The Nick Xenophon Team has failed to make a submission to the Fair Work Commission on penalty rate cuts as it had promised but insisted it was still considering ways to exempt current workers from losing take-home pay as a result of the cuts.
On Monday, Nick Xenophon told Guardian Australia the party had not made a submission on the transitional arrangements, which closed on Friday, because of concerns FWC did not have the power to make orders protecting take-home pay.
The comments suggest the party may seek a “third way” in between asking FWC to make take-home pay orders and the preferred solution of Labor and the Greens, which is to use legislation to reverse the cuts in full.
On 23 February the FWC cut Sunday and public holiday penalty rates in the retail, pharmacy, fast food and hospitality industries by between 25% and 50%.
The commission called for submissions on transitional arrangements, including whether it has the power to effectively exempt existing workers from cuts by ordering that their take-home pay not be reduced as a result of the changes.
The federal government submitted that the FWC could not make take-home pay orders as part of the regular four-yearly reviews that produced the most recent round of penalty rate cuts.
On 20 March, Xenophon told the ABC he would write to the FWC in “the strongest possible terms that workers who are already getting penalty rates should be quarantined on that”.
On Monday a spokeswoman for NXT confirmed the party had not made a submission.
Labor’s employment spokesman, Brendan O’Connor, said: “Just like Malcolm Turnbull, Nick Xenophon is all talk and no action.
“Senator Xenophon talks out both sides of his mouth – one thing in Adelaide and one thing in Canberra.
“Any political party that cares about workers and doesn’t want to see them getting a pay cut would support stopping the cuts to penalty rates.”
Xenophon told Guardian Australia: “Given the legal impediments to the Fair Work Commission with respect to take-home pay orders, we’re working through the issues and getting advice about how to protect workers’ pay.
“We still don’t want to see existing workers getting an actual pay cut.”
The Greens workplace relations spokesman, Adam Bandt, said Xenophon’s “last chance” to protect wages was now to support the bill co-sponsored by Labor, the Greens and Jacqui Lambie.
“What Nick Xenophon needs to do is stop hedging his bets and vote to protect people’s wages and end the uncertainty.”
Labor says Sunday rate cuts will cost workers $77 a week. The Australia Institute has estimated – using the government figures of 285,000 workers affected – the cuts will cost the budget $164.2m a year.
An expression of interest by the Hair & Beauty Australia Industry Association, represented by the Australian Industry Group, to vary the hair and beauty award has sparked concerns that employer groups are already moving to cut penalty rates in other industries using the FWC decision as a precedent.
On Monday O’Connor moved Labor’s penalty rates bill to second reading in the lower house. Labor and the Greens also have a bill before the Senate that would reverse the penalty cuts in full.
The bill provides that the FWC cannot vary an award in a way that would, or would be likely to, reduce the take-home pay of any employee covered by an award.
On Monday, the Labor leader, Bill Shorten, said the Turnbull government’s opposition to the bill meant penalty rate cuts were “the thin edge of the wedge – nobody’s penalty rates are safe in this country”.
At a doorstop in Canberra, O’Connor said the federal government’s submission had “made no attempt to even mitigate the effects, to soften the blows of this decision”.
“And there’s no reference whatsoever to the new set of employees that may well be subjected to these cuts ... beauticians, hairdressers, people working in clubs and hotels, in restaurants, struggling to survive on tips and a decent minimum wage.”
