If You’re In Big Business, Then The FWC Is The Fairest Of Them All


The recent slashing of weekend penalty rates by the Fair Work Commission has made weekends a luxury for those who can afford them, writes Xiaoran Shi.

“Jobs just aren’t what they used to be.”

Those words were overheard in passing at a rally outside the Carlton & United Breweries plant in August. They have stayed with me since and echoed in my mind last Thursday morning as news broke about the Fair Work Commission’s decision to slash penalty rates in the predominantly service sectors of hospitality, retail, fast food and pharmacy.

Those eight syllables of political lament resonated with cruel irony on February 23 because the opposite seemed to have come true. The FWC review of weekend and public holiday penalty rates in six awards began in early 2015 and in the intervening two years, those jobs have remained exactly what they used to be.

Changes the FWC’s decision was eager to capitalise on related less to the substance of jobs themselves and more to ideological hegemonies shaping the nature and meaning of work anew, and rapidly transforming social relations surrounding the exchange of goods and services.

Most of all, however, the FWC was sensitive to the principal demand of our time, namely that prices and therefore wages must be in a perpetual spiral downwards.

So, when the inevitable appeals to lofty democratic puritanism came rolling through – espoused by the Coalition and crossbench figures such as Nick Xenophon – decreeing that any challenge to the ruling would be a “mistake” that would abrogate the FWC’s independence, we are only right to be sceptical.

The Commission can be considered independent insofar as its exercise of power and authority in the industrial relations arena lies outside the immediate purview of parliament. Such independence does not extend to its review processes for hearing evidence, which are subject to inundations from chambers of commerce and business lobbies furnished with the wherewithal to mount lengthy reports in favour of industry interests.


Whilst the FWC maintains a veneer of autonomous impartiality by allowing any person or party to lodge evidence, individual workers, unions and terminally underfunded community organisations are hardly on equal footing to compete with the resources of big business. And compete they are ultimately compelled to do, as the FWC’s review processes share more in common with the states’ tender procedures than they do with the methodologies of a think tank or policymaking body, as fraught as those may also be.

ProcurePoint, the online database for private firms seeking to tender for NSW government contracts, informs us that the “overarching requirement for procurement” is “value for money.” From women’s refuges under O’Farrell to Australia’s only 24/7 specialist gendered violence counselling hotline under Berejiklian, the state government has forced countless social services on to the auctioneer’s block, and sold them off to the lowest bidder.

In this same spirit of fostering ‘healthy competition’ in the ‘market of ideas,’ the FWC’s decision reveals the conceits of capitalist logic, which undergirds the operation of the Commission and that of allied institutions governing the distribution of wealth.

Thus, to uphold the Commission as an objective agent in the first instance amounts to an admission of defeat in an ongoing class war. The FWC did not cut penalty rates in a vacuum. It did so as a function of a still-unfolding legacy of sweeping austerity, union-busting and corporatisation that has rendered the socio-political landscape captive to the neoliberal imaginary, to the fantasy of a market Darwinism that guarantees the winners’ spoils will trickle down to the masses and allow them to get bang for their buck.

These ideals are the lifeblood of the rationale drawn upon in the submissions to the FWC by various employer associations, echoed in the Productivity Commission Final Report heavily referenced by the FWC in its review and reproduced in the FWC’s summary of its decision.

Again and again, we encounter the notion that penalty rates as they currently stand “act as a brake” in commercial proceedings, and that lowering them would boost trading hours and thereby facilitate more work for more people.

Even if the latter proposition were true, and employers were not incentivised to retain the same number of staff to work longer hours for reduced rates rather than engage in the labour of hiring and training new staff, the idea of cutting wages in order to promote the profitability of private enterprise is a dangerously capitalist one that throws into doubt the objectives of the FWC and the meaning of “fair work” itself.

This begs the question: for whom does the Commission seek fairness? It is inescapably apparent that the answer rests in the court of Australian business. When the FWC sided with employers and industry lobby groups in slashing penalty rates, it did more than decimate the incomes and livelihoods of close to a million service sector workers, who are already among the lowest paid in the country. It consolidated eradication from the political paradigm any lingering remnants for a framework of workers’ rights and substituted it wholesale with the ethos of a brakeless economy, of profit at all costs, of “Jobs and Growth”.

The fundamental power differentials inherent in relations between workers and bosses are invisible to the eye of the FWC, which sees no duty of care in protecting the vulnerable position of workers.

In fact, if we are to sincerely confront the core motivations of the FWC in its arbitration of industrial fairness, we need only look to the summary of its decision, which explicitly refers to Fair Work Ombudsman reports of “significant levels” of underpayment in the hospitality and retail sectors.

According to the FWO’s National Hospitality Industry Campaign Report, 46 per cent of restaurants, cafes and catering businesses and 47 per cent of takeaway food businesses were “not paying their employees correctly.” However, as we read on, the decision summary reveals that the FWC’s solution to this alarming prevalence of wage theft is to recommend switching from penalty rates to loaded rates in order to streamline “non-compliance,” or in other words, of bringing exploitation up to code.

Furthermore, rising consumer demand has been repeatedly invoked in justifications for the FWC’s cuts.

The reasoning is twofold: the ceaseless churn of the 24/7 economy has conditioned consumers to expect greater access to a wider range of amenities, and dissolved the sanctity of the weekend for workers. This may initially seem to be a statement of fact, but at the heart of this argument is the necessary creation of an underclass of workers who service the needs of consumers, and ne’er the twain shall meet.


Consumption now reigns as the superlative economic mode of our time. It is no wonder that the predacious appetite of the neoliberal imperative has driven industrial regulation in Australia towards further cannibalising the precarious, lowly-waged working class just to make room for the spending habits of those in a class above.

Through this, we can understand that the weekend means leisure for those who can afford not to work, and toil for those who cannot. But the weekend is not an elite gentlemen’s club and we cannot concede its prohibitive pricing out of the working class.

We must rehabilitate the concept of leisure, detach it from its long associations as the domain of the bored upper classes and reinstate its status as a right for all.

Until full automation appears within our grasp, sectors requiring weekend work will always exist. But, the blatant institutionalisation of labour exploitation does not have to. Workers deserve to be compensated fairly for a fair day’s work and should not be forced to work long weekend hours in order to make ends meet.

This reality is possible, but we must first be rid of the notion that the service industries are purely the preserve of the young. Not because the young aren’t disproportionately affected by these cuts (which they are, and devastatingly so), but because it lends credence to the idea that the service industries – as some of the most prone to corruption and evasion of industrial regulations in Australia – are simply a rite of passage, a necessary evil, a nightmarish limbo for workers to pass through on the way to something better.

That’s why the fight against the cuts to penalty rates must go beyond mere opposition. Given the ever present threat of the TPP and the recent momentum gathering for the omnibus budget savings bill designed to cut childcare and unemployment benefits, we must organise to meet neoliberal reforms wherever they fall. The need to regulate and enforce industrial relations that protect the rights of workers across all sectors is pressing, and we cannot stand idly by as labour rights are dismantled by the instruments created to conserve it.

Groups like the Sydney Solidarity Network, which coalesces a volunteer base to help people retrieve stolen wages through public protest, are already embarking on the process of harnessing collective action to support workers. However, localised grassroots collectives cannot carry the burden of the labour movement alone. We must organise across borders, industries and identities if we are to build the bonds of robust class struggle that will revitalise the discourse of workers’ rights in every corner of this country.

Together, we have the power to make jobs exactly what we want them to be. We can’t afford not to use it.


Xiaoran Shi is a reticent law student and a freelance writer. You can follow her on Twitter @XiaoranShi