Flexibility the key for progress in work reviews

October 27, 2015

Considerable attention has been paid by media and politicians to the issue of penalty rates during Productivity Commission and Fair Work Commission deliberations this year.

In particular, the FWC’s Four Yearly Review of modern awards saw the usual battlelines drawn when proposed changes to penalty rates in the Hospitality Industry (General) Award 2010 were raised, despite the fact that everyone accepts that times have changed since the original provisions were set down in the 1950s.

As a former ACTU leader and Labor Minister, I find the ‘head in the sand’ attitude of some current union executives and politicians depressing.

There is a very simple and unarguable point to be made that 150% of nothing is nothing. If a business doesn’t open on a Sunday, then how does the worker benefit?

Even worse is the case of public holidays. The arbitrary and reckless decision by the Victorian Government to legislate for a public holiday on the eve of the AFL final proved as much of a fizzer as the game itself. Yes, there were restaurants and bars open in the Melbourne CBD, and some may have done good business, but outside the CBD it was more a case of closing, reducing hours or staff, or accepting a loss because of the prohibitive penalty rates.

We are not arguing against penalty rates per se, but rather counter-productive penalty rates that help neither businesses nor workers.

During the FWC hearings into the Hospitality Award, AHA and TAA also argued for other changes to the Award that would benefit businesses and workers.

We are calling for greater flexibility in part-time work provisions.

As part of our submission we presented evidence from a range of hospitality industry businesses across Australia including stand-alone regional and suburban pubs, a small pub group, accommodation hotels, and caravan and holiday parks.

The current part-time employment provision in the Award requires an employer and part-time employee to agree on an arrangement specifying the employee’s total weekly hours of work, the specific days and the actual starting and finishing times these hours will be worked. Any time worked outside of this arrangement is to be paid as overtime; and the only way to vary the arrangement is by way of a written agreement between the employer and part-time employee.

This explains why just 3.66% of employment is part-time, because the trading patterns in the hospitality industry vary significantly, and the inflexibility causes most employees to be taken on as casuals if they don’t want to (or can’t) work full time.

Having the certainty of a part-time contract can be very beneficial for employees, especially in obtaining loans and signing rental and lease agreements. A part-time contract guarantees a certain number of hours, where as a casual agreement provides no such certainty for employees.

Unfortunately, the current part-time clause does not offer employers any flexibility in relation to rostering part-time employees to accommodate changes in trade.

What AHA and TAA have proposed in its evidence and submissions is for a change to the part-time employment clause, which would allow an employer and part-time employee to agree on their total weekly hours (or average weekly hours over a four week period), and the days upon which those hours can be rostered. This would allow an employer to change a part-time employees’ roster to accommodate week-to-week changes in trading patterns, whilst guaranteeing an employee a set number of hours each week. The hours could be rostered across the agreed range of days (up to five days per week).

We believe that this change would address the key disincentives preventing employers agreement from moving more casual employees into permanent part-time roles.

What our industry desperately needs is a more committed workforce. Casual roles do not allow for the same levels of career and professional development that permanent roles do, but given the inflexibility of current part-time work provisions, it is totally understandable for hospitality organisations to opt for casual above permanent roles. Hospitality businesses need to be flexible, and it’s time that award provisions reflected that.