Submission to 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 or PO Box U1987 Perth WA 6845 Phone: 08 9266 7900 Fax: 08 9266 3368 Email: Alison.Preston@cbs.curtin.edu.au WiSER 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 Contact: 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 Email Alison.Prestona@cbs.curtin.edu.au 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 Humanities. 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: www.cbs.curtin.edu.au/wiser Introduction 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 off. 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. Conclusion 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. References 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. 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