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We have started this blog to focus on the impact of COVID-19 on the more marginalised and vulnerable people and communities with whom much of our research is concerned.

Employment insecurity and COVID-19
Karen Douglas | 12th of August, 2020

Labour markets over recent decades have changed substantially in both focus and security. Technological innovation and social changes have driven new types of jobs and increased workforce diversity. Women, migrant and young workers are present in the labour market in larger numbers than ever before. Insecure or precarious employment, work without leave entitlements, with inconsistent or unknown working hours and with limited to no long-term contractual engagements has also increased.

The significance of this development is brought out by examining the ‘standard employment’ relationship. This form of employment is characterised by ongoing employment, full-time hours, one employer, career opportunities, leave arrangements and legislative protections from unfair or arbitrary employer behaviour. Established in times of full employment, the standard came to represent a normative, ideal, form of employment. Trade unions, employer groups and governments focused on this form of employment when negotiating employment rights. Social safety nets including sickness benefits, unemployment payments and aged and disability support were established on the basis of this standard.

Yet this form of employment created an entrenched structural disadvantage in the workplace because it excluded many women, migrant workers, and often young workers. A recent report into the on-demand workforce in Victoria confirmed about 50% of the Australian workforce is in full-time employment therefore subject to protective employment arrangements. With COVID-19, short-term contracts, casual engagements and fixed-term employment arrangements have evaporated. These contractions expose the insecure employment that is prevalent. Recent Australian data confirms service workers such as those in bars, restaurants, accommodation retail outlets or recreational facilities have lost employment. These job losses have hit women and young workers the hardest, perpetuating decades long labour market exclusions. Nonetheless, the work undertaken by these precarious employees is fundamental to the social and economic well-being of the country.

To address the current moment, as well as the long-term nature of precarity, we should note that the drive to secure decent employment arrangements is an international one. In 1998 the International Labor Organization (ILO) reaffirmed its commitment to decent work via the ILO’s Declaration on Fundamental Principles and Rights at Work. As a member state to the ILO Australia has agreed to these principles. Further, in 2006 the ILO agreed on a set of employment arrangements to protect vulnerable workers. Recognising employment regulation has been diminished, creating gaps in decent work, the resulting Recommendation 198 established a modern regulatory framework underpinned by a commitment that no worker should be deprived of protective employment conditions.

In its deliberations as to how to recover from COVID-19, Australia is presented with an opportunity to embed secure working conditions. Disrupting long held presumptions about the pervasiveness of the ‘standard employment relationship’ begins to open up a discussion on how employment is undertaken. The ILO’s declaration and recommendation set out a roadmap as to how that can occur.

 

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Inequality and Exploitation at Work in the Time of COVID-19

Kate Farhall | 6th of August, 2020

This blog comes out of the Centre program focusing on ‘Work in the COVID era’. Kate Farhall is a Postdoctoral Research Fellow in CPOW and the School of Management, RMIT University.

Since COVID-19 began to devastate labour markets, consistent reports have emerged highlighting how the pandemic has deepened inequalities related to work and employment.

This is perhaps unsurprising. Crises often place greater pressure on those who are the most vulnerable, and those whose lives are already precarious tend to be the first to fall—or to be pushed. Crises also open up increased opportunities and motivation for the exploitation of workers. This may arise out of a desire for employers to get the most out of dwindling resources—including ‘human resources’. Alternatively, employers may have an increased ability to draw on the goodwill of workers to ‘pull together’ for the organisation, or even the greater good, without fair compensation or remuneration.

In recent weeks in Victoria, the ways in which insecure work and precarious workers may be particularly vulnerable to spreading COVID-19 has been revealed. This demonstrates how those with the least financial and social capital are often least able to refuse requests from employers.

The pandemic, then, is both a lens with which to expose pre-existing inequalities, but also an opportunity for major change. Research frequently identifies times of industrial uncertainty and transition as times when the prevailing social and economic arrangements can be significantly re-ordered.

However, moving toward greater equality for workers, whether marginalised along gender, racial, class-based or other lines, requires active planning. Such improvements do not follow automatically from broader initiatives to rebuild. In fact, gaps between workers can be amplified by rebuilding processes. This feature can be seen in the way the Australian government has sought to stimulate the economy and support job growth in recent months. While I focus on gender here, this is also true for other marginalised populations and especially for those who live at the intersections, such as migrant women.

Current government approaches signal an unequal valuing of labour. Men’s labour, most notably in the highly masculinised construction sector through ‘Homebuilder’, has been prioritised. This is a sector where female representation has actually declined over the past decade and one that saw the largest increase in the gender pay gap in Australia between November 2018 and 2019. The European Institute for Gender Equality notes that this kind of gender-blind economic policy making can actually exacerbate gender gaps, by investing primarily in—and therefore elevating—heavily masculinised industries.

Conversely, critical areas of feminised labour, such as disability support and childcare, have faced significant challenges during the pandemic, yet garnered limited government assistance.

Disability support is an area of work that is crucial to provide dignity and rights to a significant portion of the Australian population. Yet in this sector, a lack of access to adequate personal protective equipment has combined with uncertainty and precarity to increase worker vulnerability and exploitation within the sector. A recent survey and report from UNSW (unpacked in depth by my colleague Wendy Taylor previously on this blog) have underscored the ways in which these factors have combined to increase stress and risk for undervalued workers in the sector. Workers who are primarily womenoften migrant or racialised women—on low-wage, casual and precarious contracts.

The childcare sector has also been hit hard by the pandemic. While the government’s $1.6 billion relief package and fee-waiver in April staved off a sector collapse, its more recent announcement of a ‘snap back’ approach is likely to have damaging impacts on its feminised workforce, as well as women’s labour more broadly. With the sector the first to lose the JobKeeper wage subsidy towards the end of July, alongside a return to pre-COVID fee arrangements for parents, which are predicted to precipitate a slump in enrolments, the sector is facing decimation. For families whose incomes have been hit hard by the pandemic and who cannot afford a return to fees, childcare may not longer be an option. The number of days a week they access childcare may have to be reduced. As a result, this predominantly female workforce is likely to face significant job-losses. Further, an increase in informal childcare arrangements is also anticipated—and also hugely gendered. Women’s labour force participation is thus predicted to drop, as a result the increased childcare burden they will face.

In Victoria specifically, there is still confusion about how the Stage 4 restrictions will impact on the sector—and on families. The new restrictions in force only allow the children of permitted workers to remain in childcare, pushing childcare back into the informal sector and likely onto women. Moreover, despite providing some support to the sector, the Federal government has declined to reinstate JobKeeper, leaving future income for sector workers uncertain.

Uncertain working conditions in these sectors and uncertain futures for their workers have gendered societal consequences, and do nothing to strengthen the social bedrock for a post-pandemic recovery. Beyond the immediately impacted workers, documented falls in women’s participation in public life and knowledge work during the pandemic—such as a reduction in women submitting academic papers or running for local council—suggest longer-term impacts on gender inequality in Australia.  

Crises such as the COVID-19 pandemic exacerbate work-related inequalities and increase the possibility for the exploitation of workers, particularly those with limited power. If Australia does not address these inequalities with effective policy responses, the country is likely to come out of this pandemic less equal, and more polarised.

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‘Labour is not a commodity’ through the lens of a global pandemic
Anthony Forsyth | 31st of July, 2020

Anthony Forsyth, RMIT University and Labour Law Down Under Blog – this post draws upon my Preface for the forthcoming book ‘”Labour is not a Commodity” Today: The Value of Work and Its Rules between Innovation and Tradition’ (Emanuele Dagnino, Margherita Roiatti & Anthony Forsyth, eds, Cambridge Scholars Publishing,  2020). 

The book presents selected papers from the 10th ADAPT International Conference held in Bergamo, Italy, in November 2019, offering local and global perspectives on the International Labour Organization’s founding mantra – ‘labour is not a commodity’ – in its centenary year. Here I explore the meaning of this concept in the wake of the COVID-19 pandemic.

Work Status, Work Classification, Organizational Flexibility

The pandemic has wrought destruction on the health, well-being and economic security of citizens across the world. The effects of government lockdown measures to control the virus have been most harshly visited on precarious workers. Those who do not have permanent employment status are the least likely to have sick leave entitlements. Many have been faced with the dilemma of having to continue working, rather than self-isolating when awaiting test results or having tested positive for COVID-19. Then there are the millions working in the gig economy, misclassified as ‘self-employed’ by platform operators and therefore with little choice but to carry on delivering food or providing rides with next to no protection from infection. Managerial power has been enhanced, as long-standing protections (for those with employment status) come under pressure from recessionary impacts and renewed calls for flexibility to aid job creation.

Economic Value of Work

In many parts of the world, the value of work has increasingly been measured by its status, remuneration and the contribution made to corporate profits. One positive effect of the pandemic has been to call these assumptions into question, and to re-evaluate ‘what work really matters?’. Front-line health workers have obtained an exalted status, as communities have applauded their courage and commitment in the most trying of circumstances. More importantly, previously ‘invisible’ workers – those working in supermarkets, pharmacies, warehouses, transport, cleaning, the care sector – have become visible. Their work suddenly counts, as it always should have. But let us not forget, these workers are usually among the lowest-paid and subject to the most difficult working conditions including job insecurity. The crisis has led to an overdue reckoning: an assessment of the true value of work to society, not just the economy. The challenge now is to ensure that the reward for these types of work reflects their worth, as nations rebuild in the wake of the crisis.

Welfare, Work Settings, Health and Safety

Just as COVID-19 has precipitated reconsideration of the very concept of work, so too has it transformed previously fixed notions of ‘the workplace’ and how much time must be spent ‘there’. In many countries, employers who had long resisted demands for flexible work (particularly from women workers) managed to transition to work-from-home arrangements very speedily. When this became a matter of business survival following lockdowns, rather than a debate about diversity or work-life balance, the proposition was suddenly undeniable. In reality, working from home has presented workers with significant challenges: juggling the care and home-schooling of children, the intrusion of work into the private sphere and family life, and elevated levels of employer surveillance. Health and safety concerns have also arisen, although the risks for home-based workers are generally minimal compared with those faced by health-care staff and other essential workers. Some of the major outbreaks of coronavirus globally have occurred in settings where low-paid workers have not been given adequate safety training or protective equipment, such as garment factories, distribution centres, meatworks and aged care facilities.

Representation, Participation and Collective Bargaining

While their position has generally declined over the last 30 years or so, trade unions in many parts of the world have become essential partners with governments and business in tackling this unforeseen situation. Policy-makers found that they needed to engage with the representative voice of workers, to effectively implement emergency response measures and economic support programs. Unions, in turn, had to pivot nimbly towards new techniques and strategies of online organising and digital campaigning. They have extended their traditional role as the buttress against arbitrary exercise of managerial power in the new circumstances of the pandemic, calling out unsafe work at multinationals like Amazon and Walmart. However, unions have been mostly forced into a defensive posture: protecting workers’ existing wages and conditions, their jobs, and their health. The project of improving on minimum standards through collective bargaining is greatly constrained in the context of rising unemployment, wage ‘freezes’ and an emerging impetus for deregulation.

Protection against Poverty and Social Inclusion

Without question, the economic impact of the COVID-19 pandemic has been most detrimental for those who were already vulnerable to begin with: precarious workers (discussed earlier), those working in the informal economy and the unemployed. For these groups, and the vast numbers of people furloughed or retrenched across the world, state systems of support have been created or extended to mitigate the effects of inevitable hardship. Wage subsidies, income supports and enhanced unemployment benefits have been provided in many countries. To pay for these programs, the neoliberal aversion to public spending has been tossed aside. Indeed, after years of austerity in some economies, many adherents of the free market have come to see the vital role of the state – in safeguarding the interests of businesses, and protecting citizens from inequality.

Labour is Not a Commodity … Today

It could not have been envisaged that in its 101st year, the world would need to fundamentally re-imagine the ILO’s founding principle. As nations begin to emerge from the crisis brought on by the coronavirus pandemic, it is clear that its adverse economic and social effects are likely to be with us for many years to come. In this setting, the idea that ‘labour is not a commodity’ must be given a meaning that ensures a vigorous role for the state in ensuring social inclusion (especially for the most vulnerable in and outside of the labour market); recognition of the legitimacy of trade unions in national, industry and workplace decision-making; and above all, protection of individual workers from unsafe conditions and a genuine recognition (and reward) of the intrinsic value of all forms of work.

Many thanks to Prof Anthony Forsyth for permission to repost his blog entry from COVID-19 & Work on the Labour Law Down Under website: https://labourlawdownunder.com.au/
(originally posted on 28th of July, 2020)

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COVID-19 and the Violence of Money
Supriya Singh
 | 30th of July, 2020

A pandemic is not a time to live with your abuser.

COVID-19 with its lockdowns, restrictions on movement and isolation from friends and family is an incubator for coercive control.  COVID-19 has led to increased calls from women experiencing family violence. More worrying is the silence of women who are trapped.  Economic abuse, often invisible, will become overwhelming with increased economic fragility.  COVID-19 will decrease women’s options for leaving and surviving economic abuse.

Women have been more disadvantaged by the pandemic. They have lost more working hours than men. They are less entitled to benefits as more women than men work in insecure casual jobs in the industries that are adversely affected. A superannuation fund reports women are withdrawing a higher proportion from their superannuation funds. More women are closing their superannuation accounts. At the same time, women are working more unpaid hours at home (Wardell-Johnson, 2020; Wilkins, 2020; Workplace Gender Equality Agency, 2020).

With international borders expected to remain closed for a while, migrant women are more unsupported and vulnerable.  Isolation, fear and entrapment are key elements of coercive control at the centre of family violence. Coercive control was criminalised in England and Wales in 2015 and in Ireland and Scotland in 2019. Criminalisation is still being discussed in Australia. Perhaps COVID-19 will make clearer the ravages of coercive control.

Once women feel safe to call and have the option to leave, we will be able to better judge the effects of COVID-19. Will joint accounts be more abused? Will women be denied money? Will expenditure be more closely monitored? Will coerced debt increase? Will there be an increase in online gambling? Will the man send more money home without consultation leaving his family in Australia doing without?

It is particularly worrying if a woman loses all her paid work, because a break in paid work makes it more difficult to achieve financial resilience when she leaves.

If you are suffering family violence, it is important to remain in daily touch with at least one friend or family member. Tell them you need to touch base so that you can remain connected and feel less alone. They will also be comforted to know you are safe.

Analysing the stories of 12 women who have survived economic abuse in a book I am writing entitled ‘The Violence of Money’, I have found it helps if you can recognise and name economic abuse. Most people associate family violence with physical assault. Sometimes they learn only incidentally that they are suffering economic abuse. They see a poster in a clinic, attend a talk or a friend points it out.

Economic abuse is gendered. It is mostly men using it to ensure their sense of entitlement. If the perpetrator controls or exploits your money and assets as well as sabotages your paid work so that he can control your life, you are suffering economic abuse. Economic abuse happens to women who are educated and uneducated, migrant and non-migrant, urban and rural. This does not mean you lack financial literacy or capability. It happens to women who are the main earners in the household. In Australia, the 2.2 million women who suffer emotional abuse also suffer economic abuse.

It can be a relief to give economic abuse a name. You then know your distress is not because you lack ability. You are not losing your mind or becoming obsessive about money, as he may have told you. Once you can name economic abuse, you can begin planning the next steps. These may include counselling and/or a plan to leave safely and well. COVID-19 may be a good time to increase your educational qualifications and certification online, particularly if you have been out of paid work for a while. This is important whether you plan to stay or leave.

Get in touch with professional services when you can to seek help for housing, utility, rental and insurance issues, emergency funds, alleviation of coerced debt and visa problems. This professional help, together with the emotional support of family and friends can convert survival into empowerment.

Wardell-Johnson, G. (2020, 23 July 2020). Gender Impacts of COVID-19: Budget update. Retrieved from https://newsroom.kpmg.com.au/gender-impacts-covid-19-budget-update/

Wilkins, R. (2020). Who’s hit hardest by the economic effects of COVID-19? – Evidence from the Household, Income and Labour Dynamics in Australia (HILDA) Survey on the characteristics of people likely to be experiencing the worst economic effects of COVID-19  Retrieved from Melbourne: https://melbourneinstitute.unimelb.edu.au/__data/assets/pdf_file/0006/3387039/ri2020n10.pdf

Workplace Gender Equality Agency. (2020). Gendered impact of COVID-19. Retrieved from https://www.wgea.gov.au/topics/gendered-impact-of-covid-19

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It’s time to listen to migrant women
Dr Adele Murdolo | 8th of July, 2020

This blog is from a statement on 6 July by Adele Murdolo, Executive Director, Multicultural Centre for Women’s Health, a CPOW industry collaborator

Multicultural Centre for Women’s Health is extremely concerned about the health and wellbeing of migrant communities, particularly migrant women in the 11 ‘hot zone’ suburbs under Stage 3 restrictions, and public housing towers in Flemington and North Melbourne under lockdown.

The COVID-19 pandemic has disproportionately affected migrant women and their access to support services. They have been hardest hit by job and income losses, while taking on the lion’s share of responsibility for caring, housework and family support. They are at higher risk of family violence and social isolation, yet are less likely to have access to the information, support and services they need.

Throughout the crisis, the provision of multilingual information and support to migrant women has been manifestly inadequate. MCWH has strongly advocated for migrant women’s leadership in the prevention of COVID-19 transmissions. There is a need for trained peer health educators to positively engage communities with tailored, accurate and multilingual information and support. This type of support has never been more important.

While the Victorian government has engaged multicultural community leaders over the last month, women community leaders have been overlooked. It is time to listen to migrant women about their experiences and needs to ensure that they can access specific support throughout this crisis. Migrant women’s leadership is crucial to an effective, community-based, preventative response to the pandemic.

We are calling on the Victorian Government to meet with, and listen to, migrant women and their representative organisations, and to recognise their central role in multicultural community leadership. Migrant women’s organisations should be supported to reach out to migrant women who live in the designated ‘hot zones’ and high-density public housing across Victoria with multilingual information, support and services and to play a central role in strengthening the community response to COVID-19.

Many thanks to Adele Murdolo for permission to reproduce the MCWH statement here. Multicultural Centre for Women’s Health is an important community-based, not-for-profit organisation led by and for women from migrant and refugee backgrounds. MCWH is asking organisations and individuals to endorse the statement. If you wish to do so please email Mi Nguyen at mi@mcwh.com.au.

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COVID-19, Population Health & ‘The Market’
Prof. Pat Armstrong | 7th of July, 2020

This blog is an edited version of a talk that Prof Pat Armstrong (York University Canada) gave to her students recently linking the COVID pandemic with the global and local political economy in which it is located.   

Population health can have an impact on political economy in several ways. The tourist industry, which is among the top three industries in Toronto, has been particularly hard hit but it is far from alone. The impact may be especially hard for small businesses but very few businesses are immune. Undoubtedly the responses have been shaped by international economic powers and by economic concerns, but globally countries have now awakened to the fact that the market cannot stop the spread or go on as it is for the moment at least; only populations can. The pandemic clearly demonstrates the limits of the medical model and the importance of other health determinants even as we pour efforts into finding medical solutions. What counts as evidence, whose evidence counts and how evidence will be applied are clearly critical issues in these times.

The pandemic also demonstrates how economically and socially precarious so many people are, raising important questions not only about market strategies but also about government social supports, regulations and government responsibility in a wide range of areas that are critical to controlling this pandemic. The pandemic thus raises questions about states and governance. The application of for-profit methods and assumptions to hospitals help explain why there is no surge capacity for hospitals or nursing homes. But at least we have universal hospital and doctor care, with access mainly based on need rather than on ability to pay. However, we need to pay attention to those who are excluded from medicare and who are often among the most vulnerable to illness. And we need to think about the services that are not included in our universal system and what that means to particular populations that are likely to be the same ones without paid sick leave or decent wages.

At the same time, it becomes increasingly clear that health care involves a wide range of paid and unpaid providers, most of whom are women and many of whom are racialized and/or immigrant. The importance of cleaning has never been so obvious, food central, and social support critical. Care workers travelling from nursing home to nursing home in order to get enough hours of work are carrying the virus with them, demonstrating the threat from managerial practices promoting precarious work. Barring families and volunteers from nursing homes reveals the extent of the reliance on unpaid labour and the low staffing levels that support profits.

Political economy also draws attention to the tensions involved. The most obvious are those between emphasizing the threat and avoiding panic, between preventing contact and promoting isolation and between supporting business and supporting individuals. And, of course, it raises the question of who benefits, while recognizing significant differences in the consequences in terms of gender, racialization, class and other social relations.

The privatization of health and care, broadly defined as the move away from not only public delivery and public payment for health services is also a move away from a commitment to shared responsibility, democratic decision-making, and the idea that the public sector operates according to a logic of service to all.

The pandemic is exposing the weaknesses of a neo-liberal agenda that promotes smaller government with lower taxes and less spending, private payment and provision, for-profit managerial strategies, market mechanisms and individual responsibility as well as corporate decision-making. The main strategies now promoted to limit the impact of the virus require big government and collective responses on the part of the population. There are calls for more government regulation, intervention, spending and social supports at the same time as we are all asked to share the responsibility for preventing the spread by staying home and washing our hands.

A big question is whether the aftermath will be a move to more collective strategies, based on a recognition of shared responsibilities, or pressure for more authoritarian governments supporting even larger corporations emerging from the losses of smaller businesses.

Many thanks to Prof Pat Armstrong for permission to reproduce her talk here. Pat leads the SSHRC-funded project:  Re-imagining Long-term Residential Care An international study of promising practices– a project website well worth looking at.

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‘Regular and systematic’ casual employment: the black hole locking young workers out of JobKeeper

Anthony Forsyth | 2nd of July, 2020

The Young Workers Centre at Victorian Trades Hall Council has been running hard lately on the plight of young casual workers excluded from the JobKeeper income support scheme.

Workers at retail companies like Cotton On, David Jones, General Pants Co and Decjuba have been denied JobKeeper by their employers, on the basis that they were not ‘regular and systematic’ casuals.

The barrier, according to these employers, is the fact that the workers concerned took a break from their casual employment in the 12 months prior to March this year.

After concerns were raised about this on ABC 7.30, Cotton On agreed to review the exclusion of casuals from JobKeeper on the basis that they had gone on a holiday or had a study break: 
https://www.abc.net.au/news/2020-05-08/cotton-on-reviews-jobkeeper-eligibility-for-workers/12215758

A subsequent 7.30 program highlighted the exclusion of casuals at David Jones and General Pants Co. It noted that employers appeared to be interpreting the ‘regular and systematic’ requirement as meaning that employees who had a break of more than 8 weeks could be denied JobKeeper: 
https://www.abc.net.au/news/2020-06-04/casual-workers-excluded-from-jobkeeper-for-taking-holidays/12317894

The Young Workers Centre argues that similar practices have occurred at Decjuba stores: 
https://www.megaphone.org.au/petitions/decjuba-opt-us-into-jobkeeper

All of this shines a light on several problems with the JobKeeper scheme: the rules are in some respects unclear about casual employees’ eligibility, although there is a compelling view that an interruption to casual engagement does not disqualify someone from JobKeeper.

However, there is little scope for employees to challenge an employer’s interpretation knocking them out of the scheme. And the Fair Work Commission has no jurisdiction to resolve disputes about employee eligibility.

‘Regular and systematic’ and interruptions to casual engagement

The JobKeeper Rules allow a ‘long term casual employee’ to access JobKeeper from an eligible employer – that is, someone who ‘had been employed by the [employer] entity on a regular and systematic basis during the period of 12 months’ prior to 1 March 2020.

The term ‘regular and systematic’ is well-known in employment law. It is used, for example, to determine whether an employee is a long-term casual and therefore eligible to bring an unfair dismissal claim under the Fair Work Act. For those purposes, a casual must also be able to show that they have a reasonable expectation of continuing employment.

There have been several Fair Work Commission decisions establishing that an employee can be considered ‘regular and systematic’ despite interruptions to their casual engagement.

For example, in Gaete v Healthcare Australia [2018] FWC 6349, the FWC determined that a series of interrupted periods of casual engagement could count towards the qualifying period for unfair dismissal, if there was a sufficiently regular pattern of shifts.

In Shortland v The Smiths Snackfood Co Ltd [2010] FWAFB 5709, a Full Bench of FWC held that a casual’s service was not broken by a period of leave or absence due to illness or injury, and further:

“continuous service by a casual employee who has an established sequence of engagements with an employer is broken only when the employer or the employee make it clear to the other party, by words or actions that there will be no further engagements”.

The approach taken in these and other decisions to the interpretation of ‘regular and systematic’ should logically apply also to the application of that term for purposes of JobKeeper eligibility.

That argument is further strengthened by the Explanatory Statement for the JobKeeper Rules, which state that:

“A casual employee is likely to be employed on a regular and systematic basis where the employee has a recurring work schedule or a reasonable expectation of ongoing work.”

A better process is needed for resolving JobKeeper eligibility disputes

According to the Young Workers Centre, JobKeeper has been denied to retail casuals in circumstances where they had been working regular shifts (sometimes for quite a few years); took approved leave last year to travel or focus on study (in some cases, for as long as 8 or 9 weeks but also for shorter periods); then returned to their positions, all with the agreement of their employer.

In many of these instances, the Australian Taxation Office has advised the employees that they are eligible for JobKeeper. Yet their employers persist with the opposite interpretation, and often, deny these employees any access to shifts and therefore the opportunity to earn income.

At present, these employees have nowhere to go to have the issue resolved. The FWC was given the role to resolve disputes that arise between employers and employees about other aspects of JobKeeper, such as the new employer powers to stand down staff or reduce their hours of work.

However, the tribunal has no jurisdiction over whether an employee is eligible to receive JobKeeper in the first place. The FWC has been knocking back case after case where employees have tried to agitate this.[1]

There is a very simple solution here: give the FWC the power to resolve disputes over employee eligibility for JobKeeper. It has the expertise to deal with these issues, such as the regular and systematic test and its application to casual eligibility for unfair dismissal claims.

Without this change, young workers are left with no way of challenging employers unfairly denying them access to much-needed income support in a harsh economic environment.

[1] See for example Baptista v Pomegranate Interior Design & Decoration Pty Ltd [2020] FWC 2623 (https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc2623.htm).

Many thanks to Prof Anthony Forsyth for permission to repost his blog entry from COVID-19 & Work on the Labour Law Down Under website: https://labourlawdownunder.com.au/
(originally posted on 26th of June, 2020)

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COVID-19 and the Geography of Employment
Todd Denham
 | 19th of June, 2020

Changes in and disruptions to economies, as well as policy intended to mitigate the impacts, have spatial implications for the distribution of employment across space, both in terms of quality and quantity. A prominent example is the decline of prosperous 20th century manufacturing cities as a result of both globalisation and automation. While there has been just attention paid to the disparity between the impacts of COVID-19 on female and male workers in this series of blogs, as well as elsewhere, [1] there has been little attention paid to how the impact of the public health response to the pandemic and the subsequent increase in unemployment has different effects over space.

As a starting point, it is important to note that in recent decades jobs, particularly good jobs, have been concentrated in the centre of major metropolitan areas, in Australia as well as in other developed nations. The transition to services-based economies, which benefit greatly from agglomeration economies and are less dependent on access to large tracts of land in comparison to manufacturing, has had a concentrative effect on employment. Along with the differing impacts of increased digitisation and computing power on types of work, the result has been a polarised workforce, comprising “… highly qualified symbolic analysts and, on the other hand, by a low-wage service underclass, or what we might call in more polemical terms ‘a new servile class’”.[2] Symbolic analysts are those who use and create data and information to solve problems and perform services, including people working in finance and insurance, engineers, scientists and specialised consultants. The city-centric ‘symbolic analysts’ also likely to perform highly specialised roles and thus are harder to replace once economic activity resumes; and, that these workers are also more likely to be able to work from home than workers in sectors such as retail, hospitality and personal services.

The data in Figure 1 depicts the changes in the number of people employed from April 2019 to April 2020, for Victoria, Greater Melbourne, Inner Melbourne and the Rest of Victoria. While employment in the state declined by 1 per cent over the year, employment in Inner Melbourne was 7 per cent higher in April 2020 than April 2019. Employment in the non-metropolitan Rest of Victoria also increased marginally over the year, which also indicates that the employment impact of the major bushfires over summer was concentrated within the East Gippsland region. It is the middle and outer regions of the metropolitan area that have suffered the greatest declines in employment, areas where the retail trade and hospitality provided 18 per cent of employment in 2016 compared to 14 per cent in Inner Melbourne.

Figure 1: Index of employment, Victorian regions April 2019-April 2020
Source: 6291.0.55.001 Labour Force, Australia, Detailed – Electronic Delivery,
Table 16. Labour force status by Labour market region (ASGS) and Sex.

This data indicates that the impact of COVID-19 has been uneven in Victoria. Analysis is complicated by those on the Commonwealth’s JobKeeper payments who are recorded as employed in this data. As a result of JobKeeper, people normally paid less than $1,500 per fortnight can be retained by employers effectively free of charge. It is possible that the employment of those on lower incomes will be more likely to be terminated when the Scheme comes to an end in September particularly if consumer confidence remains low, reinforcing the spatial divergence in employment and opportunity.

[1] Eg: The Coalition Dishes Out Jobs for the Boys while women carry coronavirus’ economic burden

[2] Scott, AJ 2013, ‘Retrospect: Emerging Cities of the Third Wave’, City, vol. 17, no. 3, pp. 384-386. See also Autor, D 2010, ‘The Polarization of Job Opportunities in the Us Labor Market: Implications for Employment and Earnings’, Center for American Progress and The Hamilton Project, vol. 6.

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COVID-19 and disability support workers’ experiences Wendy Taylor | 16th of June, 2020

Anecdotal stories of disability support workers being overlooked as the pandemic unfolded was recently backed up by a UNSW report The Disability workforce and the COVID 19: Initial experiences of the outbreak. More than 415 disability support workers supporting people with disabilities – most of them with intellectual and cognitive disabilities – completed the on-line survey during the last week of March. The survey was well underway at the time COVID 19 emerged in Australia so the researchers, seizing the opportunity, quickly fine-tuned questions to capture workers’ experiences. It’s a timely report, which illuminates some risks for clients and workers beyond the pandemic.

Fear and anxiety for their vulnerable clients, themselves and their own families was a common concern among workers, unsurprising given at the time the threat was evolving rapidly and stories from overseas were increasingly bleak.  Many disability support workers provide intimate personal care so have found the social distancing guidelines near impossible to apply or maintain. Most commonly, the disability support workers have described insufficient access to personal protective equipment (PPE), including masks, sanitisers, antiseptic wipes and shoe covers. Their responses also reveal high levels of tension and uncertainty. They have been trying to minimise the risks of infection to their clients, some of them highly vulnerable, but at the same time are needing to protect their own health and that of their families or housemates. It’s a tough balancing act.

Another concern for workers was the number of people with whom staff and their clients were in contact, particularly in the early stages of the pandemic. Some clients continued to attend day centres, NDIS providers continued to visit clients at homes or in group houses, and casual and agency workers continued to work between different sites. Furthermore, with some staff stopping work when schools closed or taking time off to self-isolate, the subsequent staff shortages have meant an increase in casuals and agency staff.  Some workers were concerned whether casual staff, who lack sick leave entitlements, may continue working with mild symptoms out of financial necessity. For other casuals, however, particularly those in day programs, their work dried up overnight

Others described the additional strain supporting housebound and frustrated clients. Yet, at the same time, they are worried about the long-term viability of the programs clients usually attend that are dependent on clients’ participation under the individualised funding model.

Overall the report highlights how this frontline workforce, who are essential workers but seldom recognised as such, fell under the radar in the early stages, (Raelene West highlighted as much back in her 29 April CPOW blog). It also suggests a downside to the rapid growth in the number of NDIS providers and areas of price gaps in the funding. According to the latest NDIA Annual Report more than 21,500 providers are now registered under the NDIS, a huge jump from around 3,000 providers before the NDIS rollout. This may help explain the wide variation in providers’ preparedness experienced by the workers, in terms of access to information and advice on COVID-19, managerial support, and health and safety protocols for clients and workers. The lack of support many staff experienced most likely reflects inadequate provision in the NDIS price for backend support. Note, however, since the disability support workers were surveyed the NDIA has updated some items in its pricing guides in response to COVID-19 and is updating information and advice for providers on its website. But perhaps the greatest area of risk the pandemic has exposed has been around the funding model that encourages organisations to rely too heavily on casual workers, particularly a model that results in many frontline staff working across multiple sites to earn a decent wage.

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Expanding gender inequalities in work
Fiona Macdonald | 4th of June, 2020

COVID-19 has dramatically exposed gender inequalities in paid and unpaid work, highlighting the ongoing undervaluing of work performed by women and highlighting women’s vulnerability to economic disadvantage. Globally, concerns are growing that the COVID health and economic disruptions are increasing and deepening gender inequalities.

In Australia, women’s overall weaker labour market position, their dominance in essential caring occupations that are low-paid, and their continuing responsibility for most unpaid care work have all been placed under the spotlight in the current crisis.

Across the economy, women have lost more jobs than men due to their over-representation in casual and part-time jobs. Some of women’s job losses are in those industries and occupations hit hardest by COVID restrictions and which have high numbers of inherently insecure casual jobs (such as sales and service work in hospitality and retail). However, the impact is much wider as, in 14 of Australia’s 19 industry sectors, women held the majority of all the jobs lost in April. Women made up  55% of all workers who lost their jobs. At the same time women’s labour force participation rate also decreased (by 2.9%, compared with a 1.9% decrease for men).

Women are losing work hours as well as jobs, with their hours reduced by 11.5 %, compared with 7.5% for men in April. While some women may have been forced to cut back work hours due to unpaid family work (i.e. additional childcare and home schooling), there are indications that businesses opt to reduce part-time employees’ hours and jobs before those of full-timers. As women are two-thirds of all part-time employees, this puts them at greater risk of underemployment.

Pre-COVID, women’s greater share for unpaid care has limited their ability to pursue and maintain employment. In heterosexual couple households, especially those with young children, traditional gendered social norms persist and men are likely to be in full-time employment while women combine short hours paid work with unpaid care of children. Women perform 76% of childcare and 67% of domestic work in Australia with this the case irrespective of income, education and location groups.

While the Government’s free COVID childcare initiative may help some families with young children, many other families have lost access to both formal and informal care (e.g. grandparents) and taken on responsibility for children’s schooling. Research from the UK and USA suggests women are doing most of the home schooling of children, even when both partners are employed.

While women appear to be bearing the brunt of economic risk in employment they are also the overwhelming majority of people working in healthcare and social assistance jobs and face the greatest risk of COVID infection at work. Despite the importance of this essential work many of these  jobs are low-paid, and a high proportion of workers are casual and without access to paid sick and other leave (For more on these issues see: CPOW blog posts 26 May and 29 April).

Australian and international human rights bodies, business groups and academics have identified risks for gender equality arising from COVID-19 and have called for research to find solutions for the long-term. The Snap Forward Feminist Policy Network of researchers, policy consultants, women’s advocates and gender equality organisations has made a submission to the Senate Select Committee on COVID-19 raising these and other issues and proposing some solutions and ways forward. As members of the academic Work and Family Policy Roundtable, CPOW researchers have supported this submission.

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What impact is the COVID-19 pandemic having on women in the science, technology, engineering and maths (STEM) workforce?
Tehmina Khan | 2nd of June, 2020

This is the question recently posed by Hon Karen Andrews MP, Minister for Industry, Science and Technology. The rapid response report prepared by Johnston et al. (2020) for the Rapid Research Information Forum, chaired by Dr Alan Finkel, highlights some critical issues. Key issues stressed include: careers of women who are already in minority in STEM professions are expected to be further negatively impacted due to the greater burden of domestic responsibilities imposed under the current COVID-19 created circumstances. More females are employed in casual and part time positions; as a result, female academics are more susceptible to job insecurity under the current circumstances. Diversity and progress in the workforce are at risk, especially if monitoring and active control measures are not implemented.

My research together with Pavithra Siriwardhane on academic career progression indicates that female academics in STEM and Business disciplines are much more susceptible to discriminatory bias with lack of networking opportunities, mentorship (and its associated benefits) and when it comes to resources allocation.  It is critical to be allowed the basic opportunity to first have a job, a role, to create this fundamental avenue for undertaking research, innovation and impact. The barriers identified prior to the current situation relate to the fundamental assumption that a female academic is in some type of academic role to start with. Whether this academic role is a junior level, lecturer position or a research fellow position, the barriers to career progression such as lack of opportunities, have been recognised as important considerations to address. Some of the factors identified include glass ceilings and sticky floors, overloading of administrative tasks for female academics, high teaching loads, and discriminatory and biased behaviours against women. Recently, I wrote about the serious issue of sexual harassment against females in the medical profession. Such acts by senior staff, typically male senior staff, have the potential to break spirits. The female medical professionals are in some instances so traumatised by such occurrences that they decide to give up. They decide to leave their professions, or the system does that for them. Victim blaming punishes the females drastically and brings their careers to an end in more instances than not.

These are every day barriers which female academics face (not in all cases and not all factors are faced, but they do remain still as critical barriers) without the presence of COVID-19. Covid-19 has added an extra layer of complexity. In place of the basic reaction to cut jobs, institutions need to think of and implement new business models, based on new principles and innovative approaches, which focus on novel ways of thinking and which depart from the negative behaviours towards people (who are critical human capital) including female academics. The key proposed recommendation to address the risk factors due to COVID-19 identified in Johnston et al. (2020) is an organisational quality which is required more so now than ever: empathy. Empathy creates benefits for organisations from increased productivity, innovation, better engagement, collaborations, positive impression and impact and enhanced market value. This seems like a very organisation- focused perspective, but such a perspective is required to promote the business case for organisational empathy. In accounting terms, organisational empathy generates high ROIs.

Please contact me on tehmina.khan@rmit.edu.au to discuss and implement organisational empathy for a more equitable today and tomorrow.

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COVID-19 and Long-term Care
Sara Charlesworth | 29th of May, 2020

The COVID toll in aged care services has been devastating in many developed economies. A review of evidence by the International Long-Term Care policy network has found that the share of care home residents whose deaths have been linked to COVID-19 tends to be lower in countries where there have been fewer deaths in total. This is clearly the case in Australia where the COVID related death of aged care residents is 29% of all COVID related deaths. This is well below the rate for Canadian aged care homes which make up 82% of all COVID-19 deaths in that country. In the US, based on data from 45 of the 50 states, COVID-related deaths in care homes make up 41% of all COVID deaths. In the UK, care home deaths have only recently been included in national COVID data. In Scotland it is estimated that last week 55% of all COVID-related deaths occurred in care homes.

Reports on the impact of COVID-19 in long-term care have focused overwhelmingly on its impact in residential aged care. We know surprisingly little about what is happening to those frail older people who rely on home care services, although the Australian Department of Health has reported that as of May 18, there were three COVID related deaths among people who used publicly subsidised home care. While in the UK and US there has been some public recognition of the large numbers of hospital workers dying due to COVID 19, very little attention has been given to COVID related deaths of aged care workers. We do know, however, that by mid-May in England and Wales there had been some 136 COVID related deaths of social care workers, a death rate double that of the general population and indeed double that for NHS workers. To date there have been no aged care worker COVID-related deaths in Australia.

Clearly Australia’s public health response in long-term care has been exceptional in international comparison. While there have been some outliers such as Newmarch House in Western Sydney, early response and intervention has prevented the catastrophic outcomes seen in the UK, US and Canada. There has been widespread testing and transparency of information, with the names of aged care facilities, where even one resident or worker has contracted COVID, made public.

Once-off COVID government funding has also been provided to the sector.  For example, the federal government announced on March 20 that direct aged care workers will receive a ‘retention bonus’. Full-time residential care workers are to receive $800 for each of 2 quarters, that ending in June and that ending in September if they are still with their employer. Pro rata payments will be made to eligible part-time and casual workers.  Inexplicably, eligible home care workers will be paid only $600 on a pro rata basis for each quarter. Despite this initiative, a recent survey (run early May) by the Australian Nursing and Midwifery Association (ANMF) of just under 2000 aged care workers indicates that some 83% of respondents reported that their employer had not yet discussed this retention bonus with them.

Notwithstanding the excellent public health response here, COVID has exacerbated some severe structural issues in aged care sector.  Understaffing is a major issue in residential aged care as is the limiting of ‘time to care’ in home care services. In many ways, work organisation in aged care has been increasingly based on a lean, ‘just in time’ manufacturing model. Given this, what is baffling in the COVID era, however, is the loss of staffing and hours. Since the beginning of March 2020, the ANMF survey found 43% of respondents in home care reported staffing cuts, and in residential aged care almost a fifth reported recent cuts to staffing. Further, up to 80% of respondents in residential aged care reported that no staffing increases had occurred in preparation for a potential COVID-19 outbreak.  In home care, more than half the workers surveyed reported insufficient supply of PPE by their employer. Indeed staff working in the home-care sector were most likely to report not receiving recent information or training for PPE use.

We won’t ever have good quality aged care in Australia without addressing some fundamental decent work deficits in the sector, laid bare in the COVID crisis. We need wage rates that properly value the skills and experience used by aged care workers to ensure workers retention in the sector, not a once off retention bonus. We need to ensure far better working time security to provide the basis for the continuity and sustainability of care so critical in aged care.  Underemployment is already high in the aged care sector and yet during COVID many of these ‘essential’ workers have lost jobs and hours of work.

COVID-19 has shown that we need to build in decent conditions of work in long-term care, as well as the time, the staffing numbers and skill mix– not only to support the provision of high quality care, including social and emotional support for service users, but also to meet the regular demands of and the inevitable ‘regular irregularities’ that are part of the everyday life of aged care outside a pandemic.

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‘The Spirit of Australia’, just not in a pandemic: Qantas plays hard-ball on workers’ rights
Anthony Forsyth | 27th of May, 2020

Nine years ago, Qantas CEO Alan Joyce made himself a household name by embarking on a high-risk strategy in an industrial dispute that involved grounding the airline’s fleet globally.

Faced with months of flight disruptions from stoppages by the TWU (covering baggage handlers and refuelers) and the ALAEA (covering aircraft engineers) – and lower-level protests by the pilots’ union – Joyce rolled the dice.

He grounded the fleet ahead of a proposed lockout of the employees covered by the three unions, in a move calculated to have the then-Labor Government force the dispute into the Fair Work Commission (FWC).

The gamble paid off. Qantas’ main focus in the three sets of agreement negotiations had been to resist union claims to limit the airline’s ability to outsource and offshore parts of its operations. The resolution of each dispute (one by agreement, the other two by arbitration) saw the airline come out on top.[1]

This hard-ball approach can also be seen in the way Joyce has positioned Qantas in its handling of labour relations in response to COVID-19.

Qantas was the first major employer to stand down large numbers of staff (20,000 on 19 March,[2] and another 5,000 in early May[3]), as government restrictions to contain the virus ruled out most domestic and international travel.

The airline then denied stood down employees access to sick leave, a position it has defended successfully in the Federal Court. It has also adopted a combative approach to other employment flare-ups, challenging the jurisdiction of the FWC to deal with stand downs of engineers and a JobKeeper dispute.

The decisions in each of these cases, which were handed down this week, will now be considered.

  1. No sick leave for stood down Qantas staff

The interaction of the stand down provisions and personal leave provisions of the Fair Work Act is far from clear.

Qantas’ position is that there is no ‘work’ for employees who are subject to stand downs to be absent from. Therefore, there is no entitlement to paid sick leave under the Fair Work Act.

Justice Flick of the Federal Court of Australia upheld that argument in CEPU v Qantas Airways Ltd [2020] FCA 656 (18 May 2020).

Flick J observed that the purpose of employer stand down powers is to provide financial relief from the obligation to pay wages (where there is no work through no fault of the employer), and to protect employees from consequences that otherwise follow from termination of their services. The purpose of personal leave (including sick leave) is ‘a form of income protection’. Flick J resolved the contest between these two conflicting purposes as follows:

[31] … at the very heart of the ultimate conclusion, namely that an employee cannot access such leave entitlements whilst stood down, is the determination that such leave entitlements are an entitlement on the part of the employee to take leave from otherwise performing the work they are required to perform. It is the very characterisation of the leave entitlement conferred by s 96 as a “form of income protection” which presupposes that an employee is in receipt of income. As Qantas has repeatedly submitted, and correctly so, “‘income’ is not being protected if there is no available or required work from which to derive income in the first place”.

And further:

[35] … If there is no work available to be performed by the employee, there is no income and no protection against that which has not been lost. Conversely, to expose the employer to a liability to pay leave entitlements after lawfully having invoked the power to stand down an employee would defeat one of the two principal purposes of standing the employee down – namely, to protect the employer against such claims.

So, one of the purposes of stand downs wins out (relieving the employer of the liability to pay wages). Ignored in this conclusion are: (i) the other purpose of stand downs (protecting employees from adverse consequences); (ii) whether the purpose of sick leave (income protection for the employee who is unwell) could still be served in a stand down situation, especially for employees on sick leave prior to being stood down or who have contracted COVID-19 by continuing to work prior to stand down; and (iii) the fact that (as I’ve argued in a previous post)[4] the true purpose of annual leave is not being fulfilled during stand down, yet it is accessible to stood down Qantas workers.

  1. Engineers’ stand down dispute can’t be determined by FWC

The airline’s power to stand down aircraft engineers was contested by the ALAEA. It argued that while the pandemic had significantly limited Qantas’ (and Jetstar’s) operations, the trigger requirement for stand downs of a ‘stoppage’ of work was not met as there was still a need for some level of aircraft maintenance. The union notified the FWC of disputes over this issue. Qantas then applied for an injunction to prevent the FWC from dealing with the matters.

In Qantas Airways Ltd v ALAEA [2020] FCA 682 (19 May 2020), Justice Katzmann of the Federal Court granted the injunction. Had the stand downs been implemented under section 524 of the Fair Work Act, the FWC’s jurisdiction to deal with the disputes would have been clear. However here, the stand downs occurred under the provisions of Qantas and Jetstar enterprise agreements covering the engineers. The airlines were therefore able to raise questions as to the union’s alleged non-compliance with all of the steps in the agreement dispute resolution procedures before heading to the FWC.

Katzmann J was satisfied that the airlines had an arguable case on this point, and found that the balance of convenience was also in their favour:

[80] While refusing the injunction poses no immediate threat of irreparable harm to the Airlines and granting it would cause some prejudice to the ALAEA and its members, and while the position in which the Airlines find themselves is largely of their own making, it seems to me that the Airlines do fall over the line.

[82] … if the proceeding in the Commission were allowed to take its course, considerable expense may be unnecessarily incurred. The jurisdictional question should be resolved first and it is preferable that it be determined finally by the Court.

The question remains, though: why was Qantas so opposed to having a central question in the COVID-19 employment debate – the legal basis for employer stand downs[5] ­– determined by the FWC? Or was this simply a tactical move, putting the union to the cost and delay of a Federal Court action in the hope it would back down?

  1. FWC can rule on a JobKeeper dispute

Finally, Qantas had a loss this week (on the heels of its two wins). A stood down employee had notified the FWC of a dispute over the application of his JobKeeper payments. Essentially, it was a question about what constitutes a ‘JobKeeper fortnight’ for payment purposes under the relevant rules. The airline’s approach had left the employee (he claimed) with a shortfall of $852.30.

The FWC has jurisdiction over certain JobKeeper disputes under new Part 6-4C of the Fair Work Act. In the initial FWC proceedings, Qantas objected to the tribunal determining the matter, in part by arguing that it was essentially an underpayment claim. Deputy President Anderson ruled that this was not a matter that required the exercise of judicial power (as the airline had asserted), and that it fell within the FWC’s jurisdiction under Part 6-4C (which included disputes about whether an employer has met the ‘minimum payment guarantee obligation’ under JobKeeper).

In Qantas Airways Limited v Mazzitelli [2020] FWCFB 2628 (19 May 2020), a Full Bench of the FWC refused to grant the airline leave to appeal against the jurisdictional ruling:

[33] …  It is not in issue that the Commission may not, in dealing with a dispute, exercise the judicial power of the Commonwealth which, under Chapter III of the Australian Constitution, is conferred on courts established pursuant to that chapter. The Commission therefore cannot by arbitration determine whether Qantas has complied with s 789GD or s 789GDA, nor can it order Qantas to pay amounts to which Mr Mazzitelli claims to be legally entitled. However that does not exclude the possibility that the Commission may properly exercise its arbitral power under s 789GV(4) to deal with the dispute between Mr Mazzitelli and Qantas, even assuming the narrow characterisation of the dispute postulated by Qantas, having regard to the fact that s 789GV(4)(d) empowers the Commission to make any order it considers appropriate.

So, Qantas is arguing constitutional points in a less-than-$850 JobKeeper dispute. What is going on here? The pattern is clear from these three cases. It is part of an overall strategy which Joyce deployed successfully in the 2011 dispute. Go hard, don’t give an inch, spend a bucket on litigation if you have to … just win, no matter what the cost to workers who are also doing it tough in the midst of a pandemic.

[1] For a detailed account see Anthony Forsyth and Andrew Stewart, ‘Of ‘Kamikazes’ and ‘Mad Men’: The Fallout from the Qantas Industrial Dispute’ (2013) 36 Melbourne University Law Review 785.

[2] See: https://www.abc.net.au/news/2020-03-19/qantas-has-just-stood-down-20000-staff.-how-can-they-do-that/12069964

[3] See: https://thenewdaily.com.au/finance/consumer/2020/05/05/qantas-jetstar-coronavirus-cancel/

[4] See: https://labourlawdownunder.com.au/?p=802

[5] Katzmann J was alive to the broader implications of this case, at [98]: ‘The evidence indicates that the Airlines have stood down around 20,000 employees. Numerous other businesses have stood down employees in the wake of the current pandemic and the Government’s response to it. … The issues the ALAEA raises [about stand downs under the terms of enterprise agreements] also bear on the interpretation of [stand down powers under] s 524(1)(c) of the FW Act … . It is in the interests of justice that questions of such general and widespread application and importance be determined by a superior court and not left to private arbitration.’

Many thanks to Prof Anthony Forsyth for permission to repost his blog entry from COVID-19 & Work on the Labour Law Down Under website: https://labourlawdownunder.com.au/ 
(originally posted on 21st of May, 2020)

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Debates about what the post-COVID world should look like have turned to industrial relations. Despite the Prime Minister’s plea to move on from ‘old and stale ideas’, business lobbyists have returned to their old refrain: abolish awards as a means of revitalising the Australian economy.

For example, Peter Strong of the Council of Small Business told The Australian last week that Australia should follow New Zealand’s lead (from 1991) and scrap the system of industrial awards.

However, awards play a crucial role in Australia’s system of employment regulation by setting minimum working conditions for workers at the industry/occupation level.

First, awards give expression to the International Labour Organisation’s global goal of decent work: they provide detail on hours of work, pay, training requirements and so on which put a floor beneath which individual workers cannot fall. Sure, wage theft and other breaches of these standards have been permitted to spread in Australia (see last week’s post by Dr Tess Hardy), but this reflects failures in the funding and architecture of enforcement.

Without these detailed award standards, the following scenarios would be permitted by law:

* kitchen hands could be required to work from 5.00 am until midday, then from 4.00 pm until 10.00 pm with each hour paid the same rate of pay. There would be no span of ordinary hours, no prohibition on split shifts, no penalty rates or overtime payments without awards. Indeed, there would be no minimum wage either so expect current award rates to be cut along with everything else.

* employees could be asked to perform any functions consistent with their contractual engagement without the benefit of the training-based career structures found in many awards. The emergency COVID measures permit employers to direct staff to perform any function they have the competency to perform, but this is underpinned by the award protections such as a right to be paid higher duties if the worker is directed to perform higher level tasks. If there were no awards, there would be no classification structures ensuring higher level skills are rewarded with higher rates of pay.

Secondly, awards can respond to the needs of industries in ways that directly legislated standards cannot. In Australia, the Howard Government initiated a set of minimum working conditions in its Work Choices legislation, and the current Fair Work Act continues this tradition. Because these legal standards apply very broadly across the economy, they have to be expressed as general standards and be set at a suitable level for every different industry and occupation: the same statutory rule has to apply to nurses and coal miners, labourers and teachers.

One of the laments of neo-liberal philosophy is that the statutory regulation of working conditions is too rigid and too remote from the real world to be effective and efficient. In the system of award regulation, the Government has an important macro-economic and social policy tool, because awards can be regenerated and modernised with an eye to the particular needs of specific sectors.

Over the last few weeks the quick response of the Fair Work Commission to vary awards in order to allow businesses to adapt to the COVID emergency, with the consent of unions, shows how useful the award system is. So much more could be done to flexibilise and modernise work to maximise skills and participation.

Without awards, it is difficult to speedily diffuse such changes across an atomised labour market regulated only by contract law and a few general legislated rules. A return to unregulated managerial prerogative would lead not only to a degradation of decent work for Australians, but it would also condemn our labour markets to a stultifying race to the bottom with the loss of one of the most important tools of responsive labour regulation. 

Many thanks to Dr Jill Murray and Prof Anthony Forsyth for permission to repost this blog, originally in Anthony’s COVID-19 & Work on his Labour Law Down Under website: https://labourlawdownunder.com.au/. This site, as well as the current contributions on COVID & Work, provide very topical resources for those interested in the world of work.

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Covid-19 and the crisis of casualisation
Karen Douglas | 18th of May, 2020

Recognition of worker exploitation was a contributing factor to the formation of the International Labour Organisation (ILO), a tripartite body of national governments, workers and employers, formed in 1919 with the aim of bringing peace and social justice to communities via a focus on workers’ rights.

One hundred years later we are again considering the impact of poor employment arrangements on a significant part of the Australian labour market. The COVID-19 pandemic highlights the precarious position of casual workers across the Australian economy. Denied access to paid leave arrangements and subject to irregular work patterns and stable income the current pandemic presents opportunities for political, community and business leaders to question what sort of society and economy we want to develop in a post COVID-19 world.

Since the 1980s workforce ‘flexibility’ has been pursued on the basis it is crucial to increasing productivity and enabling more people to enter the labour market. In non-pandemic times about 25% of Australia’s workers are in casual employment, and many of them are in the paradoxical category of ‘regular and systematic’ casual worker. Cassells and Duncan (2020) note women workers are the majority of all casual workers and 57% of the long term casual workforce.[1]

Casual workers bring a suite of skills and knowledge to their employment; competencies employers rely on to deliver quality services. The social support and care sector is dependent on casual women workers. These workers provide support for daily living to people including the aged and those with significant disability. Many are now doing so in dangerous circumstances. Personal protective equipment is lacking and underfunding continues to place more pressure on workers to do more with less.[2]

In our own tertiary education sector there is on over reliance on casual employment. The skills and knowledge of casual workers is fundamental to the development of future problem-solvers, decision-makers and a skilled workforce.

Casual workers are critical to the health, well-being and education of our community. However, they are on the fringes when it comes to employment protection and, as we are seeing now, are being dispensed with at pace. Many are not eligible for the JobKeeper payment and continue to work out of necessity despite the health directions to stay home if unwell.[3]

No-one should be without an income or forced to work. Yet, this may be the situation for casual workers.

A post COVID-19 world must have at its core the rebuilding of a society that delivers economic security to working people.

Governments and employers have demonstrated over the last few months the well-being of people can be the focus of economic decision-making. These decisions have strengthened communities. Continuing on this path of security is key to our recovery.


[1]https://bcec.edu.au/assets/2020/04/BCEC-COVID19-Brief-4_Casual_Workers_FINAL.pdf

[2]http://unsworks.unsw.edu.au/fapi/datastream/unsworks:66998/bincdf1e78b-f5e3-470d-8601-ee2cdadb3d42?view=true&xy=01

[3]https://theconversation.com/if-we-want-workers-to-stay-home-when-sick-we-need-paid-leave-for-casuals-138431

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How will Australia respond to that ‘other’ Pandemic?
Lisa Heap | 12th of May, 2020

The World Bank refers to it as global pandemic affecting 1 in 3 women in their lifetime.  The UN calls it a “Shadow Pandemic”.  Violence against women and girls has in the past been estimated to cost over around US $1.5 trillion and yet the response to this other global pandemic has been nothing like that to COVID-19.  The unprecedented state and federal government response to COVID has been swift and comprehensive.  Organisations have also demonstrated just how quickly work arrangements can be modified and re-organised when the business need calls for it, that is when the alternative is no work will get done.  What COVID has shown us is how innovative and creative we can be when the issue is seen to be important enough, and when it’s not an option to ignore it.

The gendered impacts of COVID-19 have been documented over recent weeks. Women are the frontline of workers disproportionately exposed to COVID as they make up the majority of retail, healthcare, social care domestic and cleaning workers.  Economically they are also hardest hit.  They are the lowest paid. Casual and precarious workers are disproportionately women.  Women are more likely to have lost employment and to fail to qualify for supports like Job Keeper.   As the UN has stated a pandemic amplifies and heightens all existing inequalities.

Many of these workers have been exposed not only to the virus but to violence whilst performing work however this is nothing new. Prior to COVID the violence women experience at work in Australia has been clearly documented.  The National Inquiry into Sexual Harassment in Australian Workplaces reports that sexual harassment at work, a form of gender-based violence, was widespread and pervasive in our workplaces.  The report from this inquiry was released in March this year and now sits with the federal parliament.

So, what can be done?  The federal government should re-open discussions on the 4th National Action Plan under the National Plan to Reduce Violence against women and their children 2010–2022  to take account of the impacts of COVID-19. It should also immediately commit to ratifying the ILO’s recently adopted Convention on the elimination of violence and harassment in the world of work.  The Convention is a comprehensive framework, agreed to by governments, workers and employers, on the way forward to end all violence, harassment and gender inequality at work.  The Sex Discrimination Commissioner has recommended ratification of the Convention.  Her other recommendations provide a useful starting point for practical change.  Federal and state government, employers and unions should accept these recommendations and work collaboratively to implement them.  Workplace health and safety regulators can also start to stand up by adopting guidelines, such as those recently adopted by WorkSafe Victoria, and putting resources towards  assisting organisations to end gender-based violence at work.  These measures are only a few that could form part of a comprehensive plan to end this other pandemic.

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CPOW-CRIMT response to COVID-19
Kate Farhall | 7th of May, 2020

The COVID-19 crisis is rapidly reshaping the world of work, but it is also rapidly reshaping the world of work-related research.

CPOW is a key partner centre on the ‘Institutional Experimentation for Better Work’ project, headquartered at the Interuniversity Research Centre on Globalisation and Work (CRIMT) in Montreal, Canada and funded by a large Canadian government grant.

The Project seeks to build knowledge and understanding regarding how to make work ‘better’. Better work is work which is secure, meaningful and productive for workers. The focus of the project is on actors in the world of work, such as employers, unions and governments, who engage in social ‘experimentation’ by trying new ways of regulating and negotiating work’s challenges, and on whether that experimentation leads to improved outcomes for workers.

But what happens when the world of work is thrown into chaos by a viral pandemic, rapidly redefining whose jobs are valued, redrawing lines about who is worthy of government support, and further blurring the arbitrary boundaries we create between work and home? How do we capture this shifting landscape, while maintaining a focus on ‘better work’ outcomes, even as the crisis threatens to deepen social and economic inequalities? And how do we achieve all this in a time of social distancing and the strict regulation of movement and access?

The current situation poses new challenges to research into work and employment, at the same time as it presents new imperatives to capture data, information and experiences. Members of the CPOW-CRIMT partnership are seeking to address these challenges via the establishment of a digital repository of data and analysis regarding the impact of the COVID-19 pandemic on the world of work. This will be focussed through our major areas of research here in CPOW, as they articulate with the CRIMT ‘better work’ project:

  1. Precarious work;
  2. Inequalities and exploitation at work;
  3. Political economy of work (including the financialisation of work);
  4. Social care and support work; and
  5. Organisations and work.

This database will provide a robust and comprehensive set of materials that can inform future analyses, including future blog posts here at ‘CPOW in the Time of COVID-19’.

Later in the year, this work will continue to be developed via a series of workshops, and in conversation with our global partners on the Project. These discussions will outline the bases for future research, to ensure that the CPOW-CRIMT partnership is able to continue to generate meaningful, policy-relevant research and analyses that provide the basis for better, more decent, meaningful and equal work.

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COVID-19 and rights at work in Australia
Sara Charlesworth | 5th of May, 2020

Much has already been written on the groups of workers inadequately covered by the Job Seeker and Job Keeper funding that aims to provide income support to workers and businesses during the COVID lockdown here in Australia. Many casual workers with less than 12 months service with the one employer, many contracts, agency workers and gig workers fall through many of the gaps and cracks in these two schemes. Temporary visa holders, who have been plugging gaps in the Australian labour force for some time, such as working holiday makers and international students, are especially vulnerable. They are not currently entitled to receive any income support and rent assistance and do not have access to Medicare.

In the COVID era workplace rights still exist for these workers where they are employees, no matter their visa status or whether they are in casual or ongoing employment. However, very recently a number of these protections have been weakened. A CPOW industry partner, JobWatch, one of the longest standing employment rights agencies in Australia, has put out a very useful COVID–19: Employment Rights Q&A. These Q&As go to issues facing a wide variety of workers, both those mentioned above as well workers who have been until now in relatively secure employment. These issues include whether and in what circumstances, employers can direct workers to take leave or change their hours or duties. JobWatch also provides other useful links to COVID-19 advice information on the websites of  Victoria Legal Aid, the Fair Work Ombudsman and the Fair Work Commission.

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Insecurity for disability support workers amidst COVID-19
Raelene West | 29th of April, 2020

In the face of COVID-19, disability support workers, like aged care workers, are confronted daily with the risks of contracting and transmitting the virus. Most disability support workers have little option but to work as they know the support they provide is essential to life. They also need the income. Yet these workers have been virtually invisible in current public discussions of essential services, along with the people with disability they support.

Anecdotal accounts indicate support workers are providing personal care assistance with none or only minimal advice or training on risks of the virus and how to avoid infections. Of significant concern has been the lack of access to PPE such as gloves, face masks and hand sanitiser. People with disability have been forced to purchase gloves from supermarkets and workers have been bringing masks they have purchased or even sewn themselves to shifts. With people with disability mostly restricted to their homes, support workers in group settings and community access roles have been stood down or lost hours. The current COVID-19 crisis is highlighting the risks of an individualised market-based disability support system in which there is a heavy reliance on consumer choice and control to ensure acceptable quality and safety for worker. Some of these workers are without training, oversight or supervision. Perhaps it is time to acknowledge the value of the work undertaken by this highly casualised, undervalued and low-paid workforce.

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CPOW in the time of COVID-19
Sara Charlesworth | 24th of April, 2020

The impact of COVID-19 has been profound and disruptive – CPOW researchers, most of whom are active teaching academics, have had to reconfigure their work and non-work lives to meet the additional demands of online engagement with students. We have also had to rethink research projects in train as face to face engagement with the individuals, communities and organisations with whom we work has become impossible.

Most importantly, however, given CPOW’s mission to contribute to sustainable, fair and decent work for all, is the shattering impact of Covid-19 on more marginalised and vulnerable people and communities. As just one example, my own research is mainly concerned with low-waged women’s work, currently in the aged care sector. While there have been some system and organisational responses to limit the spread of COVID-19 to elderly residents and clients both here and overseas, there has been far less concern about the destructive impact on the lives of the frontline workers who provide aged care. In many countries, including Australia, workers are having their hours cut and rosters changed on a daily basis and many, especially in home care, do not have access to adequate personal protective equipment (PPE). A very recent study across England Wales and Scotland by 2018 CPOW Visiting Research Fellow, Professor Lydia Hayes (University of Kent) and her colleagues has found considerable concern among frontline care workers about adequate access to PPE, not being paid when workers are put into isolation and other COVID-related health and safety concerns. Elsewhere, too, frontline care workers, as both essential but forgotten workers, are falling through the holes of national ‘safety nets’ being hastily pinned together.

As CPOW researchers and fellow travellers we can make a difference by giving voice to many people and communities whose voices have been barely heard in all the COVID-19 ructions. That is why we are starting our CPOW in the time of COVID-19 blog. Please contribute via the form located at the bottom of this page, about the impact of COVID-19 on the people and communities with whom you conduct your research.

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Contribute to the CPOW COVID blog

If you would like to share your insights on how the COVID-19 pandemic is affecting the people and communities with whom your research is concerned, please complete and submit the form via the link below

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