New Australian Working Time Minimum Standards: Reproducing the Same Old Gendered Architecture?

Abstract

This article focuses on the minimum working time standards in the ‘safety net’ created by the Fair Work Act 2009. We draw on an analysis of on-paper minima in the 10 National Employment Standards and in two Modern Awards covering paid care workers. We argue that the gendered legacy of poorer working time provisions in non-standard jobs held by many Australian women workers has been reproduced in the architecture of the new Fair Work regime. Our case study suggests that the permanent full-time norm of employment continues to permeate working time regulation, despite the fragmentation of the standard employment relationship with the growth in casual and part-time work. Not only does casual status limit the access of many women workers to particular National Employment Standards, but there remain significant and gendered differences in award minimum working time standards, particularly for casual and part-time care workers, in comparison with the conditions and protections provided in one of the key male industry awards. Further, a hierarchy of working time standards for care workers has been reproduced, underpinned by differences in contract status, job classification and work location. This leaves those at the bottom of this hierarchy with little working time or income security.

Keywords

community services Fair Work Act gender non-standard work women and work working time minima

Introduction

This article focuses on the Australian minimum labour standards introduced in the Fair Work Act 2009 (FW Act). It explores the extent to which on-paper working time standards, in both the legislated National Employment Standards and in Modern Awards, provide an adequate safety net for workers concentrated in the female-dominated community services sector. In Australia, the standard employment relationship and the labour protections associated with this relationship have been historically organized around permanent full-time work. Given that a majority of community services workers do not work on a permanent full-time basis, Vosko’s (2007) concept of ‘SER-centrism’ is a useful one in understanding why there has been less effective regulation of part-time and casual work. Essentially, Vosko argues that the greater the deviation from the standard employment relationship, the less protection there is for workers. The standard employment norm has gendered dimensions. It both reflects and underpins institutional and broader societal arrangements around a distinct ‘male breadwinner/female caregiver model’, which has worked to exclude many women from paid employment or reduced their prospects when they have been in paid work (Vosko et al., 2009: 11).

In this article, we examine the extent to which the new regime of minimum working time standards in Australia challenges the legacy of ‘SER-centrism’ and protects those who engage in non-standard work. We do this through a case study of working time minima for community services workers. There has been growing policy concern in Australia about the low wages paid in the non-government community services sector and the consequences this has for the attraction and retention of workers in the sector (e.g. Productivity Commission, 2011). More recently, attention in the industrial relations arena has been on the pay equity case where in 2010 unions sought an Equal Remuneration Order under section 302 of the FW Act in the federal Social, Community, Home Care and Disability Services Industry Award 2010 (SCHCDS Award). Far less attention has been paid to working time conditions for workers in the care sectors by policymakers or practitioners. This is despite the clear links between working time arrangements, for example, through regulation of minimum working hours and penalty rates, and the take-home pay of paid care workers.

Our article focuses on working time standards for both part-time and casual care workers, and, in particular, those standards available in the new safety net provided by the FW Act through the 10 National Employment Standards (NES) and the relevant Modern Awards. After a brief overview of the ‘gaps’ in the NES for non-standard workers, we turn to an analysis of key working time provisions in two archetypal female industry awards, the SCHCDS Award and the Aged Care Award 2010. We base our analysis on a comparison with the Manufacturing and Associated Industries and Occupations Award 2010, an archetypal male industry award. Our analysis suggests that the historically poorer working time protections in female- compared to male-dominated industries, which underpin the relatively poorer-quality work available in community services, have been reproduced under the Fair Work regime. On the basis of our analysis of the safety net for care workers under the FW Act, we argue that not only do casual workers have fewer protections in the NES and in the Modern Awards relative to full-time workers, but that there remain significant and gendered differences in working time minima for workers in feminized industries This is highlighted in the poorer protections extended to part-time workers in the care awards. In addition, we argue that between and within the two care awards, working time protections are dependent on contract status, job classification and work location, which reinforces a gendered hierarchy within paid care work.

Before embarking on our analysis, we note one limitation of our research method. In this article, we examine only some specific on-paper working time safety net entitlements both in respect of the NES and the three Modern Awards we consider. In several instances where the relevant award provisions were not clear, we sought some assistance from relevant union officials who had been involved in the award modernization process. We undertook scoping interviews with officials from the Australian Manufacturing Workers Union (AMWU), the Australian Services Union (ASU), the Health Services Union (HSU) and United Voice. Each of these interviews is referenced in the paper (see Appendix). Despite the useful clarifications provided by these practitioners, we do not examine the implementation of working time arrangements, nor the extent to which entitlements may be undermined or exceeded in particular workplace contexts. However, we note that there is some evidence that erosion of entitlements is more likely in the community services sector, given the nature of the work and the impact of the ‘funding market’ resulting in inadequate agency funding and increased employee workloads (Charlesworth and Baines, 2011).

In the next section, we provide a brief overview of the growth of non-standard employment in Australia and its gendered basis and consequences. We then provide some contextual background to our article by outlining relevant features of employment in community services and in manufacturing. We also provide a brief overview of the legacy of almost 20 years of enterprise bargaining, which has meant that those in female-dominated industries came to award modernization with far poorer working time arrangements in place and a greater reliance on their award safety net to set the terms and conditions of their employment.

Employment and Regulatory Context

The Growth of Non-standard Employment in Australia

As set out in Table 1, in the 20 years between 1990 and 2010 there has been a rapid growth in non-standard employment, both casual and part-time. Casual employment has increased steadily from 19.4 to 24.3% of the employee workforce over this 20-year period. By 2010, there were well over two million Australian workers working on a casual basis. While female casual employment has remained relatively stable, male casual employment has almost doubled. Nevertheless, women are still more likely to be employed on a casual basis than men, with 27.6% of female employees employed on a casual basis in 2010.

Table 1

Growth of non-standard employment in Australia, employees in main job, August 1990–2010

	1990			2010
	Male	Female	Total	Male	Female	Total
Casual % of employed persons	12.7	28.2	19.4	21.2	27.6	24.3
Casual N ‘000	476.1	795.7	1271.8	993.1	1208.2	2201.3
Part-time % of employed persons	6.3	24.5	14.1	15.5	44.6	29.1
Part-time N ‘000	235.0	691.2	926.2	805.2	2042.8	2848.0

Note: To enable comparison over time, data on part-time employment includes owner-managers of incorporated enterprises.

Source: ABS (2011 a).

There has been a far more dramatic growth in part-time employment, from 14.1 to 29.1% between 1990 to 2010. In 2010, women were three times more likely to work on a part-time basis than men, with 44.6% of all female employees working on a part-time basis compared to 15.5% of men. Of all part-time working women, over half were in casual employment (Australian Bureau of Statistics (ABS), 2011a). For those who work in the feminized community services sector, of whom very few in the non-professional occupations work full time or on a permanent contract, the legacy of SER-centrism is particularly significant.

Those who work on a permanent or fixed-term part-time basis are typically entitled to pro-rata full-time conditions. However, as outlined later, there has been some erosion of the traditional predictability of hours in some feminized sectors. Apart from part-time work, the other main deviation from the standard model of permanent employment in Australia is casual employment. Casual workers are entitled to an hourly wage, typically with a casual loading in lieu of paid leave and other entitlements, with no right to employment beyond each separate engagement (Campbell, 2008). Casual workers, as do permanent workers, may work on a part- or full-time basis. While temporary or casual employment is typically used in most Organisation for Economic Co-operation and Development (OECD) countries only for temporary or seasonal work, in Australia casual employment is widely used as a substitute for permanent employment. In practice, this means casual employees might have a considerable length of service with the same employer on an ongoing basis or be employed on a regular fixed schedule, situations that have produced the paradox of ‘permanent’ or ‘regular’ casuals (Pocock et al., 2004).

Working time regulation plays a critical role in relation to both wage levels and the creation of good-quality jobs for non-standard workers. Overall, pay is affected by the scheduling of hours and, among other things, the structure of penalty and overtime rates. Further, the degree of predictability and employee control of working time can be adversely affected by the ease with which employers can effectively impose changes to hours. While lack of predictability in working time may be seen as a hallmark of casual work, it is increasingly spreading to part-time work. Recent evidence from the retail and childcare industries, for example, points to substantial working-time insecurity for many part-time employees on a permanent contract with shorter weekly hours contracts in which hours can be increased, or longer weekly hours contracts in which hours can be decreased (Campbell and Chalmers, 2008; Whitehouse et al., 2011).

The standard employment relationship, based on a concept of full-time permanent waged work, has been the bedrock of Australian labour regulation for more than a century (Campbell, 2008), underpinning the SER-centric scope of minimum labour standards. In the Harvester Judgement in 1907, Justice Higgins decided that wages should be kept at a level to keep a man, his wife and three children in ‘a condition of frugal comfort’. Thus, from the outset, labour law constructed ‘the worker’ as a male breadwinner supported by a dependent female housewife (Owens, 1993–1994: 406). While the male breadwinner/female caregiver model assumed by Justice Higgins no longer reflects the increased participation of women in paid employment, nor indeed the growth of non-standard and part-time work, it remains a powerful norm in labour regulation underpinning many of the gaps in protections for non-standard workers, particularly in feminized sectors.

The profound impact of labour market deregulation in Australia over the last decade, with its emphasis on increased labour market flexibility for employers, has seen not only an increase in casual and part-time employment, but also a fragmentation of the standard employment relationship (Campbell, 2008), marked by the erosion of protections. This fragmentation has occurred particularly in relation to working time. It has not been uniform, but has been mediated by differences in bargaining strength, industry location and workplace size (Watson et al., 2003). At the same time, SER-centrism has continued to permeate the regulation of work with little prospect of improved regulatory protection for those in non-standard jobs.

Key Characteristics of the Manufacturing and Community Services Workforces

Our comparison draws on the working time standards for two distinct and gendered workforces. The manufacturing workforce more closely reflects the permanent full-time norm, while the community services workforce reflects the deviation from that norm. In 2010, there were some 916,500 employees working in the manufacturing industry, of whom 25% were women (ABS, 2011a). Only 14% of manufacturing employees worked on a part-time basis, while 18% worked on a casual basis. Women were far more likely to work part time (33% of female employees compared to 8% of male employees) and as casuals (25% of female employees compared to 14% of male employees) (ABS, 2011a). While underemployment rates – the proportion of employed people who want, and are available for, more hours of work – continues to be greater for women (7.1%) than for men (2.6%), reflecting the greater extent of part-time work for women, underemployment for all employees in manufacturing (3.8%) is far lower than the total industry average (7.3%) (ABS, 2010a). Unionization rates in manufacturing are 18.9% (ABS, 2011a).

Recent ABS analyses of labour force data suggest that there are some 513,000 community services workers employed in residential care services, child care services and other social assistance services, of whom 84% are women (ABS, 2011b). Part-time work has rapidly increased and, by May 2010, 53.9% of female workers and 41.6% of male workers in residential care and social services worked on a part-time basis (ABS, 2011c). ABS data on male and female casual rates at this sub-industry level are not publicly available. However, estimates indicate that in 2008–2009, 27.1% of all community services employees worked on a casual or temporary basis (ABS, 2010c). Non-standard work is unevenly spread through the sector but is a feature of front-line non-professional work. In disability support services, for example, 85% of non-professional disability workers are casual or part-time compared to 50% of the total Australian female workforce (Productivity Commission, 2011: 700).

While higher than the all-industry average, it is highly likely that ABS underemployment rates for the aggregate health and social assistance industry classification (9.3%) underestimate the extent of underemployment in the community services sector, because of the more traditional organization of work around a full-time norm in the health sector of the industry. The occupational grouping of community and personal service workers provides a somewhat more accurate picture. Female workers were slightly more likely to be underemployed (15.1%) than male workers (13.8%) (ABS, 2010a). The extent of underemployment in this occupation reflects not only the part-time status of many of the jobs, but also the short hours nature of that part-time work. One study found that almost a fifth of front-line community services workers work 15 hours or less a week (Meagher and Healy, 2006: 68). A more recent study found that 26% of non-professional care workers wanted to increase their working hours, with around half of these looking for more than 10 additional hours a week (Martin and Healy, 2010: 146). In the non-residential community services sector, unionization rates are 16.1% (Australian Government, 2010: 71).

Working Time Standards Before the Fair Work Regime

Enterprise bargaining was formally introduced into Australia’s industrial relations regime in 1991. Until then, wages, working time arrangements and other conditions were governed by specific awards that set the minimum rates of pay and conditions of employment that applied to the majority of employees in a particular industry or occupation (Campbell, 2008). Enterprise agreements were designed to sit ‘on top’ of this award safety net. With government support for increased labour market deregulation, the importance of enterprise bargaining in the Workplace Relations Act 1996 was increased through limits imposed on the scope of awards initially reduced to 20 and then 15 allowable matters under the Work Choices amendments. The move to bargaining and individual contracts under Work Choices meant that the award system lost its status as the primary form of regulation within the federal system. Remaining links between award conditions and enterprise bargaining were finally severed with the abolition of the no-disadvantage test in 2006 (Murray and Owens, 2009: 42). By 2007, awards provided a poor ‘default set of minimum conditions’ (Queensland Industrial Relations Commission (QIRC), 2007: 27) for an expanded national system, along with five limited Australian Fair Pay and Conditions Standards (AFPCS) introduced by Work Choices for those not covered by any certified collective agreement.

Even before the introduction of enterprise bargaining, there were concerns expressed about its likely impact on women workers because of their relatively lower rates of unionization and higher levels of part-time and casual employment (Heiler et al., 1999). These concerns were soon realized. While capacity to bargain was one significant issue, the other that emerged from early experiences of bargaining was the nature of the bargains struck. Where bargaining did take place in female-dominated sectors (and after 20 years of enterprise bargaining, just 48% of all female employees are covered by a collective agreement; ABS, 2010b), evidence suggests that increased employer-oriented working time flexibility was traded off for often meagre wage increases. Examples of such flexibility included widening the span of hours, reducing penalty rates and decreasing periods of notice for roster changes (Charlesworth, 1996; Heiler et al., 1999). In particular, the regularity and predictability of part-time work started to be eroded at the very point in time when the proportion of Australian women working on a part-time basis was increasing. This was achieved through reducing the minimum hours of part-time workers and increasing the span of hours over which work is rostered, while providing for employees to work additional hours when required (known as ‘flexing up’), mainly at ordinary time rates (Charlesworth, 1996: 9).

In community services in particular, low unionization rates and the lack of effective bargaining power (Briggs et al., 2007), significantly due to the nature of the work, inadequate government funding models, the number of small workplaces and the proportion of employees who work in the client’s home, have had two main effects. Not only were key working time protections eroded through enterprise bargaining, but award-reliant employees were left dependent on minimum standards that both facilitated increased casualization and failed to protect the increasing number of non-standard workers in the industry.

Minimum Working Time Standards for Care Workers: The ‘New’ Fair Work Regime

The FW Act introduced a national industrial relations system with a new safety net for workers made up of two sets of protections. First are the streamlined (compared to the pre-Work Choices awards) national ‘Modern Awards’, which deal with minimum wages, leave and leave loadings, and arrangements for when work is performed. Second are the 10 legislated NES. Modern Awards are generally to be updated every four years by Fair Work Australia (FWA), while any changes to the NES will have to be legislated. This political process may well prove a far more difficult and less responsive way to achieve change than the ‘test case’ mechanism that existed prior to Work Choices. In test cases, such as those in relation to unpaid maternity leave and ‘reasonable hours’, evidence was gathered and publicly scrutinized by the Australian Industrial Relations Commission (AIRC), which could arbitrate the contested issue and then generalize its decisions to other federal awards.

The current Prime Minister, when she was Minister for Employment and Workplace Relations, argued during the passage of the FW Act that the new workplace relations system would guarantee ‘a safety net of fair, relevant, and enforceable minimum terms and conditions for Australian workers’ (Gillard, 2008). While the FW Act has been characterized by some commentators and scholars as ‘Work Choices-lite’ (see Forsyth and Stewart, 2009), the new regime reinstated awards as an important feature of labour regulation, although enterprise bargaining has primacy as the mechanism to improve conditions beyond the basic safety net (Van Wanrooy, 2009). In the next section, we assess the main features of the new safety net from the perspective of non-standard workers, focusing on women working in part-time and casual non-professional community services jobs.

Working Time Standards in the NES

The NES comprise 10 minimum standards, including those on maximum hours, annual leave and notice of termination and redundancy pay. They also include some basic rights for working carers, including paid and unpaid personal carers’ leave, unpaid parental leave and requests for flexible working arrangements. As Murray and Owens (2009: 49) note, while the new regime of legislated minimum standards is simpler than that of the five Work Choices AFPCS and also provides some more protections for workers, in many ways it is not very different from the Workplace Relations Act 1996 both before and after the Work Choices amendments.

Despite the renovation of labour regulation in the FW Act, the continuing dominance of SER-centrism in the 10 NES is striking. The NES on maximum weekly hours is a relatively porous one, even for standard workers. It provides a maximum of 38 hours per week, plus reasonable additional hours. However, what is absent from the perspective of those who do not work full time is any provision for minimum weekly hours or minimum periods of engagement on a daily basis. The basis for fundamental working time minima for non-standard workers is thus regulated by individual Modern Awards. As we discuss later, non-standard workers in two of the main care awards are treated differentially depending not only on their individual award, but also on their casual or permanent status, the type of work they undertake, and the location where it is undertaken.

Workers who are employed on a casual basis, especially those who have less than 12 months’ service – workers who are more likely to be women – are effectively excluded from a number of working time NES. Casual workers are not covered by the NES on annual leave, paid personal/carers’ and compassionate leave. While the very definition of a casual is an employee without access to paid personal/carers’ or annual leave, for which the casual loading is supposed to compensate, it is noteworthy that in New Zealand, under the Holidays Act 2003, casual workers are entitled to paid annual leave either as paid time off or as a proportion of their hourly rate. However, the NES does provide casual workers with two days’ unpaid carers’ leave for each occasion when a member of the employee’s immediate family or household requires care or support because of a personal illness, injury or unexpected emergency. Casuals are also excluded from the NES on notice of termination or redundancy pay, and paid community service and jury service leave. Further, while all workers have to have 12 months’ service with their employers to be protected by the NES in respect of unpaid parental leave and the right to request flexible work, casual workers also have to be in ‘regular and systematic’ employment for this period with a reasonable expectation of continuing employment after that time. This effectively excludes a large proportion of women working on a casual basis, as almost half (46%) have been in their job for less than one year (ABS, 2007).

Modern Awards and Differential Working Time Standards

We contend that the award modernization process was essentially a patching together of existing state and federal awards, rather than a fresh consideration of what might be the most appropriate industry minimum standards. There were ‘trade-offs’ between the parties around the content in each individual Modern Award, which was limited to 10 allowable matters in addition to the NES. Thus, depending on an individual worker’s pre-Modern Award entitlements, their new conditions might be better than or inferior to their old conditions. However, United Voice officials involved in the modernization process for the Aged Care Award claimed that the process was a highly adversarial one in which working time minima that had existed under several of the pre-Modern Awards, particularly for casual workers, were lost (Will Ash, National Legal Officer, United Voice, interview; Sue Lines, National Assistant Secretary, United Voice, interview). While it is beyond the scope of this article to focus on the substance of the disputes between the parties in the modernization process, it is noteworthy that the historically differential standards for different groups of care workers in individual awards were rarely disputed by the parties.

In Table 2, we focus on certain key working time standards addressed in Modern Awards and make a comparison between two awards that cover care workers, the SCHCDS Award and the Aged Care Award. To sharpen our analysis, we undertake a comparison with the Manufacturing Award. While all three awards explicitly provide for the pro-rata application of many award terms to part-time employees, there is differential treatment of both part-time and casual workers, and in the care awards of different types of care workers, in the working time minima, which we explore further later.

Table 2

Comparison of selected working time provisions in three Modern Awards

	Manufacturing Award	Aged Care Award	SCHCDS Award
Minimum engagements	Clauses 12 to 14	Clause 22.7	Clause 10
Full time	No provision	4 hours	No provision
Part time	3 hours	2 hours	No provision
Casual	4 hours	2 hours	1 hour for home care employees 3 hours for SACs employees except when undertaking disability services (2 hours) 2 hours for others
Span of hours	Clauses 36.2 to 36.4	Clause 22.2	Clause 25.2
Day workers	6 a.m.–6 p.m., Mon–Fri	6 a.m.–6 p.m., Mon–Fri	6 a.m.–8 p.m., Mon–Sun
Shift workers	Various	Various	Various
Shift penalties	Clause 37	Clause 26.1	Clauses 29
Part time	Do not receive if not designated shiftworkers	PT only receive shift penalties if shift begins/ends outside ordinary span of hours	Covers FT and PT
Casuals	Shift penalties paid on top of casual loading	PT only receive shift penalties if shift begins/ends outside ordinary span of hours	Covers casuals
Weekend penalties	Clauses 14.1, 36 and 37	Clause 23	Clause 26
Part time	Do not receive if not designated shiftworkers	W/e rates substi- tute for shift premia (FT and PT)	W/e rates substi- tute for shift premia (FT and PT)
Casual	W/e penalties paid on top of casual loading	W/e penalties substituted for casual loading	W/e rates not paid to PT casuals who get only casual loading
Overtime	Clauses 13.8 and 40	Clauses 25 and 10.3(c)	Clause 28
Full time	OT paid for all work done outside ordinary hours and is in addition to shift premia	OT paid for authorized work extra to rostered ordinary daily hours OT rates substitute for shift premia	OT paid for autho- rized work extra to rostered ordinary hours on any day. Rates vary by type of work OT rates substitute for w/e & shift premia
Part time	Hours required over PT agreed hours (and as these may have been varied by written agreement)	Hours over FT (pw/ fn), or 10 hours per day, or rostered daily hours (unless written agreed vari- ation to hours)	Hours over FT (pw/ fn), or 10 hours per day must be paid OT
Casuals	OT rates paid on top of casual loading	Hours over FT (pw/ fn), or 10 hours per day – must be paid OT	No provision
Casual conversion	Clause 14.4
	Casual conversion possible after 6 months regular casual work	No provision	No provision

Note: pw/pf = per week/per fortnight, OT = overtime, FT = full-time, PT = part-time, w/e = weekend, SACs = social and community services.

Minimum Engagements

For those workers who work less than full time, the specification of minimum periods of engagement is crucial for income security and to minimize the transaction costs of working, such as the expense and time of travelling to work. The dominance of the full-time norm in the Manufacturing Award is apparent, with full-time employment defined as that where an employee is not engaged as a part-time or casual employee. There is no specification of minimum engagements for full-time workers, but overall award provisions ensure such workers have reasonably regular and continuous hours of work each day they work (Guy Noble and Charis Estoesta, National Research Centre, AMWU, interview). For part-time workers, three hours’ minimum engagement is provided. However, the regularity and predictability of part-time work is protected to a large extent providing that there is a written agreement of the days, hours and start and end times of such work when employment commences. Related provisions also require variations to be agreed in writing and retained as employer records that are accessible to a Fair Work inspector. Casual workers are entitled to four hours’ minimum engagement, no doubt reflecting earlier awards that worked to discourage the use of casual employment in manufacturing and to guarantee some security of income for those who did work on a casual basis.

The Aged Care and SCHCDS Awards set out three types of employment: full-time, part-time and casual. While the Aged Care Award provides for a minimum of four hours’ engagement for full-time workers, it provides only a two-hour minimum for both part-time and casual workers. In the SCHCDS Award, there are no minima specified for either full-time or part-time workers. However, in relation to casual workers, a distinction is made between various types of care work, leaving home care workers entitled to just one hour’s engagement. Social and community services workers have access to three hours’ engagement, while disability support workers and non-specified ‘others’ have access to two hours’ engagement. While a minimum engagement of one hour for personal care workers undertaking home care work was also initially specified in the Aged Care Award, the award was varied in 2011 to exclude care work undertaken in the home, with home care workers now covered by the SCHCDS Award instead.

The distinction between different groups of casual workers in the SCHCDS Award, and formerly in the Aged Care Award, creates a hierarchy of care work, with home care workers the most disadvantaged, demonstrating that the location of work is crucial. According to a union official involved in the negotiation of the Aged Care Award, the low minimum engagement period and the hierarchy of minimum engagements for casual workers in the care awards reflect the low value given to home care work and the lack of bargaining in the sector (Mark McLeay, National Industrial Officer, HSU, interview). While such differentiation reflects the legacies of earlier federal and state awards, this gendered hierarchy provides vivid evidence of the links between gender, domesticity and care (Charlesworth and Marshall, 2010), with the confluence of gender, care, contract status and location that underpins the undervaluing of care work extending beyond wages to crucial working time minima.

Contracted Hours and Notice of Change

It should be noted, as in the Manufacturing Award, that part-time workers under the Aged Care Award are also entitled to be provided with some regularity and predictability in working hours. The Aged Care Award provides that there must a written agreement of the days, hours and the start and end times of such work when employment commences. However, only changes to weekly hours need be made in writing, the other arrangements being subject to the (flexible) rostering provisions, as are those of full-time workers. In contrast, part-time (and full-time) workers under the SCHCDS Award are only entitled ‘to be informed’ by their employer as to the basis of their working time arrangements. In relation to engagement on shifts, however, the employer must state this engagement and the period over which the shift is usually worked in writing. There is no express provision for variation to these arrangements, other than in the roster provisions. These silences in relation to the variation of permanent part-time workers’ hours make workers particularly vulnerable to having their hours changed at their employers’ discretion. Where ‘agreed’ extra hours are worked by a part-time employee under both the Aged Care and SCHCDS Awards, the seven-day requirement for notice of roster changes does not apply. Further, there is no need for the agreement to be in writing. An ASU official stated that the absence of provisions for notice and written agreements make it relatively easy for employers to place part-time workers on low minimum weekly hours contracts so they can be asked to work additional hours as needed (Wil Stracke, Lead Organizer, ASU, interview). Whitehouse et al. (2011: 10) highlight the consequences of such employer-driven numerical flexibility in the Queensland Children’s Services Award in the constant potential for permanent part-time workers on long hours contracts to have their hours reduced, with resulting earnings insecurity.

Span of Hours and Shift Penalties

‘Spread’ or ‘span of hours’ provisions usually set out the hours between which ordinary hours are worked. Typically, hours worked outside the spread of hours attract shift or overtime penalty payments. How hours are scheduled across the day and the week is important to provide for predictability and security of income. Wide span of hours provisions have the effect of reducing penalty payments and, hence, income by designating work outside of the normal Monday to Friday daytime hours as ‘ordinary hours’ (Whitehouse and Frino, 2003). The predictability of hours is also important for employee work-life balance so as to enable workers to also meet family and community responsibilities, particularly those with fixed schedules, such as child care and school hours.

In both the Manufacturing and the Aged Care Awards, the span of ordinary hours is from 6 a.m. to 6 p.m., Monday to Friday. Under the Aged Care Award, part-time employees who work outside this span of hours are compensated with penalty rates both for this work and for weekend work, although at a lower level than full-time workers. However, for Aged Care Award casuals, any penalties for weekend work substitute for their (lesser) casual loading. Thus, the compensation for the loss of paid leave entitlements and formal job security that the casual loading recognizes is forfeited when casuals work on weekends. In contrast, under the Manufacturing Award, weekend penalties are paid on top of the casual loading, both compensating the employee and also providing a more effective deterrent against using casual labour rather than part-time or full-time employees to undertake work outside what are designated as ordinary hours.

In the SCHCDS Award, the daily span of hours is 14 hours in length (6 a.m. to 8 p.m.) over seven days, Monday to Sunday. Afternoon and evening shift or weekend penalty rates apply for permanent full-time and part-time employees. However, casual employees who work less than 38 hours a week are only entitled to their casual loading if they are scheduled to work on the weekends, without access to the higher weekend rates that permanent workers receive. These provisions, again, fail to recognize any loss of amenity in working unsocial hours, provide lesser conditions for casual community services workers than for those in aged care and provide a material incentive to employers to use casuals, rather than permanent full- and part-time employees, on weekends.

Overtime Penalties

As can be seen in Table 1, overtime in the Manufacturing Award is generally paid for all work undertaken outside the ordinary span of hours. Importantly for part-time employees, overtime is payable when they are required to work beyond their agreed hours. In sharp contrast to both the Aged Care and SCHCDS Awards, part-time workers are only paid overtime once they work beyond full-time hours. That is, when they work over their minimum contracted hours, they are paid ordinary time rates up until 38 hours a week or 76 hours per fortnight, providing a casual-like numerical flexibility for the employer without the employer incurring a casual loading.

This means that provisions that make it easier, or more difficult, for employers to adjust part-time workers’ hours are crucial. Under the SCHCDS Award, as noted earlier, there is no requirement for a written schedule of hours at the commencement of part-time employment (except for shifts), nor is there any express provision for variation to part-time workers’ working time arrangements. This has two main effects. First, it allows employers to put in place very low minimum weekly hours for permanent part-time employees. Second, it increases the working time and earnings insecurity for these workers who are then dependent on their managers and employers for additional hours of work (Charlesworth and Marshall, 2010). Under the Aged Care Award, casuals are paid overtime rates when they work more than 38 hours a week (or 76 hours a fortnight) or more than 10 hours per day. There is no such provision for casuals under the SCHCDS Award.

Casual Conversion to Permanent Employment

Out of the three awards, it is the Manufacturing Award alone that contains a casual conversion clause. Clause 14.4 provides that when a ‘regular’ casual (all casuals other than ‘irregular casual’ employees who perform work on ‘an occasional or non-systematic or irregular basis’) has been employed for a sequence of periods over six months they have the right to elect to have their contract of employment converted to full-time or part-time employment. In these circumstances, the employer is required to give a casual employee notice of the casual conversion clause at five months’ service. The employer has a ‘right to refuse’, but they cannot do so unreasonably. Such casual conversion clauses have been seen as an important mechanism in a range of policy options to restrict casual employment to work that is genuinely irregular in nature (Pocock et al., 2004).

While the ASU proposed a casual conversion clause in their draft SCHCDS Award submission, it did not form part of the final Modern Award. A casual conversion clause was not pursued by any of the unions under the Aged Care Award, although this may be pursued in the 2012 review of Modern Awards (Mark McLeay, National Industrial Officer, HSU, interview). The differential outcome between the two care awards and the Manufacturing Award is in line with the AIRC’s award modernization decision that Modern Awards can only contain a casual conversion provision where such a provision was a widespread industry norm in the relevant pre-Modern Award standards: ‘[i]n light of the arbitral history of such provisions in the federal jurisdiction we shall maintain casual conversion provisions where they currently constitute an industry standard, but we shall only extend them in exceptional circumstances’ (AIRC, 2008 a).

This approach very clearly privileges the historically industrially stronger industries over the industrially weaker, feminized, industries such as community services. Paradoxically, such clauses are only to be found in awards where casual work is the exception. The failure of the award modernization process to address the increasing casualization of work and the erosion of the protections around permanent part-time work in many feminized sectors suggests that the Fair Work safety net is a partial one with many holes.

A porous safety net for paid care workers has ramifications beyond individual workers’ conditions. Good-quality care depends on the attraction and retention of care workers. In its recent report on a National Disability Insurance Scheme, the Productivity Commission (2011) pointed to the need to address not only low wages in the sector, but also the length and variability of shifts, which act as a deterrent to the attraction and retention of employees in disability services. Indeed, a recent study found that the desire for better shifts or hours was a crucial motivating factor for people leaving their jobs in community services (Martin and Healy, 2010: 153).

Conclusion

Our article provides evidence that, despite the renovation of labour regulation, Australia’s historical ‘male breadwinner model’ continues to underpin the protections offered by the new safety net. The working time minima provided by the FW Act do not provide the same safety net for non-standard workers as they do for full-time permanent workers. This is the case not only in the NES, but also both within and between different Modern Awards. Modern Awards in industries such as manufacturing, where the full-time norm is the main way in which work is organized, provide better protection to the relatively fewer non-standard workers covered by them. The nature of the work that is protected is also crucial. In terms of paid care work, apart from those covered by occupation-specific awards such as the Nurses Award, community services work has historically not been understood as ‘work’ which is protected industrially (Briggs et al., 2007). The undervaluation of care work has arguably contributed to the poorer working time conditions reflected in the Aged Care and SCHCDS Awards discussed in this article, which not only flow on to a lack of predictability of hours for casual and part-time workers, but also lead to lower (and unpredictable) wages.

The privileging of arbitral history over the lived reality of paid care work in the award modernization process runs counter to the Commission’s obligations under the FW Act to have regard to the needs of the low paid and to eliminate discrimination in that process (AIRC, 2008 b). Indeed, in the development of the individual Modern Awards discussed here, there is little evidence that these obligations formed any part of the negotiation between the relevant parties or in the decisions that the AIRC made in the award modernization process. This oversight has arguably entrenched the historically poorer working time conditions of non-standard paid care workers. It has also entrenched a gendered hierarchy of care work that provides those who work within clients’ homes or with people with disabilities with the least working time security.

Our analysis of working time minima set out in the two main paid care awards suggests that it is not only the inadequate compensation for working unsocial hours or very short hourly engagements that need reform, but also the ways that employee rights to time sovereignty and income security are recognized in working time minima. Given the historical dominance of SER-centrism illustrated in this article, it appears unlikely that the review of Modern Awards scheduled for 2012 will address these crucial job quality issues in care work. Yet decent working time conditions for paid care workers are central not only to the rights workers in the sector have to quality jobs, but also to the provision of decent care to vulnerable populations.

Footnotes

Acknowledgements

The authors would like to thank the union officials to whom they spoke as well as the editors and the anonymous reviewers for their very helpful comments.

Funding

This research was undertaken as part of an Australian Research Council-funded project: From Margins to Mainstream: Gender Equality and Employment Regulation (DP110102963).

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