Employment Entitlements: History, Diversity Access and Protection

By Neale Towart

Employee entitlements have become a big issue with the federal government introducing a scheme, unions trying to get broad and flexible attangements in place, and debate rages over how it will be paid for.

Employment benefits or entitlements, or one, or the other. There is a big question of the definition of what an entitlement is, and what a benefit is, but the terms were used fairly interchangeably at a conference at the University of Sydney on 12 November 2002, convened by the Discipline of Work and Orgnaisational Studeis at the University of Sydney, and the Employment Studies Centre at the University of Newcastle.

An excellent collection of speakers looked at:

· the history of entitlements in NSW;

· the legal point of view of how protected those entitlements are in the event of corporate collapse and restructure;

· the impact of the introduction of enterprise bargaining on the entitlements of employees;

· the access casual employees have;

· the need for the modernization of long service leave as we se the huge structural changes in the employment relationship;

· the problem of work based superannuation for women whose work life does not follow a solid 40 year at the coalface pattern;

· provision of and access to childcare;

· maternity leave, caring leave - broadening the definitions and improving rights

· the hopeless history of family-friendly benefits provision in Australia; and

· the protection of the accumulated benefits employees have via trust funds or insurance

Greg Patmore did what is becoming his traditional task and showed us how the demands for better access to various types of leave have a history of union and legislative activism behind them. This is particularly so in NSW through the 1950s, where the Labor Council and the Cahill government made great strides. Sick leave was improved, long service leave introduced and annual leave extended. Greg's point was that there were various political forces that coalesced to get these improvements, with unions acting to improve conditions for members, and the impact of what Ray Markey and others have called Laborism. The left was pushing post war for great changes in the employment relationship and conditions (the focus being on working hours) and the state ALP and used changes such as these to keep the lid on worker demands, and also later on to work against the Industrial Groups (by refusing to introduce compulsory union membership).

Susan McGrath-Champ asked the question of whether employers have benefited since the introduction of enterprise bargaining and the move away from awards by changing entitlements to employees and via declines in wages growth. She admits that grappling with vast quantities of data make this a difficult question, and that she is still working her way through it all from various angles, but put forward a tentative yes.

What we see in terms of entitlements/benefits is a greater diversity, which may be a good thing in some instances, but with the corresponding decline of unionism and the attack mode of employers, it seems to be the case that employees are suffering.

Enterprise agreements initially basically expanded on award provisions, but now awards have declined in influence and enterprise agreements are now more comprehensive in scope. As Ron Callus pointed out later on, in relation to the AMWU/AWU Manusafe campaign, the broad over-award demands they are making had much more scope for universal flow-ons when the award system provided the base. With awards at federal level having been stripped back (now under further attack from the Federal Government) few workers will benefit from the success of such campaigns at the enterprise level.

There has been a move by the federal government to protect employee entitlements in the wake of some high profile corporate collapses (where unions have run strong campaigns on behalf of members). Joellen Riley looked at the establishment of the General Employee Entitlement Redundancy Scheme (GEERS) was an unusually strong (coming from this lot) attempt to guarantee some payments for employees. Again Ron Callus in a later presentation wondered aloud about why the Feds had gone to such lengths. Perhaps it was an attempt to stymie the Manusafe campaign (if so it was successful) or at least the part of that campaign that addressed to big issue of portability and the control of the funds by unions. The legal system puts employees as unsecured creditors in the winding up process and corporate governance puts the obligation on directors to look after shareholders well before employees. The first big issue with GEERS is that it probably won't last long as it is expensive for the government to run it so we can expect to see it wound back pretty soon.

She made some telling points on how current commercial law could be used to improve protection for employees, and how commercial law principles might actually accord with notions of industrial democracy or worker participation. Riley also looked at the virtues and problems of Manusafe type schemes, as did Ron Callus later on. The ALP has advocated an insurance scheme which one would think would accord with the ideology of this government of having to look after your own, but they have not taken it up.

After clearing our heads with cold coffee and biscuits we were back at it with a look at how casuals are faring. Nowhere are the facts of restructuring more starkly in evidence than in the growth of casual and contract employment, which now accounts for over one quarter of all employment arrangements in Australia. Gillian Whitehouse, in a paper she wrote with Tricia Rooney, looked at how casual employment is used by employers to avoid obligations, and how this issue has been addressed in Queensland in recent decisions. The casual loadings case pushed up the casual rate from 19% to 23%. Interestingly the QCU and the AWU broke down the components of what they were seeking into leave loading, bereavement loading, notice of termination loading and barriers to training, promotion prospects and reclassification. Employers objected to termination notice loading, largely on the grounds that was against the notion of casual employment, but that also custom and practice meant that all employees tended to get the same notice anyway (which rather undermines the appropriateness of having casual employees). The other Qld case is the review of the termination, change and redundancy (TCR) standards. Qld is seeking improvements to match the NSW standard, as opposed to the bare bones federal rates. Ifn fact they used a lot of the material generated by the NSW case from 1994. The federal government intervened to argue for keeping to the federal standard (and the ACTU is currently mounting a case to improve the federal rates).

Taking a historical view, we could say that such claims take up the notion of "industrial citizenship" first outlined perhaps by the establishment of an arbitration system and the living wage concept providing for a worker and his family. Is this a useful approach or should we be looking at broader notions of citizenship and the rights associated with that, not limiting them to rights based around work.

John Burgess, presenting a discussion of a paper he has written with Glenda Strachan and Anne Sullivan also took up the issue of portability and modernization of employment entitlements. Long service leave was the focus of their approach. There are more and more workers whose jobs don't match the "standard employment arrangements", enough to say that there is no longer any such thing. The majority of those whose work is non-standard are women, which brings us back to the concept of industrial citizenship based around a male worker and how much entitlements are still tied to that model.

They argue hat there is scope to link LSL to the innovations (progressive we hope) that are occurring in the work and family approach. LSL is the idea of a sabbatical for all workers. Increasing working hours make it more necessary for workers to have access to extended breaks. LSL is legislated for in NSW but it is also an issue that can be bargained around and perhaps is not discussed enough. Many workers don't ever get access and are unlikely to, and many who do never take it and get it paid out when they leave work. Looking at portability and access to LSL as forms of social insurance may be a way to change the way LSL is used by workers who increasingly move in and out of the workforce.

Alison Preston presented the need to deal with this in her paper (co-authored by Therese Jefferson) on bargaining for welfare - women and superannuation. She used the figures available from the Negotiating the Life Course Survey to highlight that the working patterns of women and their retirement needs can't be addressed by work-based superannuation.

All these issues come back to who is responsible for what are essential broad social issues. Julie Lee looked specifically at child care provision and nowhere is the question more controversial than here where those without children scream loudly about the "benefits" that might be given to those who work and have family. Marion Baird pushed the need for a broad concept of caring leave to cater for all who have children, parents, lovers, pets or any other body who needs looking after. Enterprise bargaining is starkly failing to deal with these questions, and the narrow focus on productivity in industrial relations that leaves out much social policy need is an area that needs exploration.

Iain Campbell, after our afternoon cold coffee, revived us by also questioning the business/productivity/HR approach to work/family benefits. There has been "steadfast inaction" by governments in recent years. The best they have done is produce promotional material that argues that business productivity can be improved by being innovative and flexible with employees. We can see from the Work and Family Award winners that corporate women (who these innovations are aimed at) do sometimes benefit from progressive moves, but the majority of workers are outside the upper realms where such benefits reach. Family hostile measures are also becoming more present in the 24/7 hothouse. Again enterprise bargaining can only address these issues patchily so policy development is needed.

Ron Callus' presentation ranged over many issues canvassed in these papers and how the policy proposals that may help guarantee LSL, caring leave, redundancy and other entitlements may be funded. Broad social insurance may be the answer to enable portability and access. Campaigns from unions and others to develop legislation, awards and enterprise agreements to protect and extend the social rights of all.