Supporting the Right to Work Campaign

The following is a speech given by HR Nicholls Society President Adam Bisits at the launch of the Australian Liberal Students’ Federation Right to Work campaign to abolish 3 hour shift minimums: 

With Aaron Lane I thank Jack Aquilina and Evan Mulhulloand for the invitation to support this Right to Work campaign.

The HR Nicholls Society stands for freedom of employment including the employee directly agreeing terms of employment with the employer.

Thus the employee should be able to decide and agree his or her minimum hours of work.

A 3 hour minimum shift imposed by delegated legislation denies that freedom. The “modern award”, as the delegated legislation is called, is not made in settlement of a dispute, which might have led to a  ceding of freedom. The award operates as a plain denial or taking of freedom.

On its face this is an unfair denial because most people, including senior high school students, know when it is efficient and practical for them to go to work.     If I live above the shop even less than an hour’s work may be worth my while.

The Fair Work Act which is in large part about process and rituals, also provides for variations, as is proper since an ‘award’ is broad brush and special situations should be allowed for.

What would you expect in a variation procedure?   You would expect that the aggrieved party could seek the variation; that the party’s union might support such an application; that the Fair Work Commission’s would consider whether the requirement complained about (in this case a three hours minimum shift) was unjust or harsh or unreasonable; and that the commission would decide the matter quickly and informally, perhaps in the locality of the complaint.

However the saga in 2010 and 2011 beginning with teenagers in Terang who wanted to work after school shows that such a procedure does not exist.

First as I understand it, it was a union, the Shop Distributive and Allied Employees Union, that objected to the students working. The workers representative did not take the side of the workers. That is unfair.

Secondly, there was the Fair Work Australia process.

–         FWA held hearings over 5 ½ days

–         being hearings in Sydney and Melbourne but not Terang

–         involving 6 parties (IR club members) but the victims themselves were not parties!!

Such an extravaganza on such a small issue  ie. 3 or 1/ ½ hours for 4 people in Terang is unfair, wasteful and inefficient. Not to have the victims as parties was immoral and unjust.

Thirdly, two of the students did give evidence over the phone. School students – one broke down in tears under cross examination. The exercise was heartless.

The whole saga was a disgraceful exercise of power and victimisation of the poor – in this case school students.

You might say the decision was heartless and unjust but legally correct.  Here the questions are:

(1)  was there power to vary the minimum hours from 3 hours to 1.5 hours?

and

(2)  if there was power, should such a variation have been made?

There is an express power to vary if the FWC “is satisfied that making a determination is necessary to achieve the modern awards objective”                 (s 157(1)).

This objective is defined broadly in s 134 as “minimum employment terms”

– the terms could be brief and few; or

– voluminous and detailed.

The terms don’t have to include minimum work hours.

Thus, I suggest, if the commission considering a variation application found that an award should not have minimum hours, and the existing award did have minimum hours, the test would be satisfied.  Removing the minimum hours objective in that case is necessary to achieve the modern award objective.

The three hour minimum has now been before the Fair Work Commission four times, the first two times directly as a result of the plight of the students at Terang.

The first decision, National Retail Association Ltd and ors s 158 application to vary or revoke a modern award General Retail Industry Award[2010] FWA 5068 (Vice president Watson, 9 July 2010), and the second, on appeal, Appeal by National Retail Association Ltd and by Masters Grocers Australia Ltd [2010] FWAFB 7838 (8 October 2010), made no finding of what a modern award should say about minimum hours  Thus they did not grapple with this basic issue of power or ability to, make a variation.

As to whether a variation should have been made the first decision found that a 3 hour requirement for work significantly limited work for students in regional Victoria who could only attend for less than the 3 hours (para 32) and that limiting opportunities for youth employment should be avoided (para 35).  Yet the Vice President hearing the matter thought the evidence was inadequate and he said (para 35) that fairness to employees had to be balanced against other objectives such as not shortening work periods for workers whose “travel costs of attending work are unchanged.”

If the variation had related only to school students or those at Terang the variation should have been granted. The second decision on appeal hinted that this is what should have been done.

The matter of minimum hours then came before the Fair Work Commission the following year and it applied the hint from the case before it, by applying a new secondary school students provision allowing a minimum one and a half hour shift, in the following terms:

Clause 13.4 is varied by the addition of the following words at the end of the clause: 

“provided that the minimum engagement period for an employee will be one hour and thirty minutes if all of the following circumstances apply: 

a) the employee is a full time secondary school student; and

 b) the employee is engaged to work between the hours of 3.00 pm and 6.30 pm on a day which they are required to attend school; and

c) the employee agrees to work, and a parent or guardian of the employee agrees to allow the employee to work, a shorter period than 3 hours; and

d) employment for a longer period than the period of the engagement is not possible either because of the operational requirements of the employer or the unavailability of the employee.

 

The fourth decision, Shop, Distributive and Allied Employees Association [2011] FWAFB 6251 (14 September 2011)  dismissed an appeal from that decision.

Thus the result of the 19 month saga was that school students can in limited circumstances work for less than 3 hours.  The key term on which students can now work is that they agree to work for less than three hours.  Stated or unstated such agreement would always have been a term. It is regrettable that so basic a conclusion only dawned on the Fair Work Commission after so much litigation.

Close attention to the legislative power and the discretion to be exercised would have resulted in a much shorter resolution of the matter.  Note however that there were four employer bodies pressing for a reduction in the minimum hours.  Had they pooled their resources for a more polished case they might have been more successful. (Incidentally the union party, the SDA, was represented by “counsel”, unlike the employers.)

A quicker result would also have been achieved if a more conventional variation procedure had been provided in the Fair Work Act.

The original federal industrial power, in S 51(xxxv) of the Constitution, which was to settle industrial disputes, indicates a more appropriate power, with the potential to focus on the particular workers’ problem.

Contrast also the unfair dismissal power in ss 385 to 393 the present Act, which gives a simple remedy for dismissal which was harsh, unjust and unreasonable

Thus when it comes to the preferences of the employee as to the minimum hours he or she would work, the Fair Work Act denies the worker a dispute resolution process and a remedy to vary an unfair term in an award.  The employee in fact has no remedy and such remedy as is given employer bodies is expressed in terms of achieving an obscure objective about modern awards.

What is to be done?

–         As the result of the four decisions shows, the minimum hours of work for an employee is a matter for agreement by the employee.  Thus a minimum does not have to be specified, and the minimum hours should be removed.

–         Disputes or issues of fairness might arise about a minimum in a particular case.  The Fair Work Act provides no remedies in this case.  It should.

–         If there are general minimum hours of work requirements they should be variable by agreement or on application by the aggrieved worker.

These changes would be best achieved by amending the Fair Work Act, but until then aggrieved parties should consider the present variation procedure.

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