The pandemic reignited important debates concerning the future of work, and the value we place on essential industries and those who work in them. Last year, workers who have historically been made invisible were thrust into the political spotlight and praised as heroes. For a brief moment there was an uncomfortable acknowledgement that some of the lowest paid and most precarious workers in this country were doing much of the work that really mattered, prompting calls for a progressive new vision. One year on, however, it’s clear that Australian labour laws and workplace trends are moving in the opposite direction, signalling a regressive future for the world of work—if we allow it.
As many sectors came to a standstill in March 2020, a stark contrast was drawn between those who could comfortably transition to working-from-home arrangements—the working parents who took up the difficult ‘double shift’”—and those who continued to show up to work every day, albeit now with face masks and gloves. A run on toilet paper prompted many to consider—seemingly for the first time—how products get made, by whom, and under what conditions. High rates of workplace transmission among precarious workers politicised the issue of insecure work and gained public interest.
Heroes and villains: anti-worker hostility persists
Despite much fanfare, the public conversation about essential workers remained fraught with tension. On one hand, the precarious and often exploitative working conditions of many essential workers were revealed, and for a few fleeting months the public took notice. On the other hand, however, a genuine acknowledgment that care workers, cleaners, warehouse workers and food-production workers—among many others—produce significantly more social value through their labour than the average executive is a challenge to the classist hierarchies of work. As such, for the most part, the Australian political and media class remained uncomfortable in the suggestion that frontline workers—primarily women, international students, migrants and older workers—are not low skilled or disposable, but essential.
Hollow praise and applause for essential workers never gave way to serious discussion of the social value of labour, pay increases for essential workers or the abolition of insecure working arrangements. Instead, much of the public discourse reinforced the notion that insecure work is unfortunate yet inevitable—a risk to be managed in the interest of public health. Victorian premier Daniel Andrews labelled insecure work ‘toxic’, and responsible for Victoria’s second wave, contributing to 80 per cent of new COVID-19 cases. However, this did not address the main systemic driver of precarity:, the fact that many essential industries have endured decades of neoliberal restructuring in order to erode workplace conditions and safety in favour of minimising costs and thus maximising profits for the owners. Insecure work isn’t a glitch; it’s by design.
Rather than investigate the historical erosion of workplace conditions, mainstream media outlets ran stories of individual workers doing the ‘wrong thing’—working multiple jobs across sectors (due to widespread underemployment), working when sick (in the absence of paid sick leave), or unwittingly spreading the virus to patrons (where no PPE was supplied). Very quickly the narrative shifted from praising workers to blaming them.
Focus on individual workers obscured the social responsibility of employers, some of whom were actively undermining worker efforts to keep their workplaces and communities safe. In Victoria, school cleaners spoke out against employers who denied their requests for time off to await COVID-19 test results. At an industrial laundromat in Dandenong, workers successfully fought for their workplace to be thoroughly cleaned despite threats from their employer. In Melbourne’s west, warehouse workers were physically shut inside their distribution centre when they attempted to cease work over health and safety concerns. Such events took place in unionised workplaces—one can only imagine what happens in the shadows.
The Industrial Relations Omnibus Bill signals a dangerous future of work
At a time when the state should step in to protect basic workplace conditions, the Morrison government has instead introduced a suite of measures that seek to expand insecure work, undermine unions, and grant employers new powers to control and discipline their workers. Introduced by Industrial Relations (IR) Minister Christian Porter in December 2020, the IR Omnibus Bill signals a dangerous trajectory for the future of work in Australia. These measures underpin ongoing IR reforms to systematically weaken existing protections and implement greater flexibility—a well-worn euphemism that has roused concern among unionists that WorkChoices-era reforms are being reintroduced by stealth.
Scheduled for debate and review in March 2021, the IR Bill is expansive and addresses issues discussed in 2020 working groups consisting of employer groups and unions. The subsequent recommendations, however, are not in the spirit of compromise but come straight from the boss’s wish list.
Employers decide who is a casual worker
Employers and unions alike have long wanted to solve the problem of defining casual work, particularly in the context of gig work. The Bill introduces a new definition of casual employment into the Fair Work Act 2009 (Cth) that grants employers the power to decide who is a casual worker. So long as the employer makes no ‘firm advance commitment’ of continuing and indefinite work and the employee accepts the job on this basis, then they are a casual worker.
After twelve months employers must offer a permanent position if the employee has worked six months of regular shifts, but employers can easily vary rosters to avoid meeting this condition. This measure in effect disincentivises regular and predictable work scheduling. Failing this, employers can simply deny permanent employment on ‘reasonable grounds’, which are defined in the broadest possible terms.
New measures also seek to prevent ‘double dipping’ by casuals, a preoccupation of employer groups that is predicated on the myth that casuals receive 25 per cent loading in addition to leave benefits. A report published by the Australian Council of Trade Unions (ACTU) in 2018 showed that the casual premium is in reality 4 per cent to –5 per cent compared with the pay of permanent workers, and around one third of casuals reported not receiving any casual loading at all. Many casual workers, in particular labour-hire workers, are paid less than permanent workers in addition to not receiving any leave entitlements.
These attempted changes to casual employment are not in response to the pandemic but to an important 2020 Federal Court decision—Workpac v Rossato—which found that casuals who worked regular and predictable hours had been made a ‘firm advance commitment of work’ and as such were in fact permanent employees entitled to back pay of leave entitlements. Employer groups and business lobbyists have been on the offensive ever since, which is why the IR Bill grants employers the power to define casual work as they see fit.
Deregulating permanent part-time work
The Bill will also allow the Fair Work Commission to vary modern Awards—minimum rates of pay and employment conditions across industries. Of note, the introduction of ‘part-time flexi’ in twelve key Awards in the retail, accommodation and food-services industries seeks to deregulate permanent part-time provisions by stripping overtime rates. For instance, the Bill would enable an employer to have an employee work their regular sixteen hours per week plus an additional sixteen hours (maximum thirty-eight hours per week) at the regular rate of pay without overtime. This removes the conditions that make permanent part-time work distinct from casual employment. Workers most likely to be affected are women, young workers and low-income earners.
Undermining unions and minimum standards
The Bill also allows employers to bypass the Better Off Overall Test (BOOT) for two years. The BOOT is foundational to Australia’s current IR system as it ensures that workplace agreements cannot fall below minimum Award conditions. This is particularly important for workers subject to non-union agreements, and members of the workforce who are particularly vulnerable or may not know their rights at work. The suspension of the BOOT echoes former prime minister John Howard’s WorkChoices era, during which the ‘No Disadvantage Test’ was abolished, allowing subpar non-union agreements to proliferate.
Suspension of the BOOT has drawn criticism from unions and will likely be stopped in the Senate, where minor parties hold the balance of power. Regardless, any attempt to undermine basic workplace protections signals the dangerous intentions of employer groups and the Morrison government. The BOOT may be salvaged, but all other measures are still on the table and could become law. Any attempt to undermine the BOOT signals regressive intentions, as minimum rates of pay should be increased to keep pace with the cost of living, not dismantled.
Employer powers extended, again
Raising alarm from unions, the JobKeeper measure directed much-needed wage subsidies to employers rather than workers while granting employers significant new powers to control workers. The IR minister sought to quell concern by assuring unions that the new powers would be limited by a sunset clause expiring September 2020. However, this has since been extended to March 2020, and the IR Bill seeks a further two-year extension. Under the measure, employers have the power to stand a worker down, direct them to work fewer hours, and change the duties, location and time of work—with only three days’ notice. These dictatorial powers further erode mutual reciprocity in the employment relationship and encourage toxic workplace cultures of worker passivity and deference.
Where’s the carrot?
Supposedly, the balancing measure of the Bill will be to introduce harsher penalties, including jail terms and fines, that criminalise wage theft. However, the maximum penalty is too low and unlikely to be applied in any case. Federal wage-theft laws would override existing state-based laws in Victoria and Queensland that are arguably stronger and better targeted.
Wage-theft laws do not address the structural causes of wage theft, such as outsourcing and subcontracting, which are predicated on skimming wages. Overall, wage-theft laws are unlikely to discourage wage-thieving bosses who know they won’t be caught. The best deterrent against exploitation is an engaged and unionised workforce that is empowered to keep their employer honest. Rather than tackle the root cause, the IR Bill only gestures to wage theft in a superficial way while making it harder for unions to negotiate enterprise agreements that protect workers.
The disciplining threat of unemployment
For the precariously employed, the distinction between employment and unemployment is often trivial. The expansion of insecure and nonstandard forms of work means more workers are cycling between precarious jobs and unemployment payments, or supplementing poverty wages with welfare benefits. By international standards Australia’s welfare system is tightly targeted, coercive and inefficient. Australia is the only country in the OECD to outsource the entirety of its publicly funded employment services to the private sector, resulting in a predatory network of job service providers, a punitive mutual-obligations regime and robo-debt.
The doubled JobSeeker measure that temporarily lifted thousands out of poverty has been scrapped, with bipartisan support for measures that punish the poor and the unemployed. The JobMaker hiring credit will further incentivise the expansion of underemployment and casual jobs through the provision of a wage subsidy for employers who take on young workers in low-hour contracts. For instance, a company can double its subsidy earnings by employing two workers at twenty hours a week each rather than one full-time employee. In this context, employer groups, Australia’s welfare system, and changes to labour laws act in concert to discipline workers into accepting the lowest conditions and driving a race to the bottom—albeit one that is highly profitable at the top.
Insecure work is about control
The employment relationship plays an important role in constraining the power of employers, but the standard employment relationship that characterised postwar Australia has broken down, giving rise to the re-emergence of deeply precarious models of organising work. Rising precarity can affect full-time workers too, referring not only to the hours and duration of employment but also the quality, conditions and enjoyment of work—factors that have been in decline for several decades.
Insecure work is a powerful de-unionisation strategy. ABS data shows that less than 5 per cent of casual workers are union members. A significant reason for this is that insecure work is conditional and imposes high costs—including loss of employment—upon workers who act in any way that is unfavourable to their employer. Put simply, if the choice is between joining a union or potentially losing shifts, most workers will opt for survival.
Employers can constrain worker autonomy through a range of legal mechanisms that systematically weaken the employment relationship or outsource it entirely: labour hire, sham contracting, piece rates, casualisation, opaque supply chains, digital platforms and more. Low union density in precarious settings weakens the bargaining power of all workers. If successful, the IR Bill will further entrench these problems.
More gigs—what’s old is new again
Australian IR changes are taking place against a backdrop of social and political forces such as technological change, a stagnating economy, and working-from-home arrangements. In this context it is likely that gig work—the process of breaking a job down into discrete tasks that are quantified and compensated for on an individual basis—will proliferate. While exploitation within on-demand delivery services is well reported, gig work is steadily expanding into health, care and service industries as well.
This has a historical precedent. The nineteenth-century ‘putting-out system’ was a form of proto-industrialisation that sought to contract out work to be completed in the home or at off-site facilities. Closely aligned with the piece-rate system of the textiles industry, the manufacture of small firearms and other light industries operated in this way also.
A high-tech putting-out system has been revitalised by working-from-home arrangements. Disaggregating production and service work to the home, or anywhere with an internet connection (a cafe, a public library), is a cost-saving strategy of modern capitalists. Rather than absorb the costs of maintaining an office, employers can create virtual factories comprising workers who only meet online, drawing in labour from across borders and temporal zones. In the context of insecure work this will likely increase instances of virtual outsourcing and bogus self-employment.
Whether the centralised production line or the home office, control remains an important feature of any system of work. In 2020, sales surged in technologies that can track and monitor workers remotely while speeding up the pace of work. Extending earlier management techniques that relied on direct human supervision, algorithmic management enables the scaling of operations using data and surveillance to optimise for desired outcomes, including lower labour costs. As critical historians of technology David F. Noble and Langdon Winner have shown, technological development in the workplace favours the interests of the dominant class and will often sacrifice efficiency gains in favour of greater control over workers and the labour process.
Organising for a new world of work
Despite the challenges, there are moments to be optimistic. In the past twelve months Australia has witnessed a surge in industrial action and several unions recorded membership growth at a time of rising unemployment. While fleeting, the spotlight on essential workers has drawn critical attention to many areas of work that were rarely considered in public debates before the pandemic. However, status quo organising and public acknowledgement will not be enough to fend off many of the upcoming challenges.
Unions, climate activists and social-justice groups must organise across the working class, not by employment status. All workers—employed or unemployed, gig workers or permanent, Australian citizens or temporary migrants—need powerful unions and grassroots movements that will organise at the sharpest point of exploitation. Unions should leverage the industrial power of high-density sites to support the struggles of more precarious industries. United Workers Union campaigns that connect workers across the supply chain are a case in point. The actions of warehouse workers to leverage their industrial power in solidarity with farm workers are a powerful example to follow.
Union organising must be on the offensive and anticipate anti-democratic technological developments before they arrive in our workplaces. Australian unions can look abroad to the United States and United Kingdom for early warning signs to pre-empt future trends. If we continue only to react, we will remain on the back foot, and new management tactics to monopolise power and control over workers will continue to outpace organising efforts.
Ensuring workers have job security is an important first step that can enable new models of greater worker ownership of production. From here, workers could engage more holistically in social and political life. Economic security also facilitates stronger community organising for broader social-justice issues of the climate crisis and international solidarity. Once the floor is raised, the struggle for shorter working hours and more leisure time for all should again be taken up as a priority for all workers.
What’s really essential?
In 2020, the virus of insecure work laid bare a status quo that reproduced inequality and exploitation for too many, for too long. This year and beyond there exists an opportunity to reflect upon the lessons of the pandemic and decide what comes next. We must drastically rethink what is really essential. Who creates values, who simply extracts value, and what forces in our society are actually destroying value? The future of work in Australia is steadily moving along a dangerous path and course correcting will not be easy. The tremendous power and value of essential workers must be held firmly in the spotlight as we chart our way forward.
Change the Rules
Damien Cahill, June 2019
Breaking the rules to change the law.
Excellent article! Australia is currently experiencing the biggest expansion of casual employment in its history. The pandemic has really revealed just how vulnerable ‘casual’ workers actually, and rather than addressing this precarity, the Government’s new reforms seek to entrench and expand it. It’s clear beyond a doubt that the Omnibus Bill was born out of fear that employers will face claims from workers they’ve routinely misclassified and deprived of security, rather than out of concern for these very workers.