Jennifer Westacott Business Council of Australia
Image: AAP/Mick Tsikas

The coronavirus has brought about an apparent storm of hitherto unseen cooperation and reform — albeit temporary — on industrial relations in Australia. Meanwhile, employer groups continue to push for the same changes they prescribe for every problem: deregulation — or “flexibility” and “simplification” — of the workplace relations system.

University of Adelaide Law School Professor Andrew Stewart has provided expert advice to the International Labour Organisation and federal and state governments across Australia, including on the drafting and structure of the Fair Work Act.

He told Crikey that if Australia maintained this co-operation between traditionally adversarial parties in the early stages of the crisis it would provide “a very serious dividend”.

“Unfortunately, there is every reason to believe things will snap back to a more adversarial approach,” he said. “Certainly that would be the case if business groups try to use this crisis as an opportunity to impose their long-held wish for more market deregulation.”

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There are no shortage of lobby groups aiming to do just that. Monday gave us Business Council of Australia CEO Jennifer Westacott’s comments in The Australian that “on workplace relations, our priority is to simplify the complex awards structure and restore faith in the enterprise bargaining system”.

In a statement released the same day, she argued:

Regulations which have been suspended during the COVID-19 crisis should be properly considered before they are reinstated, do we really need them?

This call for industrial relations reform was backed by Judith Sloan on Tuesday, and Westacott’s comments were cited in the Oz‘s editorial.

Meanwhile, Innes Willox, Chief Executive of the Ai Group has insisted that “to enable the Australian economy to successfully navigate out of the current crisis, increased workplace flexibility is essential.”

“The COVID-19 crisis necessitates an approach to IR reform that does not just tinker around the edges,” he said. 

The BCA’s argument is that the “better off overall” test (BOOT) governing enterprise bargaining is too complicated and should be returned to the looser “no disadvantage test” that was in place under WorkChoices. Further, awards should be simplified to the point they only deal with nine employment conditions.

The basic argument: “going forward reforms that make it easier for companies to do business in Australia will help create jobs”.

But this doesn’t stack up.

“There’s no evidence that cutting conditions from employees has any positive effect on growth,” Stewart said. “In fact, the evidence is much the other way — particularly regarding pay rises for the lowest paid.”

In some ways this push is to be expected, even beyond the maxim of never wasting a good crisis. The shock election of Scott Morrison’s government left a policy vaccuum that he explicitly asked business lobbies to fill.

In late June last year, Morrison gave a speech to the West Australian Chamber of Commerce and Industry, and asked business groups to make the case for industrial relations reform. Since well before the pandemic business lobbies were more than happy to oblige.

Soon after, Porter announced a review of Australia’s industrial relations laws (currently on hold).

Stewart argued that the political risks of a Coalition government trying to implement reforms that severely curtail employee protections was still too great — the ghost of the Howard Government’s disastrous WorkChoices reform loomed too large — for the push to work.

It was particularly risky given the ongoing issue of wage stagnation in Australia.

“How, with that backdrop, could you make the case for cutting minimum wages, or making jobs more precarious?” he said.

And for all the talk of unprecedented co-operation and unlikely BFFs, employer groups can’t have been too unhappy with the design of the JobKeeper legislation.

First, they welcomed the reducing of the consultation period required to make serious changes to employee conditions from a week to one day.

This is significant, because JobKeeper allows employers to make big changes to peoples working conditions.

An employee may be stood down, lose hours and pay, have their day-to-day duties changed, or be directed to take their annual leave, even if these changes would otherwise breach the Fair Work Act, or an employee’s award, enterprise agreement, or contract.

Further, the design of the JobKeeper process quite firmly puts the power in the hands of employers — rorting has already begun — and excludes at least a million workers, among them migrant workers, students and casuals, all groups at above average risk of underpayment.

Lauren Kelly, a policy adviser with the United Workers Union has argued “under the guise of crisis relief, the plan is actually reintroducing some of Australia’s most anti-worker policies”.

Indeed, far from revolutionising the relationship between worker and employer in Australia, JobKeeper throws a lot of money at maintaining the status quo.

Stewart said the status quo might be the best employer groups can hope for in the forseeable future.

“The government is either going to have to raise taxes or make very painful cuts to spending after all this,” he said. “It seems unlikely they’ll have the political capital to spend on cutting worker protections on top of that.”

The BCA declined to comment for our story.