09 December 2016 ~ 0 Comments

Campaigners’ Working Rights


itsaboutworkersrigtsDo progressive organisations have a responsibility to live their values in their workplaces? Can campaigning organisations demand progressive change without demonstrating that we adhere to its basic values – treating people with dignity, people having the right to be involved in decisions that affect them, acting together in our collective interests?

Clare Ozich from Australian Institute of Employment Rights and Jake Wishart from the Media Entertainment Arts Alliance presented a session for the Melbourne Campaigners’ Network on Thursday 17 November.

The session:

  • Considered some of the current trends on work and their relevance to progressive campaigning;
  • Provided a brief overview of the workplace relations system with a focus on the rights and entitlements of workers, with a specific focus on the difference between being an employee or an independent contractor;
  • Presented tools for developing good workplace cultures; and
  • Discussed the importance of collective action.

Political and social context

We started with looking at trends in work and specifically the trend towards greater insecurity and precarity. This is a core challenge of our contemporary world. It is not inevitable but a result of decisions successive governments have made about the structure of our economy and the regulation of work.

These are mechanisms employers are using to avoid entitlements and keep work precarious:

  • Casualisation: Australia has a very high rate of casualisation of the workforce;
  • Independent contracting: engaging workers as contractors rather than employees to avoid entitlements;
  • Unpaid interns: a rising trend in Australia;
  • Labour hire: increasingly used to shift risk (see CUB dispute);
  • Supply chains: responsibility shifts when work is contracted out (see exploitation of Chuggers);
  • Short term contracts being rolled over: employees have entitlements but little security.

All these mechanisms are present throughout progressive organisations and they are also all legitimate in certain circumstances. Financial resource constraints are a big issue but should never be an excuse. Organisations using these forms of employment to avoid entitlements are exploiting people just like the capitalist businesses we often campaign against.

Technology is not driving these changes. Businesses are utilising technology to advance these trends – to shift the risk of business from capital to labour. Technology is disruptive but it is not disrupting the relationship between capital and labour. We can decide how technology will be used – to promote our values or to undercut them.

Another discernible trend in progressive organisations in particular is the spirit of entrepreneurialism or start-up culture. The start up culture is not all bad – we need new ideas and new ways of being in the world. But when it fails to acknowledge the power differential between employers and workers we start to get into troubling areas. Too often entrepreneurialism is used to cover up avoidance of workers rights in the same way casualisation has been used. Claiming “people want to be freelancers” is just shifting responsibility for how work is structured from the business to the workers. The simple test is to offer people the choice of a permanent position.

There was also discussion about how if organisations do not create decent jobs with wage rates and conditions to meet basic needs, that will limit diversity.

Workers’ rights 101

Basic structure of the system of rights

The Fair Work Act is structured around the employment relationship. People need to be an employee to access most entitlements.

The basic structure of wages and conditions for employees is:

  • National Employment Standards are statutory minimum standards, including minimum wage and leave entitlements.
  • Awards cover employees on an industry basis with minimum wages for types of work and some industry specific conditions.
  • Enterprise agreements are collective agreements negotiated between an employer and their employees at the enterprise level.
  • Individual agreements sit on top of awards and are negotiated between an employer and an individual employee.

Other important entitlements employees have access to:

  • Protection from unfair dismissal
  • Protection from discrimination and bullying

Contractors vs Employees

A growing issue across the progressive movement and in many campaigning organisations is the structuring of work around independent contractors rather than employing people as employees.

The workshop considered the criteria to determine whether a worker is an employee or contractor.

The impact of being hired as an independent contractor rather than an employee includes having no rights to:

  • Entitlements such as annual, or sick leave or superannuation;
  • Unfair dismissal protection; and
  • Collective action.

The workshop discussed a few examples of jobs that could potentially be characterised as part time employment contracts, but were offered on the basis of an independent contract.

The Fair Work Act contains sham contracting provisions that allow the Fair Work Commission to determine whether a worker is an employee or genuine contractor. If found to be an employee, the minimum wage rates and other entitlements apply.

As well as the impact on the workers of being denied access to a number of entitlements and protections, there is a significant reputational risk for organisations in structuring work as independent contracts, if the work could be characterised as an employment relationship.

Workplace culture

It can be relatively easy to follow the law but that doesn’t guarantee a decent workplace environment, or that workers are not being exploited, or that the progressive movement is not contributing to the trends towards precarity discussed above.

The Australian Institute of Employment Rights has developed a tool, the Australian Charter of Employment Rights, to assist employers and workers to create workplace cultures that provide decent work.

The Charter consists of 10 principles – some of them have already been covered and are straightforward, eg minimum standards, protection from unfair dismissal, safe workplaces. The discussion at the workshop focused on four of the principles: good faith, work with dignity, workplace democracy, and union representation. These principles are directly connected to the values most progressive organisations ask from others in their work.

  • Good Faith – Every worker and every employer has the right to have their agreed terms of employment performed by them in good faith. They have an obligation to co-operate with each other and ensure a “fair go all round”.
  • Work with Dignity – acknowledgment that labour is not a commodity; that workplace relations is about relationships between people and people should be treated with dignity.
  • Workplace democracy – Workers have the right to participate in the making of decisions that have significant implications for themselves or their workplace. Workers co-operatives are one example of workplace democracy. Another example is the establishment of committees containing both management and workers, which meet to discuss and decide issues to do with the workplace.
  • Union representation and membership – the best way to ensure your rights and entitlement is to join a union and engage with your colleagues in collective action in the workplace.

Management in progressive organisations can fall quickly into a role of employer that is adversarial and defensive. It doesn’t have to be this way and shouldn’t. If anything we should be modelling how to create co-operative workplaces where rights and obligations are met.

Collective Action

Finally, the workshop discussed the role of collective action and heard from people who were involved in negotiating collective agreements in their organisations.

Key points: it takes time, it is hard, but it makes for better working conditions. Seeking advice from people in similar organisations that have done it before is very useful. JOIN YOUR UNION

Progressive employers should embrace negotiating collective agreements and respect their workers for initiating collective action. It is what progressive campaigns seek to do everyday.

For most people working in campaigning organisations, the relevant union is the Australian Services Union (ASU). If you work in communications you can join MEAA. If you are not sure which union to join you can find out from the ACTU.

AIER is available for advice and training on establishing good workplace cultures.

The Young Workers Centre is available to give advice to young workers.

Interns Australia is an advocacy group for interns.

The Fair Work Ombudsman is the government agency responsible for enforcing the workplace relations laws.

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