Background
Outworkers
or homeworkers are one of the largest group of vulnerable
workers in Australia. They are predominately migrant and
refugee women who only speak English as a second language.
They complete their work in their own homes or in non-formal
factories, such as their bosses' garage.
Despite the legal protection provided under the current
system, outworkers in the industry still experience
exploitative situations. Their working hours can be any
day in the 7 days of the week and anytime during the 24
hour period of a day. They work these hours as a result
of unrealistic deadlines given for completion of work.
The exploitative conditions which outworkers experience
often affect other family members and children. There are
also high levels of reported work-related violence, abuse
and workplace injury.
According to Brisbane's Catholic Justice and Peace
Commission's Executive Officer, Mr. Peter Arndt, "Catholic
Social Teaching stresses the importance of work to the
dignity of people and the rights of workers to fair pay
rates and conditions." He added that, "As
witnesses to the Gospel, we cannot stay silent if these
changes will make it more likely that the weakest in our
community are working long hours doing skilled work for
as little as AUS$3-4 (US$2-3) an hour."
The Effect of WorkChoices on Outworkers
The current system sets the legal framework to ensure
that outworkers receive their minimum award entitlements.
The most important aspect of legal protection for
outworkers has been the introduction of deeming
provisions that ensure that they are recognized as
employees. Moreover, it ensures that the supply chain is
monitored so that intimidated and vulnerable workers can
access these legal protections relatively easily. The use
of statutory declarations (included in Clothing Awards
and State(s) legislation) is a means for outworkers to
provide evidence of underpayments or non-payment for work
completed.
The attempt of the proposed legislation, to protect
outworkers by the retention of the outworker provisions
in the Federal Clothing Award is undermined by other
aspects of the legislation, rendering them useless.
According to Fair Wear, the WorkChoices Bill fails to
protect outworkers by:
Allowing
employers to "opt out" of the outworker
award provisions
It is common practice in the clothing industry
for an employer to have a few in-house sample
machinists and then contract out the bulk of
their production to subcontractors, who then give
the work on to outworkers. Current provisions
apply to all persons who directly or indirectly
engage persons to perform clothing work.
WorkChoices will permit employers to opt out of
awarding the outworker because they don't
directly employ outworkers themselves.
Making
outworkers' status as "employees"
unclear, leaving them to be mistaken as
independent contractors
WorkChoices overrides the deeming provisions in
State legislation, which deem outworkers to be
employees. Moreover, there is no definitional
mechanism in WorkChoices. This will exclude
outworkers from any protection under labour
legislation. Although the Government claims that
independent contractor legislation will support
the right of these people, outworkers do not have
the ability to bargain with their employer.
Providing
a narrow definition of an outworker
While a traditional outworker is someone working
in their own home doing sewing, some outworkers
nowadays work in the boss' garage at the boss'
home. It is a concern that if the definition of
outworker is not expanded, it is expected that
there will be an increase in the above sweatshop
arrangements as employers try to put themselves
beyond the reach of the law.
Undermining
mechanisms that allow the comprehensive
monitoring of the activities of companies through
the whole clothing supply chain
Under current Federal & State legislation,
the union can access all work records in
workplaces which are suspected of breaching award
provisions. However, this can be blocked under
WorkChoices. Under WorkChoices, the union will
have no right to enter a workplace where
employees are all covered by Australian Workplace
Agreements (a written agreement between an
employer and an employee about the employee's
terms and conditions of employment). The union
will only be permitted to look at records
relating to union members and will have to
specify the details of a suspected breach in
circumstances, while currently it can investigate
complaints from its members confidentially.
Placing
the onus on individual outworkers to make a claim
against the employer
WorkChoices returns to the past by placing the
onus on individual outworkers to make claims and
use court processes to remedy their own situation.
Outworkers have to start by making a case that
they are in fact employees, and then seek to
access their entitlements. However, from past
experience, when individual remedies are
provided, few outworkers actually access the
legal proceedings on their own. This is due to
fear, ignorance of their rights, fear of their
bosses, low levels of English, a lack of
confidence in Australian society, financial
considerations, and an overall sense of
powerlessness in the communities.
Removing
outworkers' ability to claim unpaid wages from
the principle contractor when their boss
disappears without paying.
To address
this issue, state governments in New South Wales and
Victoria which accounts for the majority of outworkers in
the industry, have introduced legislation to allow
outworkers to make their claim for unpaid wages to the
principal contractor in the supply chain when they can't
locate their employer. However, WorkChoices overrides
this important mechanism in State legislation.
WorkChoices's effect on the Society
There are concerns that the Bill will have an adverse
effect on many people in the community, not just
outworkers. According to Fair Wear, many workers will
lose benefits such as over-time and penalty rates. Also,
the legislation is set to force many workers into
independent contractor arrangements, which will mean they
will not be privileged to the few protections afforded to
employees. This will negatively affect groups such as
young people, women, migrants and indigenous people who
are in a very weak bargaining position.
For Australian society, there will be a larger group of
workers who will become more marginalized and subject to
increased stress, with a diminished capacity to provide
for their families.
Source:
Australian Council of Trade Unions (http://www.actu.asn.au/work_rights/news/1132030724_2357.html)
CathNews
Fair Wear (http://fairwear.org.au)
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