‘Antiquated, unfair, confusing, and unnecessary’: Unions slam employment standards

In Friday’s (1 May) hearing regarding the operation and adequacy of the National Employment Standards (NES), Australia’s unions sought changes to keep pace with a changing employment market.

Michele O’Neil, president of the Australian Council of Trade Unions (ACTU), began the proceedings with an overview of the main issues affecting workers under the NES.

The application of NES provisions, she said, was being obstructed of “their intended operation and depriving workers of minimum entitlements”. Especially prevalent for shift and roster workers, she noted how many are denied an extra week of annual leave entitled under Action 87 because their shift patterns were deemed insufficiently regular.

She highlighted the need for a simpler and fairer test that would remove technicalities and inconsistencies.

Another outdated provision she identified was the exception that often allows employers to avoid redundancy pay based on “ordinary and customary turnover of labour”, a practice that was first introduced during the early 1980s recession. This functioned as a get-out-of-gaol-free card for employers by allowing them to argue that terminations are common or usual, and deny redundancy pay to help families survive at a time when they need it most.

This model, O’Neil argued, was a technicality that protected businesses from paying redundancy to contract or short-term employees, but it remains to have a profound impact on the lives of working people. She said that employers already have the right to make a position redundant if they no longer require the job, but they should not be able to so easily flout entitlement obligations.

As referenced in the ACTU’s initial submission to the inquiry and a recent media release, it was argued that the NES should adapt to keep pace with the modern world when it comes to entitlements and reflect evolving social norms. As such, the union collective’s main demands revolved around five weeks of annual leave, reducing working hours from 38 to 35, and introducing the four-day work week.

“Shorter working hours are good for workers and good for employers, deliver improved productivity, and allow working people to live healthier and more balanced lives,” O’Neil said.

This, O’Neil projected, would give back workers time – especially from the average four and a half weeks of extra, free unpaid leave Australian workers perform.

“The time is right for other new forms of leave to be recognised as minimum standards,” she said.

Gerard Dwyer, national secretary of the Shop, Distributive and Allied Employees Union (SDA), highlighted that “Australian annual leave entitlements remain unchanged since 1974”. Since then, he said, there have been numerous impactful changes, including the extension to seven-day trading, the intensification of work – especially in the last five to 10 years – and productivity growth that dramatically outstrips wages.

Retail in particular has seen a 26 per cent productivity growth since 2007, and real wages have contracted by 1 per cent. Dwyer said: “We have a 27 per cent gap, and what we refer to as the social contract, where productivity and wages should move hand in hand.”

The impact of inadequate annual leave, he continued, has been felt in “missed family time and social connection”. For retail, shift, and weekend workers, Dwyer highlighted, the losses “are not occasional, but cumulative”.

He said: “An additional week of paid annual leave represents not a discretionary benefit, but a practical support.”

“Revising annual leave standards is therefore best understood as a preventative, structural reform, one that recognises the realities of high intensity, demanding retail work, and helps sustain long-term participation, productivity, and social inclusion”.

On roster justice, Dwyer said: “Workers face late roster changes regularly, short shifts and unpredictable hours. This lack of certainty undermines income stability, the ability to plan caring responsibilities – especially childcare – study, and second jobs.”

It also undermines “the capacity to identify and challenge underpayments where they’re occurring”.

In addition, this uncertainty, ongoing pressure, and fear of losing hours discourage young and casual workers from raising concerns about rosters.

“They simply suffer in silence,” he said.

“We need advance notice of rosters, we need stable rosters. We need compensation for late changes or the cancellation of shifts. We need the capacity to interrogate computer modelling, which delivers rosters, and we need the ability for human management to actually override those algorithms.”

Australian Services Union (ASU) Victorian private sector branch secretary Imogen Sturni explained that the feedback the union received regarding the four-day work week “is overall pretty astonishing, and I say that because it’s consistent with the result of every other four-day work week trial, both here and across the globe”.

She said: “Every time participants, both workers and, importantly, business, consistently report improved satisfaction for employees, better work/life balance for employees, improvements in overall health and wellbeing, and often, a reduction in sick leave or unscheduled leave, and importantly, an increase to productivity.”

While referencing the potential for “a shaky start” to such experiments, Sturni assured that, more often than not, the organisations in these cases didn’t have the time or the groundwork to ensure the trial worked for their workplace.

She acknowledged that the four-day work week “does require a change to work, and crucially, we see this as a fundamental role of organisations working together with management and employees to structure work in a way that works for the needs of that organisation”.

“It is going to look different for different workplaces and different industries, and that should be a good thing, and it’s something business already does everyday. We see organisations working with employees as a key part of the four-day work week success,” she said.

In addition, Sturni noted that “in lots of ways, the concept of a four-day work week isn’t a new thing. It’s something that regularly happens in work groups across the country, but in different names. There’s plenty of shift-work and roster groups who already allocate their hours around a four-day work week, and it allows employees to have adequate rest time and life outside of work.”

“And it’s been working for decades,” she said.

“To review productivity simply through a lens of hours present is doing ourselves a disservice.”

Additional comments were made from representatives of the Australian Manufacturing Workers’ Union (AMWU), the Australian Nursing and Midwifery Federation (ANMF), and the United Workers’ Union, covering similar issue, including the calculation of personal leave entitlements, annual leave for shift workers, and redundancy pay – all with the common denominator of protecting employees’ work and their wellbeing under the National Employment Standards.

The next hearing from the standing committee on employment, workplace relations, skills and training is set for 5 May.

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