Our Members are not Second-Class Citizens
Go Back- 11th August 2015
by Peter O'Keeffe.
Serious academics, and arguably any person of goodwill who is interested in honest inquiry, will approach an analysis of any issue, let alone a complex and contentious issue, with an open mind. I have seen peer-reviewed academic papers wherein the authors of the study were surprised at their own findings, on the basis that their research pointed to conclusions at complete odds with what they had initially thought when contemplating the research. Nonetheless, such researchers draw their conclusions based on the evidence they uncover.
I expected very little in the way of honest inquiry from the Productivity Commission. Having read with dismay their analysis of the retail industry in 2012, I anticipated that their review of the Workplace Relations System would proceed on the basis of drawing a conclusion first, cobbling together whatever shards of evidence they could find to support that conclusion and then marketing the end result as analysis. Sadly, I was correct. In my assessment, the Productivity Commission’s review of the weekend penalty rates issue is a masterpiece of sophistry, contrived analysis and conclusions derived using spurious logic. I believe it does its authors no good in terms of their credibility.
Of course, it may well be seen that my take on the review is hopelessly skewed by my partisan position as Secretary of the SDA. It is my job to oppose cuts to penalty rates and my natural inclination to press for their retention. That said, I am not making the argument per se, but rather highlighting the (hopefully obvious) flaws in the conclusions drawn by the Productivity Commission. In doing so I hold to the view that those advocating change must make out the case for change and so the burden of proof, as it were, belongs with them. I contend they have not discharged that burden.
Unfortunately, the review report is so bad that deciding which elements of it warrant correction is a full time job. Instead of presenting a 50 page review of its numerous failings, I am going to focus on the claims made in support of the contention that penalty rates should be slashed in so called HERCC (Hospitality, Entertainment, Retailing, Restaurant and Café) industries.
On page 483 (Key Points), the review notes that “Penalty rates as currently constructed for essential services and many other industries are justifiable. They align with long-held community expectations, the typical working arrangements and the job skills required in these industries.” It goes on to say that “Sunday penalty rates in (HERRC) industries should be set at the Saturday rate.”
The review notes on page 486 that premium (penalty) rates have two rationale: the deterrence argument (to stop long or unusual hours) and the compensation argument (to compensate employees for working at inconvenient times). On page 487 (Box 14.1) the review concedes that the notion of weekend work being socially detrimental is consistent with the objectives of the Fair Work Act and various conventions of the ILO.
On page 499, the review notes that the concept of deterrence “…is now largely seen as dated”, that “…Australian Government and the FWC have…recognised the legitimacy of businesses opening on weekends” and that no “…major stakeholder regards weekend trading as inherently undesirable.” If we can accept for a moment that this is true then logically the deterrence argument is irrelevant and we are left with the compensation argument only. If this is the case, why is it that a nurse, or police officer, or a factory worker is inconvenienced by working on a Sunday but a shop assistant is not?
Our members are not second class citizens.
HERRC workers are, by broad community standards, lower paid workers. It is insulting and unfair to suggest that somehow their economic position should condemn them to social disadvantage by having their weekends treated as less important than the weekends of others.
Additionally, if the guide is, as stated in the review “long held community expectations, the typical working arrangements and the job skills required” then by the Productivity Commission’s own statements and logic, community expectations are for HERRC services to be available on weekends (see pages 484, 485, 493, 494, 495, 496 and 497) and so that box is ticked. Typical working arrangements in HERRC industries already include weekend work and so that box is ticked. This then leaves us with the third component.
While the skill levels required in some essential services such as nursing are probably higher than those in most HERRC jobs, this skill disparity is already recognised in the differences in base wage rates. Given penalty rates compensate people for inconvenience, it is absurd to suggest lower skills means lower inconvenience. Are we going to accept a notion that says it is more important that a nurse get to watch his son play football on Sunday than it is for a shop assistant to do the same?
This proposal should be seen in its true light: as a mean-spirited and cynical exercise to try to gain a precedent for the removal of penalty rates more broadly, as is contemplated in section 14.8 of the review, by targeting employees who are regarded as lacking bargaining power. We must not let this cynicism prevail.
Our members are not second class citizens.
