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Beyond the Fair Work Act: From 'Flexibility' to 'Sustainability' in Australia's workplaces

Speeches in Parliament
Adam Bandt 23 Nov 2010


Speech to Workforce Conference - 23 November 2010


As a former industrial lawyer, and now the Greens' spokesperson on employment and workplace relations, I'm sure few will be surprised by my claim that IR is a centrally important policy and legislative agenda for any political party. However, as I am here today among the like minded, I take it as given that you already understand the importance of a strong and fair industrial relations system.

And given the topic of this conference, some of you I imagine are beginning to question the changes brought about by the Fair Work Act, if not from a political perspective at least from a practical one.

I'd like to use this opportunity to briefly reflect on the Fair Work Act and its predecessors, but also to raise some suggestions about where IR debate goes from here. One of the features of the new parliament is that it offers the opportunity for discussion about issues where the two old parties are of largely one mind but out of step with what many if not most of the population is thinking. Marriage equality is a recent example but IR is no exception.

In our view, whilst it does contain some welcome advances on WorkChoices, the Fair Work Act is the natural outcome of years of eroding employees' enshrined legislative rights for the benefit of employers.

For last 3 decades we've been told so-called deregulation and enterprise bargaining were the answer; that these twin principles of neoliberalism (or economic rationalism as it is sometimes called) would lead to higher productivity and more satisfied workers as this increased productivity was shared among all.

This commitment amongst the major parties to a neoliberal industrial relations policy culminated in the passage firstly of Workchoices and then the Fair Work Act.

The reregulation of the labour market over this period lead to a number of outcomes: let me touch on three.

1) Workers and their families are bearing the risk of a highly flexible and increasingly casualised workforce

The increased flexibility of work has led to a situation where there is no standard model for how households and individuals interact with the workplace. The number of single income households has decreased significantly over the last twenty years; there has been a concurrent increase in dual income, one and a half time and no income households.

Many of the new jobs created through the 90's and early 2000's were in low paid industries, such as retail and hospitality, where casual and part time positions dominated.

Those in casual and precarious work bear the most risk as a result of these flexible arrangements.

Casual workers, who can work for a company for many years without one day of paid sick leave, one day of paid annual leave or paid public holiday, are bearing the burden of what I refer to as 'flexibility from above'.

As Sydney University's Workplace Research Centre has recently found, Australian workers have absorbed more financial, social and economic risks.

Now, flexibility is a double edged sword - many of us enjoy the benefits of flexibility. I for one tried to juggle part-time work as a lawyer while completing my further study, by no means a perfect experience but one reflective of the desire of many of us to do more than work until we drop.

And that is exactly the challenge that I suggest will be important in the next wave of industrial relations discussions: how we ensure that people have control over their working lives so that flexibility works for them, how we move from flexibility to sustainability.

2) Many Australians are working far longer hours than they would like to, and some are working fewer

Some important research emanating out of University of South Australia reveals some interesting findings. Broadly speaking, it shows a mismatch of hours desired to hours worked.

Even taking into account the loss of income, a third of all Australians would like to work on average nearly six hours less per week. While working mothers make a large proportion of this figure, it is interesting that almost half the fathers in couple households report a desire to work less.

60% of Australian women and nearly half of all men feel consistently time pressured.

The majority of working Australians say that despite the benefits of employment, work still has far reaching negative impacts on their lives in the way it restricts the time they can spend on themselves, families, friends and communities.

The 40 hour working week is, for most, a fantasy. We are working harder and longer than ever before but have less to show for it.

So who then, is benefiting? Who is profiting from this increased 'flexibility from above? Is it really just perhaps a lengthening of the working day?

3) And this leads to the third outcome of our love affair with neoliberalism - business is reaping the lion's share of our increased productivity and longer hours

Wages as a share of GDP has fallen from a high of 62% in 1983 to just over 52% in 2008. This is a massive redirection of wealth away from workers pockets.

The rate of productivity rise has eased in recent years, but looking over the last two decades it is clear that productivity growth his significantly outpaced wages growth. (And as I have referred to earlier, the gains haven't translated into better working hours.)

To this one must add that in 1983 household debt was around 35% of household income. By 2008, this had increased to around 150%. And at the same time, we have a year on year increase in the number of workers reporting that they find it hard to get by on their income.

This is a picture of unsustainable tensions between work, life, income and debt. Something is likely to give.

But despite these increasing pressures, it is notable that during the recent election campaign, industrial relations didn't feature anywhere near as strongly as in 2007. The Your Rights at Work campaign - one of the most successful campaigns in recent political history - was absent. To the extent industrial relations appeared, it was a fear campaign against Tony Abbott. For all intents and purposes, the Fair Work Act was not criticised at all in the public sphere during the election campaign.

In fact, the only time industrial relations appeared during the election campaign was in the form of a fear campaign against Tony Abbott. This prompted Tony Abbott to announce that he would not make any changes to workplace relations legislation. There then followed a further push to show that there were nonetheless significant changes he could make without requiring legislative amendment. The ACTU announced that it had 'found 198 ways that Abbott could make changes through regulations or ministerial power'. From this we were asked to conclude that workers shouldn't vote for the Coalition.

But in fact the ACTU analysis had demonstrated potentially how weak the Fair Work Act actually is. It showed that so many aspects of protection of rights at work can be undone with the stroke of a pen. This is a fundamental concern with the legislation: it embodies a much broader trend away from broad based guaranteed protections and towards much more contingent forms of regulation. Why didn't a Labor government enshrine basic protections for workers in legislation and thus make these protections harder to remove? And why wasn't Labor being criticised for it?

While a robust debate on the merits or otherwise of Fair Work would have been a welcome development in the last election campaign, perhaps more importantly what was overlooked was any discussion about the impact of IR laws and employment policy on the everyday lives of Australians.

Working hours is still a barbeque stopper, but it seems no one was holding the front page to write about it.

We need to talk again about the importance of a fair and community focussed industrial relations system to living a good life.


Industrial relations academics and policy analysts have for some time been making a salient point.

We can no longer look at IR policy and laws in isolation.

More than any other policy area, IR has the capacity to reach into our homes and our intimate relationships with deeply felt consequences.

It is also inextricably interconnected not only with areas within social policy but other policy areas - transport, urban planning and immigration, to name a few.

The intersection between our working lives and our non-working lives has never been greater.

This is why, despite years of falling union membership, the campaign against Workchoices was so successful. Even non-unionised workers recognised that the attack represented by Workchoices was not simply about pay or conditions but rather one that cut to the core of who we are as individuals, families and communities.

It was Workchoices' perceived capacity to impact on who we are and what we do outside of work that was so offensive to so many Australians.


As a nation we must heed the advice of these academics and break out of our narrow thinking around IR and instead begin to think about a holistic approach to employment policy and practice.

The frenetic pace of the modern workplace, the time pressure that the majority of Australians are feeling and the financial squeeze on workers as more and more of our productivity gains are redirected away from wages all call for a reordering of workplace relations and employment policies around the principle of sustainability.

This means an industrial relations system where employees are encouraged and supported in their lives outside of work.

A system where control over hours is exercised from the bottom up.

A system where employees have greater control over their hours and the fruits of their labour - their productivity -  would lead to better lives as we begin to structure our paid work day with the emphasis on our caring and community commitments and responsibilities.

This is not a throwback to the past: control over our own working lives will not necessarily come through greater prescription. But we must also put a persistent myth to bed about so-called deregulation. The forces of neoliberalism were the ones who wrote the most legislation and extended the law's tentacles deeper into the workplace relations system. The WR Act was significantly longer and more complex than its predecessors. Deregulation was always somewhat of an oxymoron. The real question is what kind of regulation we want, what objectives it should serve.

In my view, we should be looking at intervening to redress the obvious consequences of the last 30 years, namely that we have less control over our lives than before, that there is a mismatch between desired hours and hours worked, that debt is rising, and that this is unsustainable. 

How might we then regulate? I offer no today no formal Greens policy prescriptions. But in the spirit of the new openness in public discussion, I suggest a number of avenues that could be explored:

  • i) We could give people an enforceable right to work shorter working hours.
  • ii) Alternatively, we could allow employees to start sharing in the productivity gains by allowing them to take gains in the form of fewer hours. That is, their hourly wages could perhaps rise by a basic cost of living increment, but any additional increase be foregone in lieu of working fewer hours. This could be an enforceable right that could be exercised in bargaining.
  • iii) And of course, there is the obvious solution of legislating across the board for a shorter working week, and I note in this respect that the research shows a growing fondness amongst workers for the figure of 35 hours.

All of these ideas have pros and cons. For some, the cons may make them not worth pursuing. And there may be other policy suggestions that haven't been considered. But I suggest that it is around these questions that discussions needs to happen in the next period.

And of course addressing these questions involves dealing with the corollary issue: how do we address the situation of those who aren't working as much as they would like? The second string to the debate must be how to have a fairer spread of hours across the board. On figures from only a couple of years ago, full time workers worked an average of 44 hours per week and 29% of them wanted fewer hours of work. But part-time employees worked an average of 21 hours per week and 1 in 5 of them wanted to work more.

Despite what the government may have said to you at this conference yesterday, I am not proposing an across the board compulsion on us all to work less. I am proposing instead that we think about how people can work less if that's what they want, and how people can work more if that's what they want.

I also note that industries and workplaces are already offering their employees greater control over these important areas. However, like most positive changes in industrial relations, the uptake of these provisions have been quickest in highly skilled or white collar industries.

Therefore we must absolutely ensure that a move to more sustainable working conditions is not only limited highly skilled and white-collar workers. Indeed, it is particularly important that we continue to fight sustainable and equitable conditions for workers in low paid and unskilled employment. And we must also begin dismantling the barriers many of these workers face to sustainable and fulfilling work.


And this brings me to a second principle for improving the lives of workers and the community as a whole - the development of inclusive workplaces and employment practices.

Many in our community face significant barriers to securing sustainable employment. These barriers are pervasive and insidious. They affect those living with a disability, those with low educational attainment and recently arrived refugees and migrants. While these people do undertake paid work, it is often in industries and workplaces with little regulation and their duties are frequently mundane and often below their skill level. In other words, these workers are not fulfilling their potentiality and in turn are unfulfilled. And more importantly, it is very unlikely these individuals will be given the training and support to move into professional, secure and full time employment.

Other groups of people are affected by exclusive employment practices at particularly challenging times over the human life course, when we should in fact be offering greater support to stay in employment. This includes when employees become parents or carers or their own elderly parents.

Supporting these workers to find and maintain sustainable and fulfilling employment should be a priority of any Government. A commitment to inclusive workplaces would ensure that all Australians are living out their full potential and that we have happier and healthier communities.

At a minimum, as a society we should be aiming for guiding principles that include that:

  • - Training in all professions and trades should be available to every member of society
  • - All trades and professions should be open and supportive for both men and women
  • - Workplaces are be accessible to employees with disabilities
  • - Refugees and newly arrived migrants be presented with real pathways to sustainable employment that build on their existing skills and qualifications
  • - Employers encourage both men and women to fulfil their caring responsibilities and to cultivate their life outside of the workplace

Today, I am going to finish by expanding on two of these pillars - sustainable employment for refugees and migrants and employment provisions that encourage both men and women to fulfil their caring responsibilities.

Migrants and refugees

In my electorate of Melbourne, it is notable how many migrants and refugees - especially from Africa - possess high levels of qualifications but are under- or unemployed.

Recent research from NATSEM and AMP is illuminating. The unemployment level in tertiary educated migrants from non-English speaking countries is four times higher than their Australian born, tertiary educated counterparts and double the level for tertiary educated people from English speaking countries other than Australia.

If you are tertiary educated migrant from a non English speaking country and you are lucky enough to have a job, you are twice as likely as an Australian born tertiary educated person to be working in a low skilled occupation.

While these figures indicate many things, I would like to suggest two key conclusions. The first, that Australian employers are cautious about taking on employees who are perceived to require special support in the workplace, especially in more white collar or more highly skilled professions.

The second - migrant employees and potential employers do not have access to adequate support in order to transition to sustainable, long term employment. This includes proper recognition of their qualifications obtained overseas and accessible bridging courses to allow them to work in an Australian context.

These are relatively simple problems to address. However, what is a simple policy gap has the capacity to turn into systematic and entrenched disadvantage.

However, where the traditional market has failed refugees and migrants in Australia, new forms of enterprise are appearing in this gap.

I am also lucky to be the Federal member for what I believe is the social enterprise capital of Australia. Social enterprises such as the Social Studio in Collingwood, which teaches fashion design and textiles to young refugees, is filling the gap vacated by Government and private enterprise.

What I particularly like about this enterprise is the way it has turned the traditional notion of training for vulnerable people on its head. Instead of funnelling these people into low paid and low skilled occupations, the Social Studio is saying to these young refugees that they have as much right to a fulfilling and sustainable career as young Australian born students.

Again, particularly in my electorate but across the whole of Australia, migrants and refugees have made a significant contribution to this country.

We must continue to support them in this fine tradition.

And I think we should explore further the role of self-organised social enterprises as a space for providing a place for sustainable engagement.

Family and community responsibilities

As I spoke about before, the composition of work type across households has changed dramatically in the last twenty years as more women moved into the workforce.

The significant drop in the number of single income households is due to this migration and I don't think anyone today would argue that this has not been a positive thing.

However, it also mean that there is anywhere between a FT or PT equivalent hours less per household that is available for non paid work related activities.

This means less time for child care, less time to care for elderly or unwell family members, less time to spend with friends or on leisure activities and less time for political or community engagement.

Most of us, with very few exceptions, will have caring responsibilities at some point in our lives, whether for our own children, our elderly parents, an ill partner or close friend. One of the greatest challenges for employment policy is encouraging employers to support their workers in these important responsibilities.

The Fair Work Act enshrined the right of parents of pre-school aged children to request flexible working arrangements. While this was heralded as a victory for working parents, many academics, policy analysts and indeed working parents were left scratching their heads. Leaving aside the fact that employers can simply refuse such flexible arrangements, the big question parents are asking is why this only applies to families with such young children? Pre-school aged children attending day care whilst their parents are working can be dropped off before work in the morning and usually picked up anytime until six, and later at some centres. School-aged children finish around 3pm, and even taking into account some formal after school hours care, there is still a gulf between a parent working something approximating full time hours finishing their work day and being able to pick up their kids.

The Fair Work Act does not protect a parent's right to care for their children, let alone fulfil their other caring responsibilities. Indeed, it is only thanks to the work of my predecessor in this portfolio, former Greens IR spokesperson Senator Rachel Siewert, that those caring for a family member with a disability have the right under the Fair Work Act to request flexible working provisions but there is no guarantee this may be granted.

Unsurprisingly, men request flexible working provisions less frequently than women, but interestingly are more likely to be refused.

Encouraging men to spend more time caring for their families and engaged with their communities is a priority for any inclusive industrial relations policy.

A more sustainable solution might be putting an onus on the employer to offer flexible working arrangements to working mothers and fathers of children of all ages. Of course, we need safeguards: many benefits such as rosters and penalty rates are enshrined in collective agreements and these benefits would dissolve if they could be bargained away individually. But if we can have real flexibility driven from below, I am confident we can start putting working lives on a more sustainable footing.


Inclusive and sustainable work practices are ones that support all employees in their outside of work lives and responsibilities.

People working long hours are unable to spend time enjoying their family and friends and their lives outside of the workplace. While we may be able to do this for short bursts, in the long term this is neither healthy nor sustainable for the individual and their family and community. Some may like working what others would consider excessive hours, and we need to deal with that respectfully. But when thinking about the organising principle for our industrial relations system, we need to move from flexibility to sustainability.

Work practices that are sustainable will build stronger communities and better families.

Those of us who want to ensure that we are all able to exercise more control over our working lives so as to make our lives sustainable will continue to engage in conversation to fully flesh out our blue print for a green Australia. But I believe the questions we are asking are the right ones.

As we translate these principles into policy and help take the IR debate into the 21st century, The Greens will also continue to push for the basic principles of equality and social justice to be enshrined in law.

We remain resolutely opposed to having differing standards of workplace laws for differing groups of people, and thus we oppose the ABCC. I note that the Ark Tribe decision is due to be handed down on Wednesday, and whatever the outcome, The Greens are committed to pursuing the repeal of the BCII Act. We also lend our full support to the equal pay case in the SACS sector and will push to ensure sufficient funds are made available to fund work equally.

And if there ever was a time to reflect on just how far workplace protections have eroded in our era of flexibility from above, I conclude by noting that this year Xmas day falls on a Sunday and that there is a suggestion people may not get holiday loading if they are rostered to work that day. And there is no guaranteed right to refuse work on that day.

Work - yes. Fair - no.



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