email protected] or call 1800 627 771.