To most of us, June 2009 seems quite a while ago. But not, apparently, to the public servants employed by Fair Work Australia. FWA is a creation of the Gillard Labor government and came into operation on January 1, 2010, assuming all the functions previously held by the Australian Industrial Relations Commission and the Australian Industrial Registry.
In June 2009, Kathy Jackson (national secretary of the Health Services Union) referred allegations of financial irregularity in the union, when Craig Thomson ran the union, to the Industrial Registry.
Thomson had stepped down as the union’s national secretary in 2007, when he was elected as Labor MP for the seat of Dobell on the central coast.
Surprising? Well, not really. In the early 1980s, I worked in the former commonwealth Department of Industrial Relations in Melbourne, in some of the areas which are now covered by FWA. This was my first, and only, public service job and it took some time to learn how to pace myself.
The essential problem was that nearly everything seemed to take forever. Early on, I was given the deed of preparing a draft ministerial reply for the federal minister. I completed the job before lunch – after all, the letter was only about 400 words. But I was told such a response was too prompt and the task should take at least a week.
It is not being suggested every department works at such a pace. But some do. The Thomson matter should be relatively easy to resolve. Trade unions are registered organisations. They have rules which are registered with FWA and are required to abide by these rules. In return, they obtain privileges.
For example, unions are protected from competition since potential competitors are denied registration and cannot enjoy the privileges enshrined in the Fair Work Act. With respect to Thomson, the questions are obvious. What did he spend the union’s money on? Was such behaviour consistent with the HSU’s rules? It is almost unbelievable such an inquiry could take close to three years to complete.
Bernadette O’Neill, in her capacity as FWA’s acting general manager, said in December the Thomson case had “reached an advanced stage” and said FWA expected to “finalise its investigation in the new year”. We shall see.
Apart from an apparent ambivalence to time, the other notable fact about life in the federal Industrial Relations Department was the lack of understanding of, or empathy towards, business. Especially small business.
Most of my colleagues had never worked in the private sector and none had ever experienced the responsibility of raising money to employ workers. Yet we were tasked with administrating the relationship between employers and employees at a time of economic downturn.
Looking from a distance three decades later, nothing much seems to have changed. Last Thursday, 7.30 interviewed Anna Augustine, general manager of Melbourne’s Cafe Vue.
She spoke about the complexity of awards handed down by FWA and said the “repercussions of not meeting” award requirements “kept operators awake at night”. It is my experience bureaucrats, in relatively secure employment, have difficulty understanding such concerns.
Then there is the Fair Work Ombudsman, Nicholas Wilson, who is responsible for ensuring that awards determined by FWA are complied with. Wilson let it be known he was going to take an active stance against employers who were underpaying staff.
It turns out Wilson’s own staff have given incorrect advice to employers, which has resulted in underpayments to employees.
Now, some small businesses have to compensate workers through no fault of their own. Ideally, any repayments should come out of the Fair Work Ombudsman’s budget. But it won’t happen. It is as if, to Wilson, only employers should be punished.
Last week, The Age reported that celebrity chef George Calombaris had said that penalty rates set by FWA were uneconomical. The following day, The Age’s letters editor gave pride of place to Paul Bugeja. His advice was straightforward: “So, George if you don’t want to pay penalties … don’t trade on Sunday.”
This reminded me of the mindset of my public service colleagues three decades ago. Workers who want to work weekends and customers who want to spend on weekends, including tourists, just did not matter.
The public servants and former union officials who preside at FWA and related bodies have the best intentions. It’s just that they tend to look favourably on unions and with disfavour on business. What’s more, as is not surprising for those in secure employment, time is of little moment. Which helps explain the Thomson delay.
Gerard Henderson is executive director of The Sydney Institute.