Covid-19 responses have ushered in changes to workers’ rights. Women should be worried.
In partnership with the National Foundation for Australian Women (@NFAWomen), we are running a series of pieces that analyse how the Covid-19 pandemic is differentially impacting on women. In today’s analysis Kathy McDermott of NFAW provides the second in a three-part series that looks at women and employment. Today’s piece examines changes in legislation that are curtailing worker’s rights.
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Because employment is gendered, the impact of the coronavirus on employment is also gendered. Because women are disproportionately represented in direct contact employment and the retail and hospitality industry, more women than men are losing their jobs -- 272,816 in hospitality alone as of 23 April.
Women are also disproportionately represented in frontline crisis response roles: 80 per cent of healthcare workers are women and 70 per cent of pathology services are provided by women. Women predominate in most of the essential support services and among the workers that cannot stay home: the teachers, aged and childcare workers and hospital cleaners. Social services are under pressure from the virus and most social service providers are women: social workers, mental health support workers, frontline domestic and family violence workers, child support workers.
Because employment impacts of COVID-19 are gendered, so are the impacts of the measures taken by the government to address employment. This analysis looks at:
changes being made to the rules of work: where and what they are, and what longer-term threats they pose to employee rights (this piece).
the public image of frontline and social services work, and its implications for equal pay (Part 3).
Broadly speaking, the JobKeeper payment is undoubtedly a welcome initiative, and supportive of many women in paid employment, particularly part-timers and casuals who have passed the 12-month benchmark -- but it does come with strings attached. The coronavirus crisis has meant that the regulatory rights of employees were made to give way to the needs of employers.
Unions wanted this process to be managed through the award system by negotiation, and many such changes were made. However, several employers and the Commonwealth government wanted to step in and change the Fair Work Act itself. That approach was pursued, with the government arguing that a single legislated regime would enable the JobKeeper scheme to operate with greater speed and certainty.
Schedule one of the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 enables an employer to –
stand down an employee by directing them to work fewer days or reduced hours if the employee cannot be usefully employed because of the impact of the COVID-19 crisis on the business
direct an employee to work from a different location, such as the employee's home
direct an employee to undertake different duties than usual, where the direction is safe to do so and reasonably within the scope of the businesses' operations, and
request that an employee agree to change their days or time of work or use some of their annual leave, provided it does not result in the employee having a balance of less than two weeks annual leave.
Legislative changes in response to COVID-19 are eroding worker’s rights. Will this be a permanent set-back? Photo by BBH Singapore on Unsplash
While insisting on legislating its changes, the Government did accept the arguments of unions and opposition parties concerning the need to insert some safeguards in the legislation in addition to those italicised above. Some of these changes plug very considerable holes — for example, the new employer prerogatives have been restricted to those employers actually eligible to use JobKeeper rather than applying to all employers. And the changes to the Fair Work Act itself are to sunset on 28 September 2020. Amendments also ensure that rates of pay are protected – rather than being artificially capped at the $1,500/fortnight wage subsidy --- ensuring employees are properly paid for all work undertaken at the legal hourly rate of pay.
Some measures have been introduced to encourage employees’ concerns to be heard. Variations to working conditions should only be made after consultation and in many cases require the agreement of employees, and disputes are to be arbitrated by the Fair Work Commission to ensure reasonableness and fairness. Already there are disputes about what does and what does not constitute safe work.
Following an initial lack of clarity about whether employers will control their employees’ eligibility for the scheme (see p. 23), the Government has indicated the intention is that all eligible employees of a business should be included (one-in, all-in). However the application of this policy to dismissed employees is not widely understood, and this lack of clarity constitutes additional leverage for employers -- who may fail to distinguish between the changes they may direct an employee to make and those which they may request.
Where confusion arises, employees might well look at the job market and hesitate to make use of any safeguard that might personalise them. In some cases this may lead to the acceptance of cuts to wages or hours. In other cases of which NFAW is aware in the education sector, it can lead to increased workloads without overtime pay or other workload adjustments being offered to deal with the increased load.
In this environment, the government has put in place rules that enable the Minister to make unilateral ongoing changes to Fair Work regulation. The Minister has already made use of those powers, radically cutting the required notice period from seven days to one when giving their employees before calling a vote on a proposed changes to enterprise agreements. The Fair Work Commission will be able to consider applications to approve these agreement variations for a further six months after JobKeeper sunsets.
Porter’s rule change has been done in the name of increasing employer flexibility, and will indeed give employers scope to put wage cuts to the vote before employees have had time to examine or discuss their necessity. This means that, while award wages are minima, agreements may set higher rates and may therefore be reduced back to minima.
This is concerning, because it is both unnecessary and has consequences that last well beyond the JobKeeper end date. It is unnecessary because under JobKeeper employers can already stand down an employee by directing them to work fewer days or reduced hours, leading to a loss of earnings down to the $750 pw floor. Under Porter’s rule change, such cuts can be made to wages as well as hours and can be locked into agreements. Agreements typically last between 2 and 3 years, but remain in force until they are replaced or terminated, and replacement rates were last reported at about 35% (see chart 10). Porter’s rule change is not a temporary measure, but it does leverage a temporary job insecurity in a pandemic climate. Opposition parties have signalled an intention to try to disallow the change.
There may also be new problems associated with an anticipated long-term shift to working from home which will have yet to be addressed through the award system. A recent briefing paper by Alison Pennington and Jim Stanford titled Working from Home in a Pandemic: Opportunities and Risks found that, based on their occupational distribution, an estimated that 36% of women could work remotely (given adequate time for adjustments and systems changes), versus 27% of men.
The risks identified by Pennington and Stanford include:
cost shifting from employers to employees (including fixed up-front costs for setting up an appropriate home workspace, extra utility costs, extra depreciation on personal capital equipment, and direct costs for paper, data, etc.);
ongoing work-related costs (including space, data charges, utilities, and printing);
threats to standard and predictable working hours and compensation for overtime; and
the extension of employer digital surveillance into the home via monitoring of computer use, smart phones, and other technologies.
For many women there is the further risk that home-based work will continue the blurring of part-time and full-time working hours and exacerbate the stressful daily juggle between time spent in paid work and time spent in caregiving.
Undoubtedly JobKeeper is an important and positive initiative, and many women will benefit from it. The government has argued that in order for it to be delivered, employees’ rights had to be made to give way, and the loss of such rights is most dangerous where they apply to low-paid, part-time and casualised employees. Thus far, the temporary suspension of workers’ rights is largely being offset by the temporary targeting of support. However, new employer prerogatives should not be allowed to reshape practices beyond 28 September 2020.
This post is part of the Women's Policy Action Tank initiative to analyse government policy using a gendered lens. View our other policy analysis pieces here.
Posted by @SusanMaury @GoodAdvocacy