The Federal Court has again ruled invalid the widespread practice of hiring permanent staff in stable work patterns, but labelling them a ‘casual’ to avoid paid sick leave and holiday obligations. The legal principle — substance over form — is simple: If an employer and employee have a mutual expectation of an ongoing, regular pattern of work, it is not casual employment, regardless of any false label the HR department stamps on it. Business lobbyists are apoplectic because their members have exploited this ‘sham casual’ scam for decades, but now the $8 billion back pay bill is catching up with them. Needless to say, the Morrison Government is already considering passing legislation to retrospectively legalise this wage theft. (Despite the shrieking of the usual suspects, none of this is really new. The Federal Court made a very similar decision about the same company in 2018, and at the time, the big business lawyers at Corrs Chambers Westgarth noted, “To the extent that the Court’s decision … confirms the common law approach to defining casual employment, it is unremarkable. However, what it does highlight is the need for employers to review the substance of their employment relationships, and how their casual employees are engaged in practice.” All that has changed is employees are starting to challenge the scam in court.)
Marilynne Robinson asks What Kind of Country Do We Want? “Much American unhappiness has arisen from the cordoning-off of low-income workers from the reasonable hope that they and their children will be fairly compensated for their work, their contribution to the vast wealth that is rather inexactly associated with this country, as if everyone had a share in it. Their earnings should be sufficient to allow them to be adequate providers and to shape some part of their lives around their interests. Yet workers’ real wages have fallen for decades in America. This is rationalized by the notion that their wages are a burden on the economy… All the talk of national wealth, which is presented as the meaning and vindication of America, has been simultaneous with a coercive atmosphere of scarcity. America is the most powerful economy in history and at the same time so threatened by global competition that it must dismantle its own institutions… We are the richest country in history, therefore richer than the generations that built it, but we cannot bring ourselves even to make repairs. Our thrift will be very costly over time. The notion or pretense that austerity is the refusal to burden our children with our debts is foolish at best. But it is persuasive to those who are injured by it as surely as to those who look at a pothole and see a tax cut.”
SAlt and VicSocialists member Daniel Lopez gives a fair assessment of their prospects: “[I]n the twelve months following the 2019 federal election, the party’s two main constituent groups — Socialist Alliance and Socialist Alternative — retreated into their usual routines. Lacking an alternative leadership and structures such as branches, a staff, offices, etc., VS lapsed into unofficial hiatus. In recent months, following a debate initiated by a number of independent VS members, this situation has begun to transform. Recent party meetings have decided to initiate a membership drive, create committees to facilitate activism, increase the rate of dues, upgrade internal and external communications and to host events on a regular basis. If these spaces are utilised by VS’s members — especially those who do not belong to another group — the party may be rejuvenated. It may even flourish. … Sadly, the Socialist Alliance took this debate as its cue to depart the coalition. It would be naïve, however, to assume that this will leave VS out for the count, especially given its considerable independent membership and the undeniable tenacity of its remaining constituent group, Socialist Alternative. Nevertheless, long-term success will require electoral wins — which may be more difficult given party’s relative lack of implantation in local communities and the phased introduction of single-councillor wards.”
The latest issue of Jacobin presents glass-half-full and -half-empty visions of post-coronavirus policy. In Viral Socialism Now! [$], Mike Beggs and Beck Pearce argue, “Orthodoxies have quickly been junked to stabilize the existing system. Revealed as superstitions, they will be harder to impose again when this is over. … Everyone has been jolted awake to take a look around them. The fact that even conservative governments have found no alternative to jerry-rigging a welfare state is testament to the continued popular strength of egalitarianism. With confidence and organization, we can feed the public mood to reorder the world permanently.” But Meagan Day warns that the capitalist class is adept at presenting itself as the solution [$] to the problems it has caused: “The ruling class’s capacity to exploit the aftermath of disaster depends in part on the public’s continued willingness to tolerate their hold on power. Even if the public loses confidence or its patience wears thin, deposing the existing political and economic elite will remain a formidable task. But nothing of the sort can be attempted if people continue to believe that their leaders are trying in good faith to shepherd society through the aftermath of an unavoidable tragedy for which the ruling class itself bears no responsibility.” It will take hard work to ensure our recovery builds a better society instead of entrenching an unequal one.
The Fair Work Ombudsman’s media release brags, “The Federal Court has today imposed record penalties of $891,000 against the operators of three Hero Sushi takeaway outlets for underpaying workers and providing false records to the FWO.” This is certainly welcome… but those who read the Federal Court judgment will find that the regulator cut a deal that slashed the penalty the company is required to pay — and slashed it so severely that the Court couldn’t follow the reasoning: “The principles applied by the Fair Work Ombudsman in, for example, agreeing to that reduction, proved to be elusive. … [C]onsiderable misgivings were expressed during the course of the hearing in the present case as to the quantum of penalties agreed upon… [T]he manner in which the ‘Agreed penalty after totality’ was determined … occasioned the greatest concern. … But for the endorsement on the part of the Fair Work Ombudsman as to the appropriateness of those penalties, the Court itself may well have imposed considerably higher penalties.” Although FWO quotes from the judgment in its press release, it left these comments out for some inexplicable reason. (Note that despite engaging in what the Court called “fraud”, this was not a criminal prosecution because the FWO never prosecutes criminal bosses.)
Professor David Peetz: “What really needs simplifying in Australian IR is our enterprise bargaining system, which is remarkably complex. This is not because the ‘better off overall test’ means no worker can be made worse off by an agreement — something that irks some large corporations. It’s because the procedures tie worker representatives, in particular, in knots. … Australia’s enterprise bargaining provisions contain twice the number of pages of those in New Zealand’s Employment Relations Act, while the bar for prohibiting a strike is low. It is one thing to say (as a minority of OECD countries do), that strikes should be preceded by a secret ballot. It is another, less defensible thing to provide 24 pages of detailed prescription on how those ballots must be undertaken. Australia’s framework is much more complex than the comparable United Kingdom statute. Even the Productivity Commission, which is no friend of unions, has questioned the ‘overly complex processes for secret ballots’. … It is an oddity that, while awards have been simplified, the process of collective bargaining has been made remarkably complex in Australia. … To bring the system more in line with international practice on collective bargaining and industrial action, many restrictions should be removed.”
John Quiggin calls for a ‘Participation Income’ (similar to a UBI) and a Jobs Guarantee as the foundation of a post-Covid reform agenda: “The ideal response would be to use the JobSeeker and JobKeeper schemes as the basis for a fundamental transformation in our approach to work and welfare. JobSeeker could become the basis of a ‘participation income,’ set at a liveable level (say, equal to the age pension) and available to anyone with no market income and a willingness to contribute to the community, whether through job search, full-time study, volunteer work, or caring for children or disabled or elderly relatives. JobKeeper could be the starting point for a renewal of the commitment to full employment that was a central feature of the decades of widely shared prosperity after the second world war. In the absence of continued support from the federal government, neither the Reserve Bank of Australia nor the business sector has the capacity to prevent sustained high unemployment, even after lockdown restrictions are relaxed. If we truly want reform, we should not trawl through the remains of the neoliberal agenda of the late twentieth century. Rather, we should aim to achieve a positive transformation of our society and economy, and end this crisis better than we started it.”
Renee Burns on new rules that “reduced the access period for proposed changes to existing enterprise agreements from seven days to 24 hours”: “Unlike the recently implemented JobKeeper scheme, the regulations as made apply to all businesses covered by existing enterprise agreements; with no requirement to demonstrate a downturn in business or other COVID-19 related detriment. The regulations do share a sunset clause with other COVID-19 responses — with the access period reverting to seven days after six months’ operation — however, any changes made to enterprise agreements under the regulations will continue in perpetuity. … ACTU Secretary, Sally McManus … [said] ‘…the effect of reducing this period to 24 hours leaves workers exposed to employers seeking to exploit the fear caused by the pandemic and to pressure workers into rushed agreements, locking out their access to advice’. … Changes made to enterprise agreements under the new regulations are permanent, accessible to all businesses and continue an identifiable pattern of weakening workers’ representations rights. As such, the new regulations — introduced without consultation — look to be less a necessary lifeline of flexibility and more like a wolf in COVID clothing.”
Per Capita’s Emma Dawson [$] sounds a warning about Universal Basic Income: “[T]here’s a reason that the UBI has been championed by heroes of conservative and neoliberal politics such as Charles Murray and Milton Friedman: it’s an effective tool by which to reduce the size of government and increase people’s reliance on the market. Handing out unconditional cash from taxpayer funds gives great grist to the argument that government should stop delivering essential services and expect people to buy them from private providers. … Persuading the government to raise taxes, or even print money, to distribute to working people means that, no matter how badly you pay them, they can still afford to buy your stuff. Essentially, the UBI is just another measure to funnel the products of our national economy into the hands of those who control the means of production. It exacerbates the concentration of capital amongst those at the very top of our economic system.” One great advantage of the UBI is that it attracts widespread support (a survey published this week found 71% of Europeans agree “that EU member states should pay all citizens a basic income, regardless of their employment status”) but that is partly because it is still a nebulous concept. If progressives want a UBI it must be carefully designed and implemented in conjunction with UBS.
Joshua Badge: “At first glance, the government response appears to protect renters, but landlords win at every step. State governments opted for a trickle-down approach, with New South Wales gifting landlords $440m in further tax breaks. Victoria followed suit with a $420m discount on land tax, setting aside a mere $80m for renters themselves. Even then, state government rent relief goes straight to landlords, making the whole scheme a scandalous transfer of public money to private investors. The states’ strategy has been to protect the interests of property owners and pray they pass on the benefits to tenants. … Ours is a society with more empty residences than homeless people. Wealthy households have never been more prosperous, while millions remain impoverished. The solutions are simple. If someone is homeless, give them a home. If they are hungry, then provide them with food. The discussion we should have is not whether we should do this, but how? We should increase welfare payments, ban no-cause evictions, invest in social housing and legislate stronger rights for renters. We could also establish rent controls, nationalise housing and push for a national housing guarantee.”