Work this Out

This decade and the one preceding it has brought an increasing interest in healthy lifestyles and fitness. Reality television shows like 'The Biggest Loser' seem to have inspired Australians to clean out their fridges and put on their running shoes.

 

This has led to a boom in the health and fitness industry. We have seen an increase in the number of gyms opening their doors, a higher number of holistic fitness programs and more participation in sporting events. More and more people are starting careers within the fitness industry, particularly as personal trainers.

 

As might be common knowledge, most personal trainers (or many of them) run their own businesses. They are not employees of the gym but contractors "engaged by" the gym. Gyms or fitness clubs like Fitness First will encourage their members to purchase personal training services (sometimes in 'packages' at a discounted rate), assign their members to a personal trainer and then "bow out" or wash their hands of the relationship. Often, personal trainers are teenagers just out of school or very young adults on the cusp of their career. In many cases, these trainers do not fully understand the contractor-principal relationship and how it is different from the employee-employer relationship.

 

It is illegal for employers to treat employees as independent contractors or to threaten employees with dismissal unless they sign a contractor's agreement. These arrangements are called sham contracting. Obviously, the legislative landscape has changed since my last entry in this blog. But since 2009, when the Fair Work Act 2009 (Cth) came into operation, the Fair Work Ombudsman has had powers to inspect employer records and take employers to court for penalties and compensation.

 

In recent years, the Fair Work Ombudsman has prosecuted a number of employers, particularly within the hair and beauty, construction and retail/convenience store industries. Prosecutions occur where the relevant employer deliberately seeks an arrangement with an individual worker in circumstances where the worker clearly has no intention or comprehension of acting as a self-employed contractor. The employer does this in an effort to save itself from paying wage and other employee entitlements as well as to remove itself from liabilities associated with the work performed. In most of these cases, the Fair Work Ombudsman seeks compensation for alleged underpayments as well as penalties against the employer.

 

Oddly, while the Fair Work Ombudsman has focussed its attention on industries like construction, the fitness industry seems to have been overlooked entirely. This is in circumstances where the fitness industry is notorious for sham contracting. While contracting is also historically prevalent in the construction industry, many employers used to be sole traders themselves. Furthermore, workers are more likely to understand and comprehend working as their own business than workers in the fitness industry. So why have there been no reports of the Fair Work Ombudsman investigating gyms or fitness centres?

 

One explanation is that no one in the fitness industry is complaining. It is obvious to me that young people are feeling the burden because the rate of personal trainers leaving the industry is very high (while there is very little to demonstrate this in the way of official surveys and statistics, there is a significant body of anecdotal evidence which shows a very clear trend). Yet, despite this, young trainers are either not aware of or have no inclination to exercise their right to complain. Perhaps the majority of would-be fitness instructors or personal trainers are not aware of their rights and those that do consider their efforts better spent in pursuing other avenues or accepting the industry the way it is.

 

I do not believe this is a good thing. Despite that the health and fitness industry continues to thrive, people entering the industry to pursue a career are becoming disillusioned with the single-minded focus on profits as opposed to supporting careers or building the industry from the ground up. Surely, if such a practice continues this way, the industry, as well as the public sentiment for health and fitness, could very well die a sad, empty and premature death. I certainly hope not.

'Truly' Measuring WorkChoices

Andrew Bolt reckons that “Easy fire truly does mean easier hire”

He is referring to the effect of the new industrial relations laws – particularly those which scrap the access to “unfair dismissal” for employees of small business. The theory is that if employers are more comfortable with terminating workers, they will be more comfortable with hiring long term unemployed, since if it doesn’t work out, they can just terminate them without the worry of unfair dismissal applications.

The supposed evidence of this theory is Australian Bureau of Statistics which point to a reduction in unemployment rates to below 5% – the lowest in thirty years.

However, the link between unemployment figures and the amount of terminations is indirect and speculative.

Reducing unemployment involves a lot more than providing something to (possibly) encourage employers to employ the long term unemployed. It also involves social and economic policy issues including mismatch (location of jobs to where unemployed can afford to live), education and qualifications, age, other forms of discrimination, etc. Unemployment statistics also need to be used very carefully. Yes, it's great that unemployment is below 5%, but – it should be kept in mind that these figures don't account for underemployment or people not in the labour market.

However, generally speaking, I agree that the laws have many merits. Time will tell the true social impact of the laws, but I think now that they’re in, we really need to give the new industrial relations system a good go.

I can understand Australians having concerns - concerns are quite natural and perfectly expected because these laws are changing the very foundations of industrial relations. They challenge many of the basic concepts in social thought, which people are just coming to terms with understanding and accepting. These are the growing pains of any new system.

It is still too early to judge how the new system will “truly” affect Australians.

A Safe Work Culture

It is a ridiculous hour because I have been up packing for my trip to Brisbane tomorrow. Well, that's my excuse tonight, but I want to take this opportunity to  write about the views a (older and more experienced) colleague expressed to me about the inherent nature of occupational health and safety.

Now, for me, working in industrial relations is an ideal combination of law and public policy and the issues which surround them both, two areas which I happen to be passionate about and be actually tertiary qualified in. They are also two areas which I think fit together neatly at any rate. As a result I feel very comfortable when I’m dealing with issues of a workplace related nature.

However, I consider that occupational health and safety is a large enough area to really form a separate specialisation of its own. While a workplace issue, it is an area separate in its own right from other workplace issues, especially in the realm of political debate.

Like law overlaps with policy and vice versa, workplace safety overlaps with a technical understanding of the industry. While I can make myself comfortable in issues of safety so far as they extend into law (albeit, a much more abstract area of law than industrial relations) and to a lesser extent policy, I really believe that a passion, understanding and/or experience of the technical aspects in the relevant industry is an absolute necessity to grabbing safety with both hands.

The government departments of safety in each state (in Victoria it is WorkSafe) are committed to campaigning passionately for safer workplaces. One of the principles currently being put forward is that Workplace safety should be the number one priority for business.

This is where my colleague’s views come in. He disagrees that safety should be a ‘priority’ at all for business. He argues that safety should be a virtue. Working safely should come before considerations of profit, client satisfaction, product quality, etc. Its importance is beyond a mere priority.

In my view, his argument is that safer workplaces are best achieved at the ground level. A long term goal should be having safe practices built into general work practices; having workers perform safe work as second nature. The major mechanisms we’d need to use to reach this goal or something which resembles it would be within education and training. I think this line of thinking has a valuable place in the policy debate because it goes to the very grass-roots of the culture within many industries, especially construction.

Based on what little I know about safety, I have to agree with my colleague's way of thinking. Honestly, there are two things that I really know about occupational health and safety.

One: It is over-regulated. There is too much written down about safety which no one reads and few people understand. When push comes to shove and incident comes to fatality, mere ‘rules’ and ‘regulations’ are just ink on paper and nothing else.

Two: Safe work practices are inexorably linked with the technical practices specific to each industry. As a result, technical understanding is required for high-quality input into hands-on principles, and a ground-up approach challenging the ‘culture of safety’ in each industry is what is required for safer workplaces.

Hooked and Sinkered

One of the things I really love about the internet is the ability to talk to people with whom you would never have otherwise even figured out how to get in touch with.

Look at me, an amateur writer, no one cares much for what I have to say, but I can say it anyway - and to the whole world!

What brought this on? My favourite thing to muse about lately: people who irritate me. People who irritate me always have interesting things to say; interesting things which I never agree with. I'm not sure if they irritate me because I think they shouldn't be worth it yet they still interest me, or if they interest me because they irritate me. For now I will just accept that the fault is entirely mine for enjoying and seeking out confrontation.

At the moment, my two favourite people to read are Andrew Bolt and Lee Goldberg, not necessarily in that order. What do they have in common? Well.. they are both writers (for some reason), they are both arrogant, they both seem to be trying to change the world and... well, they both say things which are just, well, stupid.* However, they put their views forward in such a way that people actually read it. Each time I get sucked in and find myself reading something one of these gentleman has written, I get to the end and realise I have wasted another thirty seconds of my life.

But, because I disagree so strongly with what they have said, I find myself really thinking about it, and analysing it. Most interestingly, I have thought about something that I would not have otherwise thought about.

What I really want to say here is that while in my opinion, the world definitely does not need any more of these people, they do have their place. We really do need those people that makes us go "Hmmmmm.... No."



*Apologies if this word offends, but I really cannot find a better adjective at this time.

The Illusive Pay Slip

Currently, the Association is holding joint seminars with the Australian Tax Office around Victoria. I've been allocated the job of speaker for the Association's part (which is for about 10 or 15 minutes out of two hours).

The administration aspect has been somewhat difficult and little frantic. The flyer which was sent around omitted some key information (such as the fact that the seminar is 2 hours long). Despite that, I have been learning a lot as far as the project has gone and it is turning out to be a worthwhile experience.

My part is on the affect that WorkChoices has had on paperwork and record keeping. There is a whole chapter on record keeping obligations for the employers in the regulations - mostly it sets out what needs to be kept on record in relation to employees (such as all their details, their payments, leave taken, etc).

The other major aspect regarding paperwork that employers must keep payslips. It is not common information that payslips are compulsory. Not only that, it is important that payslips contain the correct information in the correct way because there are penalties associated with non-compliance. Furthermore, if payslips do not set out separately the base rate paid, allowances paid and the deductions made, it can cause problems in the event of a wage claim by an unhappy employee.

Payslips must advise payment details such as superannuation payments, tax deductions, union dues, etc. In the building and construction industry, usually there are allowances (tool, industry, special, and travel) payable under the Award. If there is only one 'base-rate' on the payslip, there is no way to show that this is NOT an above-Award payment.

Consequently, because an employer is not allowed to set-off over-award payments against outstanding entitlements (Poletti v Ecob; Logan v Otis Elevator Co Pty Ltd) the employer will be liable for "unpaid" allowances.

It is important that payslips are issued and that they contain the correct information.

I get to cover this briefly over the next week. That is, provided I do not run into any further problems on the long drives.

Safe Work Not Paper Work

It amazes me how in depth discussion can be had where the initial comment is pretty straight-foward. Case in point, the Housing Industry Association's 'Safe Work Not Paper Work' campaign*.

The campaign aims to draw the focus on building sites onto safety and away from just 'paperwork compliance'. That seems pretty straight-foward to me.

My fascination is with the misconception held by some regulators that the campaign advocates for 'no paperwork' at all. On the basis of that confusion, the regulators argue that paperwork is required so that they can see that work is being performed in a safe manner - or at least, that the contractor has done everything reasonable to ensure that work is being performed in a safe manner.

Well, of course some paperwork is required. But they miss the point.

There is a strong argument that regulatory compliance on principal contractors is too onerous. Thus, contractors are forced to focus on "filling out paperwork" rather than actually doing what they are meant to be doing.

What regulators may not fully appreciate is that contractors in the building industry are required to fill out a sleuth of paperwork - not just for safety compliance, but for contractual and technical compliance as wel. The paper work which is then meant to be "showing the the work is being performed in a safe manner" becomes just something else that has to be done along with quotes and tenders, filling out contracts, arranging tax and super, etc.

Once the in-depth dicussion was nearing an end, it was proposed that HIA's campaign would be more clear if its slogan read, 'Safe Work Not More Paper Work'.

But in my view, the slogan is pretty clear as it is. HIA's campaign says, let's change the focus of safety in building safety. Let's make the focus safe work, not paperwork.






*The views expressed in this comment are my own personal views only and are not in any way affiliated with the Housing Industry Association (HIA) or any government of Australia. To be clear, no consultation was undertaken with the HIA, any of their representatives or any representatives of the government before the drafting of this entry.

Initial thoughts on WorkChoices

I have a few excuses for not posting for several months after starting this blog.

First of all, because it is new, no one reads it. So this is like me talking to myself - which I tend to do, but... as general rule I do not admit this, nor do I create evidence of such for all to see. Second of all, I just moved to Melbourne last month for work, and I only just got my internet up.

On the topic of Melbourne - everything you hear is true! The people are generally very friendly, the food and restaurants are fantastic, the shopping is fantasic, the weather is just awful.

Well, I do intend to use this 'blog' for discussions on topics that are related to my profession. Current issue in point - WorkChoices. Now really, I promised I wouldn't say anything until I actually finished reading the Act and the regulations... which, like every IR consultant, lawyer and HR manager in Australia, I have been wading through for the passed couple of weeks... but, I do have some initial comments to make.

My first impression is that, in many ways, it doesn't have a massive impact on employers generally (with the exception of the unfair dismissal excemption - more on that later). Basically, they still have the same options for employing someone under the relevant award, or under one of the three types of Enterprise Bargaining Agreements (EBAs).

My second impression though, is that this is an absolute major overhaul of our Industrial Relations system - more so than I actually expected. Of particular significance - changes in the role of the Australian Industrial Relations Commission (AIRC) and the introduction of the Australian Fair Pay Commission (AFPC). I am yet to be convinced that there is any real justification for the existance of a body like the AFPC.

What doesn't suprise me is the amount of employees who've had their employment terminated since the introduction of the laws on the 27th of March, 2006. Honestly though, it appears that many employers have misunderstood their freedom from "unfair dismissal". Many dismissals could still arguably be catogorised as unlawful dismissal, especially those where the employee was on WorkCover. Unlawful dismissal is still attached to penalty units last time I checked. However, an employee's reduced access to justice (courts instead of the Commission) is very likely to see some employers sneak through even after an unlawful dismissal.

That is all I have to say for the moment...