The future of penalty rates for weekends and public holidays is back in the spotlight as employer groups lodge submissions with the Fair Work Commission, which is reviewing more than 200 awards covering minimum wages, working hours and other conditions.

On Saturday, Fairfax Media picked up some of the employer submissions urging removal of penalty rates and, proving what a hot-button issue this is, at last count the story had 10,000 likes on Facebook and 520 comments on The Sydney Morning Herald website alone, running for 60 pages until they were closed off. The first commenter, Nicko, jumped online at 6.31am and pretty much set the tone: “Well if retailers want to work weekends they’re most welcome to, just don’t force other people to do it. It’s just another way to make more money and take away another worker’s right to spending time with their family and friends.”

Minister for Employment Eric Abetz and Treasurer Joe Hockey, who announced a Productivity Commission review into workplace relations on the Friday before Christmas, will tread extremely carefully before introducing any across-the-board reforms to penalty rates — notwithstanding calls for an overhaul from Coalition backbenchers like Dennis Jensen and Alex Hawke or former tennis great John Alexander.

Madonna King’s biography Hockey: Not Your Average Joe records that when John Howard appointed Hockey as employment minister in early 2007 — the first cabinet post for the avuncular politician — he was given the awful job of selling an unpopular WorkChoices policy in the lead-up to the federal election. Having come into effect in March 2006, the WorkChoices reforms removed the so-called “no-disadvantage test” (meant to ensure individual contracts could not leave a worker worse off than under the relevant industry award) and thereby allowed employers to offer workers contracts without penalty rates. Hockey was tasked with selling an “impossible message,” writes King:

“… within weeks of starting the new gig, Joe knew the law would require changes if the party had any hope of staying in government … Joe knew the brunt of criticism of the government’s industrial relations laws centred on two issues — penalty rates and unfair dismissals. They were stopping him making inroads to explain the rest of the policy.”

Hockey urged a softening of the policy on penalty rates but Howard, channelling his hero Margaret Thatcher, was “not for turning”. As the union movement ramped up the devastatingly effective “Your Rights At Work” campaign in 2007, emotions ran high. King writes the WorkChoices policy was “toxic” and those around the cabinet table “acknowledged it was the policy around unfair dismissals and penalty rates that was the real bugbear”.

Not everybody remembers it that way. John Hart is chief executive of Restaurant and Catering Australia, one of the industry lobby groups that has lodged a submission on penalty rates with the Fair Work Commission, and was involved in the negotiations to soften WorkChoices back in 2007, which resulted in reintroduction of an alternative “fairness test” but did not shift a debate that had turned against the government.

Hart told Crikey yesterday that King’s treatment of the penalty rates issue “really jarred for me, having been fairly closely involved with the discussions at the time”.

“The issues at the time were not penalty rates. Essentially it was Australian workplace agreements and the way they were being struck. That’s why the fairness test was introduced. There were concerns with the removal of the no disadvantage test and that was certainly an accurate reflection [in the book], but not penalty rates.”

Hart says the restaurant industry is a special case and the broader fears about penalty rates are often raised by people who are not involved in the hospitality industry — in emergency services, for example, which is “not within a bull’s roar of what we’re talking about”.

Hart does not want to debate penalty rates in general. “There is no call here for a legislative solution,” he said. “There is not a problem across the board, there is only a problem for our industry.”

“What the Fair Work Commission should do is adjudicate between the parties, either by agreement or conciliation or arbitration. That is the correct way to deal with awards. Job-lot arrangements across awards are really a nonsense.”

“We’re not even arguing penalty rates should be removed,” Hart said. “All we’re saying is Saturday [time-and-a-half under the industry award] should equal Sunday [1.75 times] and governments should stop gazetting public holidays.”

The Fair Work Commission has set out a timetable for award review hearings that will drag on all year. The Productivity Commission will report in November. Which leaves the federal government, still trying to get an unpopular budget through the Senate, in a bind. The WorkChoices spectre has been let loose and will be spooking voters all year. It is hard to see much government appetite for radical IR reform heading into the 2016 election.

Peter Fray

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