Researchers at the Women in Social & Economic Research (WiSER

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                National Employment Standards
                Exposure Draft Discussion Paper

Submitters:       Professor Alison Preston
                  Dr Therese Jefferson
                  Dr Angela Barns

Organisation:     Women in Social and Economic Research (WiSER)
                  Curtin Business School
                  Curtin University of Technology

Address:          C/o Graduate School of Business
                  78 Murray Street, Perth 6000
                  PO Box U1987
                  Perth WA 6845

Phone:            08 9266 7900

Fax:              08 9266 3368

    Women in Social & Economic Research Curtin University of Technology

                      Submission in response to

                  National Employment Standards
                  Exposure Draft Discussion Paper

(Department of Employment, Education and Workplace Relations)

                                April 2008

                                                         Professor Alison Preston
                                                           Co-Director of WiSER
                                                     Graduate School of Business
                                                  Curtin University of Technology
                                                                   PO Box U1987
                                                                   Perth WA 6845

                                                             Phone 08 9266 7900
                                                             Fax 08 9266 3368
                                      ABOUT WiSER

The Women in Social and Economic Research (WiSER) unit was founded in April 1999 in
response to a growing void - within Australia and internationally - in the gender analysis of
economic and social policy issues that confront women. To most effectively address this
void, WISER was established as an inter-disciplinary research program, spanning two
divisions of Curtin University, the Curtin Business School (CBS) and the Division of

WiSER is committed to producing high quality quantitative and qualitative feminist research
on a broad range of issues that women identify as undermining their ability to achieve equity
and autonomy in the current context. Meeting this commitment is enabled by the breadth of
experience and expertise brought to WiSER by an increasing range of researchers.

Through its academic and consultancy research into women's experiences of social and
economic policies WiSER provides a meaningful gender analysis of policy. An analysis
strongly put forward via active contribution to government policy debates.

Our broad objectives include:

   •   Identifying the cases and causes of women's disadvantaged social and economic
       status and to contribute appropriate policy initiatives to address this disadvantage.

   •   Demonstrating the way in which social factors, particularly gender, influence the
       construction of economic theory and policy.

   •   Extending current theory and research by placing women and their social context at
       the centre of analysis.

   •   Contributing an interdisciplinary approach to the understanding of women's position
       in society. In turn, this should enable the unit to better reflect the interrelatedness of
       the social, economic and political discourses in policy and their consequent
       implications for women.

   •   Fostering feminist research both nationally and internationally.

   •   Expanding linkages with industry.

   •   Establishing and supporting a thriving Curtin University postgraduate research
       community with a common interest in feminist scholarship.

For further details see:
Researchers at the Women in Social & Economic Research (WiSER) unit welcome the
opportunity to make a submission on the Department of Education, Employment and
Workplace Relations’ Discussion Paper on National Employment Standards. We thank
the DEEWR for providing this opportunity.

Due to time constraints we are unable to make a lengthy submission before the deadline
of 4 April. We are therefore limiting our comments to three key issues that we believe are
significant in meeting and safeguarding the minimum employment requirements of those
participating in relatively low paid and insecure forms of work. In many cases such
employees are women attempting to combine paid work with unpaid household
responsibilities such as the care of younger or older family members. Increasingly,
however, men are also working casual, part time and irregular working hours. Thus many
of the issues that we raise are growing in significance to specific sectors of the workforce
that are expanding rapidly.

The three issues that we address in this submission are:
   1. The definition of maximum weekly hours;
   2. Arrangements for allowing flexible working hours; and
   3. The role played by national employment standards in the emerging workplace
       relations system.

1. Maximum weekly hours
We welcome the Department’s specification of 38 hours as a maximum working week
for those in a variety of working arrangements including casual, part-time and full-time
work. We would however, like to see the discussion of maximum weekly hours
connected to further discussion about arrangements that apply to “reasonable” hours in
excess of the specified 38 hours. In particular this submission argues for a careful and
deliberate consideration for ensuring that employee choice is possible.

    • Employees must have the capacity to choose
Recent labour market research has highlighted significant disparities between the theory
and practice of employee choice, particularly in relation to working-time (Preston &
Burgess, 2003; Jefferson & Preston, 2007a). The concept of ‘employee choice’ is now
relatively tarnished given its centrality within recent labour market deregulation (Preston
& Barns, 2002). The concept of choice proposed in this submission is worker-focused
referring to “their actual or potential capacity to control the content, methods or
organisaiton of their work” (McCann, 2007, p. 29). Choice is always contextually
mediated; as such the employer is a critical player in the negotiation and enactment of
employee choice.

The working-time of employees within a post-industrial, highly individualized and
contractualised labour market has increased significantly (ABS, 2006; Campbell, 2005).
Research consistently documents the increase in working hours of workers across a broad
array of industries. For full-time, salaried employees, much of the overtime undertaken is
built-into salary packages and bonuses. For workers in the low paid sectors, overtime has
traditionally been tied to penalty rates, time off in lieu (TOIL) or rostered days off
(RDOs). The significant variation and unpredictability that characterizes the current
Australian labour market, alongside the removal of conditions, has limited opportunities
for employee choice. For workers whose working-time is annualized or calculated
monthly it choosing to undertake additional hours and assessing whether such hours are
‘reasonable’ is made difficult without knowledge of projected hours. In these scenarios
employees can be robbed of penalty rates given that at the time of the proposed additional
hours, maximum working hours may not have been completed.

Research also draws attention to the presence of compulsion in mediating employee’s
choices to undertake additional hours. The trend in coupling jobs and rewards with results
rather than time, has led to extended working hours so employees are able to complete
tasks / activities associated with the job (Cambpell, 2005; Rubery, Ward and Grimshaw,
2006). The overtime in these instances is unpaid. Similarly, employees in organizations
expanding service delivery or experiencing skills shortages are frequently required to
undertake other tasks outside their job description or duties, as a means of reducing
wages or filling vacant positions. Again this work is rarely subject to penalty rates,
becoming part of an employees daily work task. This has specific implications for
employees working part-time with additional hours constructed as within the ‘normal’
range of average working-time (McCann, 2007, p. 32).

Choice is predicated on the presumption of information. Integral to the choice of
undertaking overtime is the issue of ‘notice’ (McCann, 2007). This is of particular
importance to many families whose strategies for meeting childcare and other care
responsibilities, leave little room for flexibility. The ‘spontaneous’ request to work
overtime is rarely feasible even if desired. Notice of a day or more could allow for other
arrangements to be made.

2. Flexible working arrangements
The Department’s formal recognition of the need for flexible working hours is welcome.
However, this needs to be combined with recognition that for many employees there is a
need for certainty about working hours and levels of pay. Predictable, stable patterns of
working hours are important for many people attempting to maintain a reasonable
balance between their work and household responsibilities, The importance of these
issues is reflected in International Labour Organisation information on “working time
family measures” that stresses the importance of both predictable and flexible working
hours. Previous Australian research also reflects the importance of such details (Strachan
and Burgess 1998; Whitehouse 2001; Strachan and Burgess 2005). Definitions of
flexibility must also be clarified for the purposes of the Standard. Whilst contemporary
western labour markets, such as Australia, are characterized by flexibility, its principles
and practices are typically defined by employer demands. Provision also needs to be
made for ensuring that all employees have the opportunity to negotiate flexible working
times. This involves the previously discussed issue of choice and autonomy and also
raises the issue of power in employment. Recent research by Preston and Jefferson (2007,
p. 59) highlights the decrease in the number of employee / employer negotiations. Of
particular concern and relevant to this Employment Standard is the fall in the number of
employers negotiating with their employees about varying work hours and rostered days

3. The role played by National Employment Standards
We note that on page 4 of the Department’s discussion paper, significant flexibility is
envisaged for employees and employers to negotiate arrangements which suit their
individual and organizational needs. This flexibility extends to allowing a limited
capacity for variations to National Employment Standard:

       In addition, in limited circumstances, the proposed National Employment
       Standard expressly allows a modern award to deal with a matter that could
       otherwise be seen as modifying or excluding an employee’s NES entitlement…
       (DEEWR, Discussion Paper on National Employment Standards, page 4)

We recognize the need for flexibility between employees and employers. We also submit
that this provision gives good reason for the Department to develop a standard that gives
a high priority to the needs of those most reliant on minimum standards, particularly with
respect to working hour arrangements and payment entitlements. For those in relatively
favourable negotiating positions, the above statement will provide an avenue for tailoring
working arrangements to suit both parties. For others, the minimum requirements of the
National Employment Standard are likely to play an important role and should provide
recognition of the need for employees to have some discretion in their capacity to accept
or reject requests for extra working hours.

It is clear that the National Employment Standards are a key feature for protecting the
rights of employees in the Australian labour market, especially those who work within
the low paid sectors. The above discussion of employee choice, the need for a
comprehensive definition of flexibility and the protection of low paid workers negotiating
capacity, identifies those issues that WiSER considered to be crucial in ensuring the
Standards are fair and effective.
Australian Bureau of Statistics. (2006), People who work few hours, Year Book
       Australia, 2006, Catalogue No. 1301.0, ABS, Canberra.
Barns, A. & Preston, A.C., “Women, Work and Welfare: Globalisation, Labour Market
       Reform and the Rhetoric of Choice”, Australian Feminist Law Journal, vol. 17,
       2002, pp.17-32.
Campbell, I. (2005), Long working hours in Australia: working-time regulation and
     employer pressures, RMIT Centre for Applied Social Research Working Paper,
     No. 2005-2.
Jefferson, T & Preston, A.C. (2007), “WorkChoices and family-friendly working hours:
        an assessment of data sources”, Labour & Industry, vol. 18, no. 1, pp. 47-67.
Jefferson, T and A.C. Preston. (2007a), “Australian Wage Determination and Gender
        Equity: A View from the West” Public Policy, vol 2, pp. 119-129.
McCann, D. (2007), “Temporal autonomy and the protective individualization of
     working-time law: the case of overtime work”, Labour & Industry, vol. 17, no. 3,
     pp. 29-43.
Preston, A & Burgess, J 2003, ‘Women’s work in Australia: trends, issues and prospects’,
Australian Journal of Labour Economics, vol. 6, no. 4, pp. 497–518.
Rubery, J. Ward, K and Grimshaw, D. (2006), “Time, work and pay: understanding the
      new relationships”, in J. Boulin, M. Lallement, J. Messenger and F. Michon,
      (eds.), Decent Working Time: New Trends, New Issues, International Labour
      Office, Geneva, pp. 123-151.
Strachan, G. and J. Burgess (1998). "Towards a new deal for women workers in
       Australia? Growing employment share, enterprise bargaining and the 'family
       friendly' workplace." Equal Opportunities International 17(8):1-13.
Strachan, G. and J. Burgess (2005). "Integrating work and family reponsibilities: Policies
       for lifting women's labour activity rates." Just Policy 35:5-12.
Whitehouse, G. (2001). "Industrial agreements and work/family provisions: Trends and
      prospects under enterprise bargaining." Labour and Industry 12(1):109-129.

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