When Does Changing the Rules Become Moving the Goalposts?


Last year, after hearing 6,000 submissions and analysing mountains of economic data, the Fair Work Commission decided to reduce some Sunday penalty rates – in retail, hospitality and a few other industries.

Since then, Bill Shorten has announced that under his leadership, Labor would reverse the decision and put wages back up to their original levels.

No matter whether you think penalty rates are too high, too low, or just right, we should all be worried about Shorten’s disregard for the independent umpire. Overriding decisions of Australia’s courts and commissions sets a dangerous precedent for our economy, our businesses and the people we employ.

It’s no exaggeration to say that this kind of approach puts at risk over 100 years of positive developments for Australian workplaces. The Commission (in its current and previous forms) have been essential to bring about basic wages, maternity leave, and annual minimum wage increases which are always higher than CPI.

All of these developments have come about because politics has been kept out of the process, leaving it to courts to balance the needs of employers and workers and overall business environment. For these reasons, both employer groups and unions have traditionally respected the Commission’s decisions, even when those decisions didn’t go their way.

Labor used to value and fight for independent arbitration. I’m sure that this principle was at the front of Bill Shorten’s mind in 2013, when he as the Workplace Relations Minister passed legislation requiring the Fair Work Commission to review penalty rates every four years. I’m sure it was the reason he said in 2016 that governments getting involved in setting pay rates was “playing with fire”. And before the 2016 Federal Election, Shorten said (twice) to 3AW’s Neil Mitchell that he would accept the tribunal’s decision.

By promising to change the court’s decision, Shorten and Labor have started down a slippery slope – one that means any future government (Labor or Liberal) should feel free to simply overrule the Commission if and when it suits them.

Personally, I haven’t always seen eye-to-eye with the Fair Work Commission’s judgement. In fact I have been openly critical of their decisions in the past. But when does “Change the rules” start to become “Move the goalposts”? And what’s to say next time politicians decide to overrule the Commission’s judgement, it won’t be to hurt workers and their families?

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