DWYER, Mr Gerard, National Secretary-Treasurer, Shop, Distributive and Allied Employees Association [by audio link]

HEATLEY, Ms Teagan, Member, Health Services Union, [by video link]

WILLIAMS, Mr Lloyd, National Secretary, Health Services Union [by video link]

[09:33]

CHAIR: I welcome representatives from the Shop, Distributive and Allied Employees Association and the Health Services Union, who are all appearing via videoconference. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I'd like to invite each union to make a short opening statement—two minutes or less would be appreciated, so we can get straight into questioning. I'll then hand over to Labor to ask questions. I'll start with the SDA.

Mr Dwyer : Thank you, Chair. As I noted, I represent retail, warehouse and fast-food workers, who, as people would know, were on the front line, serving the Australian community, during the height of the COVID pandemic. The retail workforce, in particular, which represents almost 10 per cent of the Australian workforce, is at the front end of the economy in terms of consumer demand and the need for Australian consumers to feel secure and to feel as though their wages are actually growing, in terms of the need to drive the economic recovery.

The COVID recovery will rely on consumer confidence and people's sense of security—not just in our industry but right across the economy. Other industries spend their earnings in our industry, and we rely on a sense of job security and strong wages across the economy, if the livelihoods of members in my industry are to actually be maintained and, hopefully, improved. In a broader sense, low-paid workers and retail workers—who are generally in lower-paid categories—are really important in driving demand in our cities and regional centres, because those types of workers tend to spend most of their earnings.

We, as a community, need to ensure that our policies are promoting greater job security, which will then drive greater demand and therefore drive wages growth. So that's the key prism through which we are looking at this and any other legislation currently before the parliament.

CHAIR: Thank you. And can I have one opening statement, please, from the Health Services Union?

Mr Williams : Thank you, Chair, and thank you for the opportunity to appear today. As noted earlier, I appear today with our member Teagan Heatley. Tegan is in Tasmania and would like to speak about her experience of her job and wage insecurity.

The bill works from a series of falsehoods: that employers are not already casualising permanent work on a whim, that employers need even more flexibility with rosters and that employees are on an even playing field with their employer. I participated in the working group discussions with Minister Porter and various employers. I will reiterate to the committee what I outlined to the minister.

When health and care workers don't have secure work, our most vulnerable community members miss out—people with a disability, older Australians and those with mental illness. Insecure work compromises continuity of care, access to quality care and care that gives them dignity. For the workers experiencing some of the most physically and emotionally arduous conditions, this is devastating. Our members take great pride in their work and should be recognised with jobs that allow them to carry it out at the highest possible standard. In the face of the pandemic, the impact of people having to work multiple jobs in aged care, just to make ends meet, had tragic human consequences. I urge the committee to heed the stories of the workers about what it's like on the COVID front line and how workplace laws interrelate. Through the IR consultation, the government and employers paid no regard to the plight of the vulnerable care sector, where these changes will make things worse. The bill does nothing to address the reality faced by these frontline workers. In fact, it places them at greater risk. The changes will lock in more insecure casuals and minimum hours in part-time work and it will lock out protections in bargaining—all this at such a fragile time. It's hardly what these workers need or deserve, those who are so critical to our society and economy. The bill should be rejected.

Senator PRATT: Ms Heatley, in the context of your experience in the workforce, what do you think the impact of this legislation will be? Tell me about your experience.

Ms Heatley : I'm a community care worker in Tasmania. I work with older Australians and people with a disability. I've worked as a community carer since 2010 and have been with my current employer for a bit over three years. I have a permanent part-time contract for 30 hours a fortnight, but, from the day I started this job, I've worked 76 hours a fortnight. It was just through an ongoing, regular agreement over the three years that I got the extra shifts. In July my partner was diagnosed with stomach cancer. He had to undergo major surgery and treatment. He has been in a bad way since, physically and mentally. He really wants to get back into the workforce, but it's very hard for him. He has been looking for jobs. My employer gave me one week of carers leave. They reject my requests for the occasional day off to take him to follow-up appointments. He either misses those or we have to reschedule and wait again.

In October, my employer told me there were no more extra hours for me. I went from 38 hours a week back to 15. When I asked why they had done this and whether I had done something wrong, they told me, 'Not at all; you are great, but we just want to hire more people to help cover sick leave.' This didn't make sense to me. I asked, 'Doesn't the fact that I've worked 38 hours a week regularly for three years count for anything?' They said: 'No. Only the signed contract offer counts.'

Since October, my roster has kept changing. At the moment, they are using me to cover the sick leave of one of the people they hired for that exact reason. That means my roster will change again in May. My employer wants me to be more flexible, and I'm trying my best because I simply cannot afford to lose any more work. Since my partner got sick, we only have my wage to pay our mortgage with. We have had to apply for financial hardship. All the power is with my boss. My pattern of work and willingness to help them over the years have turned out to mean absolutely nothing. It's not accurate for the government to say that employers need more flexibility or are hard done by. This is completely out of touch.

Senator PRATT: Thank you. That's very much appreciated. Mr Williams, in the context of bargaining, pay and conditions and things like the casual conversion clause, what would the impact of this bill be on workers like Ms Heatley?

Mr Williams : The casual conversion, as it's currently constructed in the bill, largely reflects many of the casual conversion arrangements that are available in this country now, and very few workers get to convert, because the employers are able to construct their circumstances to avoid those arrangements. So we see no benefits from the casual conversion to enable people like Teagan to gain more secure work. I think Teagan's story graphically illustrates the fact that you can work consistently for three years, effectively in a full-time job, and then all of a sudden be converted back to 15 hours per week.

On the bargaining side, the bill undermines the requirement for proper process around bargaining. It is hard enough for aged-care and social-care workers in disability care to bargain with their employers now. They are currently funded by government, and the employers tend to simply revert to the old mantra: 'Well, it's not in the funding, so we can't bargain around it.' But what they will seek to do now is undermine the bargaining process, because the bill allows proper process to be undermined. It is proper process around the issuing of an NERR, proper processing around ensuring compliance with the NES and proper process around information for the workers so that any bargained agreement, be it with the employer directly or be it through the union, does not have to be properly explained to the employees. There are also ongoing issues around the BOOT in terms of ensuring that it meets the award standards in this sector. Most agreements in this sector are not far above the minimum award and the minimum award is everything for these workers.

ACTING CHAIR: Thank you. That certainly puts that in context. I'll ask my colleagues if they want to jump in.

Senator O'NEILL: First, can I say thank you to you and, through you, to your workers, for they are indeed the frontline workers. I know all senators around the table would be seeking this first opportunity, as we return to parliament, to say what an extraordinary job health workers and retail workers have done in keeping us going throughout COVID.

Mr Dwyer, you've heard Mr Williams' response to the concerns about the new provisions regarding bargaining with respect to pay and conditions. We also heard from Ms O'Neill, recently about the changes to the notice period for employers about informing their workforce they have begun bargaining. It was quite shocking to me that the process could get started—giving somebody a head start, like a cheat in a race—and then, once they have all started, say, 'Okay, you can catch up a month later.' I'll ask you, Mr Dwyer, to speak to those particular matters.

Mr Dwyer : In relation to the bargaining, I think Mr Williams categorised it perfectly in that it actually undermines proper process. Of course the unions and employers want a process that delivers timely decisions, but what the bill is actually proposing undermines some key elements of the process which is designed to protect workers in a bargaining situation. Like in your comments, the capacity to actually not inform employees until 28 days after notification does give parties a head start. Unfortunately, I think, it's a risk of being able to deliver to a workforce a fait accompli. It's a fait accompli that, when you look at other aspects of the process, could well undermine existing standards. The default of 21 days for the Fair Work Commission, I think, creates a real risk that proposed agreements are not properly reviewed and assessed. The other concern there is the proposal that deals with the interaction of the NES, the National Employment Standards. There is a proposal to repeal section 186(2)(c) and the Fair Work no longer needs to be satisfied that the terms of the agreement do not contravene existing NES provisions. I actually think another key problem with the process is it appears to water down the requirements to fully and comprehensively explain the terms of an enterprise agreement to staff. They are some of the headline problems that we see with regard to bargaining provisions as proposed and their capacity to undermine proper process.

Senator O'NEILL: Can I put this question to both representatives—that is, Mr Williams and Mr Dwyer. We've heard some incredibly distressing evidence about current challenges that some workers face. You made comments in your opening remarks about the economic impact of embedding these changes, which seems to be the purpose of this piece of legislation. What do you think is the impact of the provisions within the bill that will lead to wage cuts or prevent efforts to increase wages as a consequence of the stagnation that we've seen?

Mr Williams : In terms of undercutting wages, the undercutting of wages to the greatest extent occurs in the aged-care, disability and social-care sector through insecure work. In Teagan's situation, that plays out by her being provided with an employment contract for a minimum number of hours. Teagan's situation goes to the bill wanting flexibility around part-time work. It's already being played out and abused in Teagan's situation, where she reasonably expected, through her previous three years of experience, to continue to work a significant number of hours but was then taken back to the minimum.

What we see here is an opportunity for employers to exploit the provisions around minimum hours. Inevitably, the minimum becomes the effective maximum. Effectively, it will casualise part-time employment to the extent that workers will not know from day to day what their income will be. It will be greater casualisation and that, in itself, drives down wages. That's let alone the incapacity of this sector to bargain because of the funding arrangements across aged care and disability services. Given that the funding arrangements are directly from government, it is a fact that disability and aged-care workers have low wages because of their inability to bargain above that funding envelope.

Senator O'NEILL: So there's a natural pressure there that you've described, Mr Williams, which is particular to your sector. That sectoral difference is important. Mr Dwyer, would you like to speak about how the economics of the bill could really stagnate wages in Australia? Could you expand on your opening comments about the need for consumer confidence and capacity to spend?

Mr Dwyer : Thank you, Senator. As I said, that consumer confidence is essentially built on a person's sense of job security. I will just frame my comments about part-time work within some specific comments inside our industry and then broader comments about what the bill seeks to do with part-time employment generally.

Our position is that part-time work should be something that is dealt with at the industry award and enterprise agreement level. One of the senators alluded previously to Woolworths and the capacity to grow part-time and secure employment in that company, and that is true. But what people need to understand is that the provisions arrived at through bargaining with Woolworths actually build in additional security.

If I'm a part-timer, my average hours worked over the previous year, including additional hours that I may have worked, are actually reviewed and they become my new base hours. This year I might be a 20-hour part-timer at Woolworths and I work additional hours through the course of the year. At my review in 12 months time I can actually have 25 hours locked in, and the year after it might be 27 and so on. So there's actually a mechanism to build in additional security.

Unfortunately, the bill doesn't actually contain that provision and that is a problem. That's the first problem and I think it's indicative of the need for part-time work to be dealt with by parties back in the award system and back in bargaining. The bill makes reference to 12 identified modern awards, but it then goes on to say that the minister, by regulation, can actually extend that group of 12. That means we have the capacity to have part-time opened up right across the economy—perhaps even in industries where it's not appropriate. So it should be back with the industrial parties in the award and bargaining system. And those industries which do have part-time and are able to manage it—bargaining in a positive sense—should be allowed to continue to do so.

I'll conclude with this comment on that growth of part-time. Where part-time employment is appropriate, wanted and properly overseen, that is good. Unfortunately, though, we see one in six workers in our industry, according to ABS figures, who would actually like more hours. And we don't find them working, necessarily, in unionised workplaces. That is a figure right across the industry. So we need to be careful in how part time is applied, and, again, I say it should be back with the award and bargaining system and not done through legislation that has the capacity to open it up into areas where it's not necessary, not needed and would actually feed greater job insecurity.

Senator O'NEILL: We've heard from you, gentlemen, that job insecurity will be on the increase if this bill passes, and wages are likely to go down if this bill passes. Is that a fair characterisation of what you've just said to us?

Mr Williams : Absolutely, it is. We're currently seeing that, if Teagan's situation is legitimised right across the economy, it is a race to the bottom.

Mr Dwyer : I would concur with those comments. Again, if we are going to see consumer demand-drive COVID recovery, we need greater sense of job security, not less.

Senator O'NEILL: Consumers can't be very demanding, they can't get out and spend money if they actually haven't got a wage packet that's growing. If it's shrinking that's a problem, isn't it? That's it in a nutshell.

Senator PRATT: In the context of a casual conversion clause where you've got casuals that are going into purported permanency but at the same time you've got simplified additional hours agreements where those who were permanent but part time don't necessarily have control over their extra hours and how they are negotiated around, what does that mean in the context of the government's arguments about the purported benefits of this bill? It seems somewhat contradictory. Also, in relation to particularly vulnerable workers—culturally and linguistically diverse, those with disability—how do those NERR changes impact in that context as well?

Mr Williams : Perhaps I'll go first. In terms of the casual conversion, the arrangements within the bill—you're able to drive a truck through them to avoid them, particularly the requirement that the previous six months' work pattern has to be effectively consistent. Right across the health, aged-care and disability sector, work patterns are always inconsistent. It's the nature of the work. So we see the conversion arrangement as being absolutely avoided across the health and social-care industry.

Senator PRATT: You've taken simplified additional hours which means that those work patterns might not be as regular and yet the casual—

Mr Williams : No.

Senator PRATT: And the casual conversion clause, of course, means casuals won't have consistent work hours, and they won't be moved into something that's consistent in any case.

Mr Williams : That's correct. In alluding to that, the employer can act to reduce people back to a low level of hours. The employers can do things to avoid all of those provisions, and that's what occurs today in terms of the conversion clauses that are currently within modern awards. Legislating that across the economy will only strengthen the employers' ability to avoid those terms.

Just in terms of the NERR, there is no requirement for information to be provided to linguistically diverse workforces in their own languages. Again, that will ensure workers simply don't know their rights, and it will be harder for workers trying to navigate agreement approvals and conversion clauses.

Senator DAVEY: I have a couple of questions for, I think, probably the SDA, but you're both welcome to answer. We see today that research by the Business Council of Australia has found that workers on enterprise agreements are better off than workers on awards. Would you agree with that?

Mr Dwyer : Similar to the HSU, in our industries enterprise agreements—yes, they are above the award, but it is only a moderate extent to how far above. Yes, I would agree that enterprise bargaining has the capacity to deliver better outcomes both for those people working under that agreement and also for the business itself. I think at the heart of this it does mean that bargaining is a process that does have to be properly overseen. I refer to my earlier comments in terms of the bill undermining the process required to actually register an EBA, as Mr Williams has just referred to there, and with regard to properly explaining entitlements to a workforce. Those are real concerns, but, in principle, bargaining can work if there's proper process and it should deliver better outcomes.

Mr Williams : Enterprise bargaining in the health and aged-care and disability sectors is only notionally above the award. It's certainly not the case with wages. Bargains usually reflect the award wages, but additional things that are not in the award, things like family violence leave or rostering, will be picked up in the bargaining process. But usually wages are aligned to the award because of the funding that I spoke about earlier.

Senator DAVEY: Do you agree that the current enterprise bargaining system is broken or there are areas where it does actually need improvement?

Mr Dwyer : I think I said in my earlier comments that unions and employers do want a system where we can get, for example, timely decisions. We want decisions that are consistent. But in terms of addressing some existing problems, our problem with this bill is it actually isn't targeted at some of the issues that the industrial parties face today. Rather, it actually goes to things that are not a concern and that do undermine the process. I go back to the issuing of the NERR some 28 days after the commencement of bargaining. I go to the requirements, or lack thereof, for proper explanation. I go to the provisions that talk about the interaction of the NES with the agreements, and there are some concerns there. I think there is always a capacity to improve on a system. Unfortunately, this bill is not doing that.

Mr Williams : I would say that for the health and social care sector bargaining is broken, but not broken in the areas this bill seeks to address. It's broken in the areas where health and aged-care workers and disability workers can't bargain together across their sector and they can't bring the funder to the table. So, it's broken in a different way for health and community service providers.

CHAIR: I think Senator Lambie may have questions. If not, I'm happy to give the call back to Labor.

Senator LAMBIE: I do have some. There were a lot of hours put into these working groups. Were you part of the working groups for the Attorney-General?

Mr Dwyer : Yes, I was.

Mr Williams : Yes, I was.

Senator LAMBIE: How many hours were you involved in those working groups?

Mr Dwyer : There was an enormous amount of time. Offhand, I couldn't put a figure on that, but, as you know, we had several meetings across several months involving a large number of people, and the meetings would go for many hours. And then obviously there were the hours that were put in by the parties outside the meeting rooms, where research and analysis was undertaken.

Senator LAMBIE: After all those hours you spent around the table, is there anything in this bill that resembles anything at all that you people discussed that were important to you?

Mr Dwyer : Unfortunately the bill, in fact, bears little resemblance to what we discussed in the working groups.

Mr Williams : From our position, the bill does reflect things that were discussed and the bill delivers everything the employers wanted in those discussions.

CHAIR: That concludes your evidence here today. I thank you very much. You are free to go.