Penalty rate cuts could set precedent for other industries, union advice says
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Version 0 of 1. Sunday penalty rate cuts in retail and hospitality awards could set a precedent for cuts in a range of other industries including aged care, cleaning, security, and hair and beauty, legal advice to Australian unions has warned. A legal opinion provided by Maurice Blackburn to the Australian Council of Trade Unions, released on Friday, found that the Fair Work Commission decision to consider consumer expectations and not to actively deter weekend work could be used in arguments to vary other awards. The employment minister, Michaelia Cash, has refuted the suggestion, noting the commission said its decision provided “no warrant for the variation of penalty rates in other modern awards”. On 23 February a five-member full bench of the commission ordered Sunday penalty rate cuts in the retail, pharmacy, fast food and hospitality industries of between 25 and 50 percentage points. Giri Sivaraman, the Maurice Blackburn principal who authored the advice, said that despite the commission’s claims that retail and hospitality were different from other industries, many of its findings of fact and law applied in other industries. Of particular concern were the commission’s findings that penalty rates are not designed to deter weekend work and that it need only consider additional remuneration for unsocial hours, rather than guarantee it. The advice identified a number of considerations that bolstered the case to cut penalty rates, which could apply to other industries, including: consumer expectations of service on weekends and public holidays the potential to increase employment due to changes in socialising, religious observance and other factors, the interference associated with working weekends has decreased “Each review application will be assessed on its merits,” the advice said. “However, this decision has relied on principles which are likely to be relied upon in future decisions, hence it opens the door on reducing penalty rates and loadings in other awards in the future. The complete list of occupations at risk, according to the advice are: nursing and health care, transport, security, cleaning services, construction, clerical workers, laundry services, hair and beauty industries, trainers, mining and factories. Sean Rooney, the chief executive of peak aged-care body, Leading Age Services Australia, told Guardian Australia: “Penalty rates are just one of the many issues that need to be considered in the context of the overall workforces challenges.” The Building Service Contractors Association of Australia executive director, Barbara Connolly, said it was “pure speculation” on the part of unions and it was “not looking at the moment” to vary the cleaning and security awards. The ACTU president, Ged Kearney, said that despite FWC saying hospitality and retail were different from other award-dependent sectors, the advice “confirms this doesn’t prevent penalty rate cuts from being cut in other sectors”. “The safety net is broken and must be immediately strengthened to ensure no Australian worker sees their pay go backwards,” she said. Kearney said Australian unions would not stop campaigning until the decision was overturned with legislation, as Labor and the Greens have promised to do. The Turnbull government has resisted calls to intervene against the penalty rate cuts, although Malcolm Turnbull has suggested that annual wage rises could “offset” penalty rate cuts, a claim refuted by United Voice and unions representing affected workers. On Friday, Turnbull told 5AA radio in Adelaide the government did not plan to interfere with the decision, but refused to respond to a report that cabinet would consider a new strategy to sell its benefits. Turnbull said that the commission had been swayed by evidence from employers such as Andrew Bullock, the chief executive of 1834 Hotels, which runs 16 hotels in South Australia, that penalty rates reduced Sunday trading hours. Turnbull said Labor’s claims the decision could affect nurses and police were “ridiculous” because they were covered by state awards and agreements, not the retail and hospitality awards. |