A third of Australian workers are working in conditions that would be unlawful in Europe says ACTU Assistant Secretary, Richard Marles

The Working Time Problem in Australia

Australia is experiencing a break down in the working week. In about 1970 far and away the majority of the work force worked what was then the standard working week of 40 hours per week. Now only about a third of the workforce work a 38 hour week. More people work less than a standard week and more people work more than they ever have before.

At the high end of the spectrum we now have a third of the workforce working more than 49 hours per week. On this statistic we are second in the developed world for working extended hours.

The European Union has just put in place a 48 hour directive. This directive was made on the basis of research that found if you work much more than an average of 48 hours a week then you will do damage to your health and your welfare. Accordingly, it is now an obligation of every member state of the European Union to put in place laws which cap hours at 48 hours a week or less. In France hours are capped at 35 hours a week.

If we bring that back to the Australian context we now have a third of the workforce working in conditions which in Europe would be unlawful. People in Australia are working longer and harder than people in Japan.

By any measure we are now experiencing an epidemic.

This is also borne out in all the survey work that the ACTU has done of union members in Australia. It is the single biggest employment standard issue on working people’s minds today.

Against this background there has been absolutely no public policy response whatsoever. Whereas governments in North America and Europe are dealing with this issue our government has not even noticed it.

The Politics of Working Time Within the Union Movement

For a long time the issue of working hours within the union movement has been a controversial one.

Essentially the union world divides into two sectors. There is the non-paid overtime sector and the paid overtime sector.

An example of the non-paid sector is the finance industry. In this industry large swathes of overtime are worked and not paid. It is worth noting that in Australia 60% of overtime is unpaid. For the unions operating in this sector the issue is a very simple one. Their members are experiencing large scale labour theft. Accordingly, dealing with working hours is an absolute necessity.

In the paid overtime sector the issue is a little more complex. Most of the blue collar industries have paid overtime. Accordingly, working hours are obviously linked to remuneration.

In an industry like transport where base wages are relatively low people are having to work very long hours just to earn a living wage. However, even in these industries, when you take a step back and realise that working people are having to work 50-60 hours a week in order to earn a living wage, you quickly realise that this is not a healthy way to run an industry. In these industries regulating extended working hours must be inextricably linked to increasing base wages.

So the traditional controversy has existed between the non-paid overtime sector and the paid overtime sector.

In early 2000 the “36 Hour Week” campaign was run in Victoria by a number of unions in the construction industry. A part of that campaign, run by the ETU, which was not greatly publicised was placing a cap on overtime. They managed to achieve an 8 hour a week overtime cap on the base of a 36 hour week. Effectively, they have put in place a 44 hour capped working week. This represented a watershed in the union movement in relation to working time. The ETU were really the first blue collar paid overtime union to bite the bullet on overtime.

It led to a resolution at the ACTU Congress in June which determined that a test case should be run in the Australian Industrial Relations Commission seeking to regulate extended working hours. A resolution at the October 2000 Executive followed. And then in December 2000 a number of unions participated in a series of negotiations about the form of a clause which would be suitable to all unions. At the March Executive meeting this clause was adopted unanimously.

In May of 2001 the application for the Reasonable Hours Test Case was lodged.

The range of unions involved in the Case is extensive. It covers both the paid and unpaid sector. It covers blue and white collar employees. It covers the public sector and private sector employees. In this sense a true cross section of the Australian workforce will be the subject of the Reasonable Hours Test Case.

The History of Hours Cases in the Commission

In 1926 the Commission determined that there should be a 44 hour standard week. This was followed up in 1947 with the 40 hour week case. Both the 1926 and 1947 cases looked extensively at working time in Australia. They looked at the nature of work in the changing economy in the first half of this century. The changing nature of the workplace was examined and on that basis new standard working weeks were determined.

In 1981 the standard working week was reduced to 38 hours a week. This occurred in the context of the National Wage Case process. It was not a decision made against the background of any significant inquiry into working time in Australia.

The ACTU’s Reasonable Hours Test Case is not about altering the standard working week. However, it is about looking at the nature of working time in Australia against the background of the changing economy. It’s about thinking through an appropriate award response to the changing nature of working time in the Australian economy. In this sense it is the direct descendant of the 1927 and 1947 cases.

It is therefore the first serious inquiry by the Commission into working time in Australia in 54 years.

In this context it is one of the biggest test cases that the ACTU has run in many years.

The Clause

The clause has two components to it. The first is very simply to put in place a standard which says that an employer may not require an employee to work unreasonable hours of work. It is difficult to imagine that anybody could oppose such a notion.

The clause sets out a number of criteria by which unreasonable hours of work are to be determined. This not only relates to the number of hours being worked but also the configuration of hours being worked in the context of shift work, the occupational health and safety effect of working a particular number of hours, the number of hours being worked at night, the level of remuneration that is being received for the work done, increasing workloads and incentive schemes which require people to work long hours, and the ability for an employee to enjoy a family and social life against the background of the number of hours being worked.

This is the most important part of the clause. It will allow employees and unions to prosecute companies where they believe the way in which hours are being worked and the number of hours being worked are unreasonable. It is not a prescriptive clause. Rather it anticipates that standards will be developed in each industry and in each circumstance as the clause is litigated over a course of years. It is, if you like, a garden bed from which a whole body of law will grow about what constitutes reasonable hours in any particular circumstance within the Australian workplace.

It is a very small first step down the path of dealing with the problems of extensive working hours in Australia. Compared to the public policy response in France where a 35 hour week has been legislated this is a far less prescriptive and more mild response.

The second part of the clause seeks to define what would constitute extreme hours of work. This is where somebody works on average 60 hours a week over four weeks, or 54 hours a week over 8 weeks, or 48 hours a week over 12 weeks. If an employee meets any of these criteria then they are entitled to a 2 day break which must be taken within the week after the criteria has been met.

The theory is that if you are working really hard during a particular period of time then you need to have a break. It is not seeking to outlaw working hours of a certain duration. It does, however, recognise that these are long hours and any person working them will require some rest in order to keep going.

It should be noted that all the criteria which are listed in this part of the clause would in Europe be completely unlawful.

The Case

In broad terms this case will significantly raise the issue of working time in Australia.

The case will look at the existing statistical situation within the Australian workplace in terms of the number of hours that are being worked. A comparison with overseas will also be made.

It is intended to examine the effect on an employer of having a workforce which works long hours. It makes sense that if there is one block of 76 hours which needs to be worked, then there will be much greater productivity with two people working 38 hours than one person working 76 hours. One could imagine that for one person to work 76 hours in a week, hours 39 through 76 are not going to be as productive as hours 1 through 38.

There has been a very lazy management response to the need to make our economy more productive. A response which simply says that we need to get an employee working longer and harder is fallacious for employees who are working longer will be working less hard as they get more tired. A more productive economy needs a more efficient workforce working more effectively and this requires that the workforce be alert all the time. Extensive working hours works against this proposition.

The case will also examine the extent of labour theft in the unpaid overtime sector in Australian industry.

Naturally, the case will look in detail at the employee impact of working long hours. This will include the occupational health and safety effects on employees and the adverse effect on employees’ family lives.

Finally, the societal impact of extended working hours will be examined. There are many groups within the community who are feeling the pinch because of the degree of working time in Australia. Volunteering groups are finding that they have less access to volunteers. Recreational and sporting groups are finding that less people have time to play sport and to go on holidays. Family groups will tell you that a large part of the difficulty of families functioning in the twenty first century is as a result of extensive working time. And public health experts will tell you that working time is having a massive effect on the public health of our country.

Timing

The Case was lodged in May of 2001 and it is expected it will be heard in the third quarter of this year. Accordingly, we expect a decision either at the end of this year or the beginning of 2002.

Outcomes

The primary outcome of this case is to achieve a standard of reasonableness around working time in the award system and provide relief for those who are working extreme hours. This will be a very important advance in the award conditions of this country.

It is also hoped that in having this clause in awards we will encourage parties in the industrial relations system to bargain around the issue of working time. In the unpaid overtime area employees and unions might bargain with their employer about appropriate remuneration for overtime worked. In the paid overtime sector bargaining can deal with the problem of increasing low base wages at the expense of doing large amounts of overtime.

Win or lose this case will publicise the issue of working time in Australia. There must be a public policy response to the epidemic of extensive working hours. And for that to happen the issue needs to be raised in the public eye.

This case will put awards back in the spotlight. It is not our intention to turn the clock back to a centralised wages system. However, the award system needs to be a living, breathing and organic system of standards for working people. Awards need to keep pace with the changing values of our community in order to be an effective base upon which bargaining can occur. This will be one of the biggest test cases in many years. Lets hope that it may play a part in breathing life back into an appropriate award system.

Finally this case will only have value if working time becomes an issue around which unions organise. It needs to be placed fairly and squarely into the day to day agenda of industrial relations in the workplace. Only then will Australia have a workplace which is consistent with our position in the world of being a modern civilised society.

Thank you for having me.
Richard Marles
ACTU Assitant Secretary
24 May 2001 – South East Trades and Labor Council, South Australia