Showing posts with label Submissions. Show all posts
Showing posts with label Submissions. Show all posts

Tuesday, June 09, 2015

Submission to Treasury consultation into exposure draft of Tax Laws Amendment

The Tax Laws Amendment (Tax Integrity Multinational Anti-avoidance Law) Bill 2015 exposure draft represents an important and concerning watershed in the practice of Australian corporate tax governance.

The draft bill would base the assessment of Australian tax liabilities on an assessment of tax rules in other countries.  It undermines global tax agreements to which Australia is a part that have developed to prevent double taxation, risking the phenomenon that those agreements were designed to avoid.  It offers a disincentive for the world's biggest firms from establishing operations in Australia.  It mischaracterises readily understandable business decisions as tax avoidance and penalises firms for normal corporate structural practices.

The scope of this legislation amounts to a substantial, yet entirely unpredictable, increase in corporate tax, and an attendant increase in the regulatory burden faced by large firms operating in Australia.  I dispute the claim that this is a "tax integrity" measure.  It is very much a tax increase.

Friday, February 20, 2015

Innovation strangled by red tape

My recent research has demonstrated that business entry rates in Australia have been in steady decline for the previous decade to June 2014.  This falling business turnover signals a decline in Australian dynamism and entrepreneurship.

It is precautionary government regulation that is instigating this decline.  The current culture of red-tape threatens to prevent the next Facebook or Google launching on Australian shores by over-valuing certainty, and under-valuing flexibility.

The process of the free market is the only true business selection mechanism;  expanding productive and innovative businesses while replacing unproductive dead wood.

This process is irreplaceable, but it may certainly be hindered.  Many regulations, while framed in terms of ‘public interest', more accurately act as friction in the free market process;  their costs are often ignored.

These frictions prevent the market from facilitating learning and experimentation with new ideas, technologies and businesses.

The market cannot select what is worthy and what is not if technologies are continually restricted before we even know how they are best used.

Rather than as a nation of rules, regulations and road-blocks, Australia must position itself as a nation of experimentation, testing and exploration for entrepreneurial talent.

Much of this friction is due to the ‘precautionary principle', where governments over-value hypothetical harms, and undervalue the capacity of the market to test, experiment and evolve.

Industry-specific regulation and red-tape must be critically avoided.  This includes occupational licensing, quotas, subsidies and suchlike.  These apply artificial rigidity in what are constantly evolving industry boundaries and the development of innovative new sectors.

Friday, March 14, 2014

Submission to Department of Education Review of the National Curriculum

EXECUTIVE SUMMARY

The National Curriculum is unbalanced, biased, and fundamentally hostile to Australia's Western Civilisation legacy.

The National Curriculum has three cross curriculum priorities — Sustainability, Asia and Australia's Engagement with Asia, and Aboriginal and Torres Strait Islander Histories and Cultures — which are supposed to be taught in every subject.

These priorities are inappropriate and ideologically driven.  It is surely not appropriate for a Health and Physical Education curriculum to prescribe learning objectives about Aboriginal cultural identity.  Nor should Mathematics classes include instruction on sustainability.

The ideological nature of the National Curriculum is most manifest in the Year 7 to 10 history curriculum.

The history curriculum over-emphasises themes such as environmental determinism, focuses attention disproportionately on the history of European colonialism and multiculturalism, and takes a materialist approach to questions of class.

Conversely, the history curriculum entirely downplays the role of ideas as a driver of historical change, entirely misses the significance of liberalism in the development of liberal democracy in Australia, and downplays and denigrates the development of Western Civilisation and religion.

While I welcome the review of the National Curriculum, it remains the case that any National Curriculum will be ideological in some form.

As a consequence, rather than amending or adjusting the National Curriculum to fix these problems, the most sustainable and liberal solution would be to scrap the National Curriculum altogether.  The government should focus on eliminating barriers to schools choosing and developing their own curriculum in consultation with their school community.



INTRODUCTION

My research demonstrates that the National Curriculum is unbalanced, ideologically-biased and systematically hostile to the legacy of Western Civilisation.

In January 2014, Commonwealth Education Minister Christopher Pyne announced a review of the National Curriculum.  Minister Pyne noted that the "truth about the benefits of Western civilisation should be taught in our curriculum.  And I think that there is some fair criticism that the curriculum is balanced one way rather than the other." (1)

It is my view that the National Curriculum's cross-curriculum priorities distort the curriculum's content across each learning area.

The history curriculum is of particular concern.  It over-emphasises the following themes:

  • The environment
  • Colonialism
  • Multiculturalism
  • Social history
  • Class and minority groups
  • Anti-modernism

In addition, the following themes are either under-emphasised or do not expressly appear in the history curriculum at all:

  • History of Ideas
  • Liberalism
  • Economic growth and technology
  • Political history
  • Western civilisation
  • Religion

Curriculums are by their very nature ideological.  It is my view that no coherent and ideologically-neutral National Curriculum could be developed that would satisfy the needs of all schools, all parents, and all children.  Therefore:

  • The National Curriculum should be scrapped.
  • The government should focus eliminating barriers that prevent schools from developing and implementing the curricula of their own choosing.

About this submission

This submission includes a discussion of the problems with the National Curriculum's Cross-Curriculum Priorities and a detailed critique of content of the Year 7 to 10 history curriculum.

It does not address any issues relating to the structure of the curriculum.  While I acknowledge that much could be done to improve the coherency of the National Curriculum, particularly in the history learning area, I am only concerned here with the manifestation of the curriculum's ideological and philosophical assumptions.  These are explicitly stated as the Cross Curriculum Priorities and are especially evident in the Year 7 to 10 history curriculum.

This submission is particularly concerned with the way the National Curriculum is being interpreted in classroom settings.

To gain insight into how the ideological assumptions in the curriculum documents are being interpreted, I have analysed a number of history textbooks that have been written to comply with the dictates of the new National Curriculum.

Textbooks surveyed include the Jacaranda History Alive books, the Oxford Big Ideas and the Pearson History.  These textbooks are currently being used by a large number of schools across the country.  I consider these books to provide an insight into how the history curriculum will look in practice.

Obviously, the textbooks do not always represent the intentions and sympathies of the original curriculum writers and are produced by independent publishing companies, not by the government, and schools are not required to use them.

However, the National Curriculum-compliant textbooks illustrate the most pressing shortcomings of the National Curriculum very clearly.  Because the curriculum in its current form is extremely explicit, virtually all of the textbooks are structured in exactly the same way, include the same information, and even have the same chapter headings.  As such, they all share the same over-emphases and omissions as the National Curriculum, and illustrate them far more clearly than the curriculum documents.



CROSS-CURRICULUM PRIORITIES

The most significant problem with the National Curriculum is Cross-Curriculum Priorities.  At the present, these priorities are:

  • Sustainability;
  • Asia and Australia's Engagement with Asia;  and
  • Aboriginal and Torres Strait Islander Histories and Cultures.

Currently, the curriculum is structured in such a way that makes it necessary for each of these priorities to be emphasised across all learning areas.  All three of these priorities are clearly political and ideological.  As I have written,

All [are] worthy topics, of course.  How are they ideological?  Take sustainability.  The sustainability theme is intended to "[create] a more ecologically and socially just world through informed action".  That's virtually the definition of ideology:  a positive description (we are harming the planet) combined with a normative ideal of a better social order (an ecologically and socially just world).

If this isn't clear enough, well, one of its "organising ideas" is the sustainability "world view":  "value diversity and social justice are essential for achieving sustainability".

Perhaps this is an ideology you agree with.  Ideology isn't a bad thing.  Everybody's thought is shaped by ideology, whether they're aware of it or not.  But it's ideology nonetheless. (2)

The cross-curriculum priorities crowd other important content out of the curriculum.  An example of this is the English curriculum.  In it, students are repeatedly supposed to refer to Dreamtime stories, Asian legends and Aboriginal rock art to learn concepts like the structure of stories, rhythm, and illustrated texts.

The repeated emphasis on these issues throughout the Foundation to Year 10 English curriculum means that other important aspects of "English" are omitted.  The only European literature mentioned in the Foundation to Year 10 curriculum, for example, appears to be Cinderella and Jack and the Beanstalk.  While there are frequent references to the Dreamtime and Asian literature, there is no mention at all of texts that have been foundational to western and therefore Australian literature — for example, Homer, Virgil, the Bible, Chaucer, Shakespeare, and Milton, among many others which could have warranted a mention.

The Cross-Curriculum Priorities are also emphasised throughout the Health and Physical Education, Arts, Technologies, and even Mathematics curricula.  In the first of these, there is a strong emphasis on "cultural identity" and "diversity".  For example, one content description in the Year 3 and 4 Health and Physical Education curriculum reads:  "research own heritage and cultural identities, and explore strategies to respect and value diversity".

There is a very strong emphasis on the environment in the Technologies curriculum.  Shakespeare is not studied in Drama, yet there is at least one content description for Aboriginal and Torres Strait Islander drama in virtually every year.

Elaborations in the mathematics curriculum recommend lessons about symmetry in Asian textiles and Aboriginal counting methods.

For the above reasons, the Cross-Curriculum Priorities are probably the most significant underlying problem in the National Curriculum in its current form.

Some critics of the National Curriculum have argued that balance could be restored by adding in a fourth cross-curriculum priority — "the continued recognition of 'western/Judeo-Christian influences on our society'." (3)  While I agree that this is extremely important and should indeed appear in any good curriculum, simply adding another Cross-Curriculum priority is unlikely to resolve these underlying issues.  It suggests that students will have to study Western culture and Christianity in disciplines like Science, Mathematics, and Health and Physical Education, which is certainly not appropriate in subjects that do not need to include cultural studies at all.

For this reason, the most effective and immediate change that the inquiry could recommend would be to abolish all of the Cross-Curriculum priorities.

There is no need for themes to be repeated in every section of the curriculum.  Each discipline should have its own "priorities", depending on the purpose and intended outcomes of the particular discipline.

For example, it is the role of history to give students an understanding of how the world came to be in its current state, but the primary priority of mathematics should be to give students at least a basic understanding of numeracy.  The two disciplines should be completely separate.  They do not need to overlap the content or include the same themes.



IMBALANCE IN THE HISTORY CURRICULUM:  OVER-EMPHASIS

The history curriculum disproportionately focuses on a number of themes that will give students a distorted and ideological vision of Australia's past and the significance of Western Civilisation.  This section outlines five themes that are over-emphasised in the history curriculum.  It is not intended to suggest that the importance of, for instance, the environment in history should not be taught.  Rather, the disproportionate focus on these themes to the exclusion of other themes elaborated later in the submission demonstrates the ideological flavour of the curriculum.


1. The Environment

As one of the cross-curriculum priorities, the environment plays a very prominent role throughout the entire history curriculum, but especially in the Year 7 to 10 curriculum.  Overall, it reflects an environmental determinist view of human civilisation.  The message repeated throughout much of the content is that "humans and their natural environment are closely interrelated", implicitly taken to an extreme where environmental factors such as climate presuppose the success or failure of any given civilisation.

This perspective is first revealed in Year 7, where all "depth studies" on the ancient world begin with exactly the same content description:

The physical features of [an ancient civilisation] and how they influenced the civilisation that developed there

The emphasis on this point is the same regardless of which civilisation is being described — whether Egypt, Greece, Rome, India or China.  It is one of just five content descriptions that the curriculum prescribes for each.

The environment theme re-emerges in Year 8 — particularly in the Asian section.  There, it emphasises that Polynesian societies declined because they exploited their environmental resources, that climate change caused the decline of Angkor, and includes a content description on how the Shoguns used natural resources.

In Year 9, it includes a content description on the Industrial Revolution and its impact on the environment:

The short and long-term impacts of the Industrial Revolution, including global changes in landscapes, transport and communication

Naturally, many of the textbooks follow this trend and emphasise the damage that the Industrial Revolution did to the environment.  Oxford Big Ideas includes a number of pages on it, noting — among other things — that "the Industrial Revolution left humanity dependent on carbon fuels" (a bad thing!)

By far the most concerning appearance of the environment in the history curriculum, however, is in the Year 10.  This post-WWII section could have included many things.  One would have expected a depth study on the Cold War, or at least the Cold War era.  Instead, the last two depth studies in Year 10 are a core unit on Indigenous rights and an elective on either pop culture, immigration and refugees, or the environment movement.

In this depth study, they are supposed to learn about the notion of "Gaia — the interaction of Earth and its biosphere", "limits to growth — that unlimited growth is unsustainable", and "rights of nature — recognition that humans and their natural environment are closely interrelated".  They are supposed to learn about a range of "environmental impacts" and learn about how they motivated major protests, like the campaign to stop the blocking of Gordon River.

All of the textbooks are similarly biased.  For example, the Nelson textbook rendition of this section of the National Curriculum includes lengthy descriptions of events like the Blockage of Franklin Dam and Lake Pedder, and profiles of people such as Jack Mundey, Peter Garrett and groups like the Rising Tide Newcastle and Greenpeace.  It then insists that the debate over anthropogenic climate change is settled and that scientists find An Inconvenient Truth to be "factually accurate".

Overall, there is a very strong environmental theme throughout the National Curriculum.  The theme repeated throughout is that climate presupposes the fate of a civilisation;  apparently, it presupposed the fate of ancient civilisations, was responsible for the collapse of various societies throughout history, and will be devastate us in the coming years.

This is not to suggest that the environment and geography did not play an important role in history and in shaping how different civilisations developed.  It certainly did — although so did ideas and institutions, which do not get quite the same attention.

This history curriculum, however, emphasises the impact of the environment at the cost of denigrating the role of human agency, and then worsens the situation still by including issues and events that are political in a context very sympathetic to left-wing green movements.  A history curriculum is no place to preach these ideas.


2. Colonialism

Another recurring feature in the curriculum is colonialism — or, more specifically, European colonialism and its evils.  This begins in Years 5 and 6, which discusses European settlement in Australia and "the nature of convict or colonial presence" and "experiences of Australian democracy and citizenship" of Aboriginal people.

The Year 7 to 10 curriculum includes many more references to colonialism.  Already, Year 8 includes whole depth study on the Spanish Conquest of the Americas.  This subject describes the violent conquest of the Aztecs or Incas by the Europeans and the disastrous "longer-term effects of colonisation, including slavery, population changes and lack of control over resources".  The textbook renditions of these depth studies include graphic tables detailing the population declines in the region.

Nearly half of the Year 9 depth study on early Australia is about the damage Europeans did to non-Europeans.  Much of the equivalent unit on Asia is about European colonialism.  In the History Alive textbook, this is transformed into a chapter almost purely about China gaining independence from the oppressive European powers, which conveniently cuts off when the Communist Party comes into power — but this is perhaps not entirely due to the contents of the curriculum.  The overview for that year includes an elaboration on "recognising how Asian societies responded to European imperialism, the extent to which they were changed and the influence they exercised on the rest of the world".

Finally, the Year 10 history curriculum includes a core depth study about civil rights movements and "the struggle of Aboriginal and Torres Strait Islander peoples for rights and freedoms" against the European colonists.  The Stolen Generations, the Mabo decision, and the Apology are all mentioned in the content descriptions, along with the Declaration on the Rights of Indigenous Peoples (2007).

Overall, there is a strong emphasis on specifically European colonialism throughout the history curriculum and the negative impact that this had on indigenous populations.  This is not to say that it should not be included at all, of course, or that much of what the curriculum includes is fundamentally bad or factually flawed in some way;  but the emphasis that it places upon these concepts is undue.


3. Multiculturalism

Since one of the cross-curriculum priorities is "Asia and Australia's engagement with Asia", it is likely to be of little surprise that multiculturalism is another feature of the history curriculum that is strongly over-emphasised.

Throughout Years 7 and 8, virtually half of the content descriptions are about Asian civilisations.  Of the other three electives on ancient civilisations in Year 7, two are about Greece and Rome — which are both very important — and one is about ancient Egypt — which is popular but not as relevant to Western and Australian history as the previous two.  All strictly European medieval history in Year 8 is grouped under the heading "the Western and Islamic World", which also includes an elective depth study on the Ottoman Empire.

Similarly, in Year 9 it is not compulsory to complete a depth study on Australian history;  an elective on modern Asian history can be completed instead.  Much of Year 10 is explicitly about multiculturalism — particularly the depth studies on immigration and human rights movements.

In the Year 10 depth study on immigration, students are supposed to study "the contribution of migration to Australia's changing identity as a nation and to its international relationships".  This is essentially a summary of one of the main underlying themes in the existing curriculum.


4. Social history

Most history in primary school is either about historical skills or social history.  This is understandable, although whether or not it is the best way to introduce history is indeed open to debate and it should not be a given.  The curriculum for Years 4 to 6 prescribes various content descriptions on the daily life of Australia's inhabitants, particularly Aboriginal and Torres Strait Islanders and migrants from Asian countries.

There is a problem, however, in the sense that the curriculum continues its strong focus on social history into the secondary school curriculum.  The depth studies prescribed in Year 7 on the ancient civilisations are largely about social history — about their values, practices, beliefs, key groups in society, foreign cults, and contacts between Asia and Europe.  The medieval history depth studies are also mostly about social history.  The Australian history depth study in Year 9 is mostly about "experiences", as are the depth studies on the Industrial Revolution and the Movement of peoples.  The only depth study that is not predominantly about social history in Year 10 is World War II.

Social history is undoubtedly important, and many students may find it more interesting than bare political history.  Without proper historical context, however, it is meaningless.  The over-emphasis of social history and the corresponding lack of emphasis on political history means that it must be very difficult to derive a sense of chronology from most of the curriculum in its current form, let alone a sense of narrative and long-term developments.  The Year 7 and 8 depth studies in particular are severely lacking in context.

For Years 7 and 8 at least, most of the content in the National Curriculum is social history at the cost of providing a chronological and narrative context and illustrating how changes occurred over time.


5. Class and Minority Groups

A more concerning aspect of the curriculum is that there is a strong focus on class and minority groups.  For example, the Year 7 overview content includes the following content description:

key features of ancient societies (farming, trade, social classes, religion, rule of law)

This appears to imply that all ancient societies without discrimination had exactly the same features in terms of "social classes", when the reality was very different.  Yet as if to reinforce this view, all the "Mediterranean" and "Asia" breadth studies include the following content description:

Roles of key groups in ancient [specify] Society, (such as ...) including the influence of law and religion

In each case, the role of minority groups — women, slaves, plebeians — are emphasised, giving the impression of rigid, strongly class-oriented societies.  Often the summaries are actually incorrect or omit important information.  It does not mention anywhere that Athens was the first democracy, although one elaboration does include an obscure and possibly misapplied reference to "the invention of freedom" in the ancient Greece depth study.  Similarly, it depicts the key groups of Roman society as "patricians, plebeians, women, slaves".  This might have been true in about 300 BC, but it the curriculum does not mention that the distinction between patricians and plebeian nobiles was increasingly blurred towards the end of the Republican period, and that the patrician order virtually disappeared in the early empire.  Yet the textbooks derived from the curriculum follow it in drawing this rigid depiction of Roman society.  As the Pearson Year 7 mistakenly says:

... the plebeians in Rome were the social class who were poor, uneducated and low in status.

Here, some important facts have been omitted to fit into the "key groups" content description in the curriculum.  This is a gross oversimplification of the structure of Roman society — which, in reality, was highly complex — and it appears to have Marxist undertones.  It is reflected in each of the depth studies from that year and in various places in the textbooks.

The focus on social classes and "power" reappears time and time again as a major theme throughout the curriculum.  When it is not a distinct aristocratic class that is oppressing the plebeians, then it is the Christian church instead.  The European history depth studies in Year 8 focus on "the dominance of the Catholic Church" and makes the odd suggestion that Gregorian chants and castles were an expression of its power.

The Oxford Big Ideas and History Alive textbooks for this year both include several pages of quotations from Marx and Engels.

There is also a strong emphasis throughout the curriculum on the development of socialism in the Progressive Ideas and Movements depth study, as demonstrated in the following content descriptions:

The emergence and nature of key ideas in the period, with a particular focus on ONE of the following:  capitalism, socialism, egalitarianism, nationalism, imperialism, Darwinism, Chartism

The reasons why ONE key idea emerged and/or developed a following, such as the influence of the Industrial Revolution on socialism

The Movement of Peoples subject the same year is mostly about the slave trade, while the Australian unit is mostly about the experiences of non-Europeans and living and working conditions.  In the textbooks, this translates to women's voting rights and old-age pensions.

In Year 9, there is an increasingly strong emphasis on the poor living and working conditions in the Industrial Revolution and how this led to the trade union movement.  Of course, Year 10 includes a compulsory depth study on "the struggle of Aboriginal and Torres Strait Islander peoples for rights and freedoms" and the significance of the Universal Declaration of Human Rights and the US civil rights movement.  Virtually two thirds of the year is spent completing depth studies on protest movements and the plight of minority groups.

Overall, there is a definite focus on class and minority groups in many of the content descriptions, and that in areas the history curriculum — and even more so, the textbooks derived from it — appear to have Marxist undertones.


6. Anti-modernism

In addition to all of the above over-emphases, another theme that is repeated throughout the curriculum is anti-modernism.  This theme is related to many of the above — particularly environmentalism and, to some degree, colonialism — and is brilliantly expressed in this very humourless extract from the Pearson Year 7 textbook:

Some historians speculate that the shift from the hunter-gatherer way of life to the settled life of farming was one of the worst mistakes humankind ever made.  Studies by anthropologists of the few existing hunter-gatherer societies, such as the !Kung San of the Kalahari in Africa, show that they work far less hard than neighbouring farmers and have a better and more varied diet.

This is followed a few pages later by an exercise in which students are earnestly to debate:  "Should modern humans return to the hunter-gatherer way of life?"

While there is nothing in the curriculum itself that is quite as blatant as this, a similar theme nevertheless recurs throughout the Year 7 to 10 curriculum.  As a whole, it paints a very dim image of modern society.  It includes content descriptions on the impact of the Industrial Revolution and economic growth on the environment and a whole depth study on the environment movement, which emphasises the negative impacts of "population increase, urbanisation, increasing industrial production and trade".

The curriculum portrays a very negative view of modernity, if not of human civilisation in general.  It is a theme that underlies much of the content and is clearly not appropriate in a National Curriculum.



IMBALANCE:  UNDER-EMPHASIS

The over-emphasis of themes such as environmental determinism and colonialism is matched by a marked under-emphasis of a number of significant themes in the development of human history and of Western Civilisation.  First among these is the absence of the history of ideas.


1. Ideas

An especially concerning omission from the curriculum and related textbooks is the history of ideas — or rather, a history of ideas and concepts and their relationship to the institutions, economic growth and the success of any given civilisation or nation.  At all stages of the curriculum — with the exclusion of Year 9, which will be discussed in more detail below — it prescribes what is very much a materialist and environmental view of history, in which success is largely determined by environmental and geographical conditions.  There is very little in the history curriculum on the role of ideas of how they have developed over time.

To use an example, if there are a handful of stand-alone "facts" that most thirteen year olds should know about ancient Greece, two of them would definitely be that:  the ancient Greeks (particularly the Athenians) invented philosophy and democracy;  and by extension, both of these inventions have had a profound impact on the institutions of many European nations and their former colonies, including Australia.

At the present, however, although there is much emphasis on the geographic and environmental setting on ancient Greece, the coverage of democracy in the Year 7 curriculum is extremely scant.  It introduces the concept from the perspective of social or class history, emphasising that there were still different "classes" in Athenian society — men, women, and children — and remaining silent on the significance of democratic ideas.  In fact, it doesn't actually use the word "democracy" at all;  instead, it ambiguously attributes the "the invention of freedom" to the ancient Greeks — which is not strictly justified.

In keeping with this, most textbooks include half a page to a page (usually shared with Sparta) on the development and constitution of Athenian democracy.  Some even portray Athenian democracy in a somewhat negative light.  An inquiry task on page 203 of the Year 7 Pearson textbook requires students to write an "oral history" by "an Athenian slave working in the silver mines, who talks about his view of 'democracy' in Athens".  There is very little emphasis on the historical significance of the development of democracy in historical terms.

The curriculum is even more silent on Greek philosophy, and does not even mention it in the content descriptions, despite the fact that it mandates content descriptions on "the spread of philosophies and beliefs" in the India and China depth studies the same year.  Likewise, at least one textbook — Oxford Year 7, mentions Plato and bolds the word "philosopher", without explaining what Plato's contribution to philosophy was or why it was significant.

Just as there is very little on the development of Greek democracy and philosophy and its significance, there is very little on the significance of Roman law.  Since Roman law and customs (grouped together under the same content description) get exactly the same vague treatment as every other ancient civilisation, there is nothing in there to suggest that it was a forebear of many European legal systems — and our own.  Equally, there is nothing on the development of English Law (the Domesday book, for example, does not earn a mention, nor for that matter does the Battle of Hastings) and there is very little or nothing in the years 7 to 10 on the ideas that influenced the institutions of England, and therefore of Australia.

Nowhere does the curriculum discuss anything about the development of natural law and human rights before the United Nations' Declaration of Universal Human Rights in 1945, as if it were at this point that "human rights" were invented.

One could read through most of the curriculum and gain the impression that, for the most part, ideas (with the exclusion of socialism) don't matter.  There is very little on how ideas influence institutions, and how institutions impact the success or failure of a civilisation or nation and the wellbeing of its people.  Instead, the curriculum places an emphasis on the geographic setting of each civilisation and its relationship with the environment, and the different social classes in society.  When ideas are mentioned, the curriculum paints a sketchy and incomplete picture.


2. Liberalism

Closely related to the above is the complete omission of liberalism from the curriculum.  This is especially astounding because the curriculum does include a depth study in Year 9 on "progressive ideas and movements" — perhaps, along with the protest movement depth studies in Year 10, the only place in the curriculum where "ideas" do play a role.  The ideas mentioned include capitalism, socialism, Darwinism, and Chartism, but liberalism is not mentioned.

Although the depth study emphasises socialism, using it as the example in the "progressive ideas and movements" depth study and suggesting that students learn how the labour movement was influenced by the Industrial Revolution, the concept of liberalism is omitted altogether — an idea that has done much to shape the institutions of modern Australia.

That the curriculum mentions socialism, Chartism and social Darwinism but not liberalism is not acceptable, and is very illustrative of the one-sidedness and selectiveness of the history curriculum.


3. Political history

Given the strongly social, environmental and materialist approach to the history curriculum, it is perhaps unsurprising that political history throughout the curriculum is also severely lacking.  The fact is that most of the chronology and political history is currently included in the "historical overview" content outlined at the beginning of each year — content which is supposed to comprise about 10% of total teaching time in history, or about eight hours of class.  Most depth studies focus on social history — daily life, the structure of society, and geographic features — but include very little on names, dates, chronology, historical turning points, and long-term developments.

The Year 7 depth studies each include a content description on the life and achievements of single notable individuals, but this is apparently to be examined in isolation and is therefore not likely to be very informative.  This is essentially the extent of political history in the Year 7 curriculum.  In the ancient Rome depth study, students are to learn about Julius Caesar or Augustus.  The Pearson Year 7 textbook includes a double page on the career of Julius Caesar, depicting his life as a "timeline of the fall of the Republic", without examining his relationship with other significant individuals at the time and important developments before and after his lifetime that also contributed to the collapse of the Republic.  A very bare timeline of the life of Caesar is not adequate coverage of the history of this period by any account.

This is presumably not because of lack of space — the curriculum is extremely explicit — but because learning about "big names", dates, and what actually happened is apparently not as important as learning about how civilisations interacted with the environment and about how the elite groups of society oppressed the less powerful groups, and about social customs in general.

This is very well illustrated in the Pearson Year 7 textbook, which includes a list of important names from ancient Greece for students to memorise.  Rather than being the names of important individuals — Pericles, Demosthenes, Alexander — they are the names of Greek gods, heroes and monsters.  It is about the culture and religion of ancient Greece, not the history.  There is no injunction anywhere else for students to memorise a list of names from ancient Greece.

This trend is largely the same throughout Year 8, where most depth studies include a single content description on one historical event — for example, the fall of Constantinople in 1453 is mentioned in the Ottoman Empire depth study.  Nowhere, however, is there an attempt to link these events with other important events, or to place all of this in a chronological narrative.  There are very few places in which basic list of events and developments are listed.

The situation does improve slightly in Years 9 and 10.  The depth studies on World War I and World War II are essentially adequate as a basic introduction, and the quality of these chapters in the textbooks is usually quite good.

Ironically, although the last four depth studies in Year 10 are very poor choices for a National Curriculum for various reasons, they are the only depth studies that actually do include lists of events and dates to learn.  For example, the depth study on the development of "human rights" includes a list of events in the "indigenous rights movement", leading up to Kevin Rudd's "Sorry" speech.  The depths studies themselves, however, are all at the core about social history, and mostly about social movements;  the most important political developments for that period which arguably should have been the focus of the last part of the curriculum — for example, the Cold War — are covered only in the overview content.

The lack of political history — especially in Years 7 and 8, but also in 9 and 10 — means that it must be very difficult for students to gain a sense of how the different pieces of history fit together, and of how developments occurred over time, let alone who the key individuals were and how they relate to other key individuals.


4. Economic growth and technology

The history curriculum includes very little information on economic growth and technology, and very little economic history in general.  Of course, it does mention trade between societies occasionally — for example, it is listed as a "key feature of ancient society" and in the depth study on the Vikings, and the slave trade gets a number of mentions — but the only time that "growth" is mentioned is in a reference to the growth of the environment movement in Australia and the notion of "limits to growth — that unlimited growth is unsustainable", both of which appear in the depth study on the environment movement.

Most references to technological innovation appear in Year 7, exclusively with reference to prehistory — for example, the move from using stone tools to woodwork — and Aboriginal technology — including the shell midden and the use of "natural resources".  There do not appear to be any explicit mentions anywhere of how technology and economic growth has impacted settled civilisations or how it improves living standards.

The omission becomes most obvious in modern history in Year 9 and 10, when the economic side of history should have become extremely important, particularly in the industrial period and beyond.  Yet the overview content includes very little information on the economy and how it improved living conditions, although it does mention how technological innovation affected them (which could be taken either positively or negatively.)

The depth study on the Industrial Revolution discusses the short and long-term impacts, but emphasises "global changes in landscapes, transport and communication", and not the economy and living conditions;  the elaborations emphasise the impact of factories, mines and cities on the environment and population growth, and the development of trade unions.  There is a content description on "the experiences of men, women and children" and "their changing way of life", but this is mostly in terms of "longer working hours for low pay and the use of children as a cheap source of labour" and "the impact of steam, gas and electricity on people's way of life".

While some of the textbook renditions of this section of the curriculum are excellent and include much more information on technology and economic changes, the National Curriculum itself focuses largely on working conditions, environmental damage, and the development of socialism in the section on the industrial revolution.

In addition, in Year 10 there is nothing anywhere that emphasises the fact that western countries in the twenty-first century enjoy economic prosperity unprecedented at any other time in history.  Instead, most of Year 10 is about protest movements and the impact of modernisation on the environment.  All that it does include is a content description on "the intensification of environmental effects in the twentieth century as a result of population increase, urbanisation, increasing industrial production and trade", within the environment movement depth study.


5. Religion

The curriculum is also extremely silent on the matter of religion — especially Christianity.  This is curious, since it neglects that a small majority of Australians (roughly 61%) still identify themselves as Christian, making it — quite aside from its historical importance — by far the most significant religion in the country to this day (by contrast, the second-largest category in 2011 was "no religion", which now accounts for about 22%).

Yet Christianity is not mentioned in Year 7 ancient history, although it is one of the most important legacies of the Roman Empire.  Whenever Christianity is mentioned in Year 8, it is usually in a distinctly negative context or described in terms of its oppressive power — for example, Gregorian chants and castles are somehow supposed to demonstrate the "power" of the church and how it maintained its control over the population.  It is mentioned as a motive to the Spanish conquests of the Americas, and in the context of its opposition to the "progressive movements" in Year 9.  This is a very one-sided a negative view of Christianity.  There is no emphasis anywhere of the more positive contributions it has made — for example, the invention of human rights, the first public hospitals, charities, and the abolition of slavery were all driven in a large part by Christianity.  Yet the history curriculum does not mention any of this and even incorrectly attributes the first public hospitals to Islam.


6. Western Civilisation

A final point that the curriculum neglects is Western Civilisation, and fails to recognise its significance and relevance to modern-day Australia.

Although Greece and Rome are both of key importance to the history of Western Civilisation and the development of Australia's institutions — along with many others, including the civilisation of eastern Europe and Islamic civilisation — it is impossible, given the current curriculum, for a single student to study both of them;  in fact, would be very possible for a student to study ancient Egypt and bypass Greece and Rome altogether.  Moreover, the curriculum in its current form does nothing to emphasise the importance of Greece and Rome and exactly why they are especially important for Australia;  on the contrary, both are treated in exactly the same way as all the other ancient civilisations in the Year 7 depth studies.

The same is true in Year 8, where a large number of the depth studies about Asia and the Ottoman Empire and medieval Europe are found in the same category.  Similarly, the curriculum in its current form makes it impossible for any student to study both Medieval Europe and the Renaissance, although it is not required to study either and it would be possible to go through Year 8 having studied the Ottomans and knowing very little about medieval Christendom.

It clearly would have been more difficult for the curriculum to use the same scattered approach for the modern period of history in Years 9 and 10, during which western European civilisation spread across the world — including to Asia.  However, even here, the curriculum is somewhat inadequate;  it does not adequately cover the period of European history between 1600 and 1750, which was critical for the development of Western Civilisation and for British history.  Indeed, there was very little in the curriculum as a whole on British history, although it is the primary focus in the depth study on the industrial revolution.  Finally, in Year 10, the curriculum lacks anything but a sketchy overview of the Cold War, which has shaped Western Civilisation in the present day.



CONCLUSION

A biased and confused curriculum

There are two points that can be drawn from this discussion.  The first is that the curriculum appears to portray Western Civilisation — of which Australia is undeniably a part — and the elements and earlier civilisations that have shaped it in an either ambivalent or distinctly negative light, which is disappointing and greatly concerning in a National Curriculum.

The second point that can be drawn from it is that the history curriculum in its current form is missing a crucial element:  a coherent theme.  The current National Curriculum purports to be a history of everything, at the cost of providing a continuous and coherent account of anything — not least, of Australia and its institutions.  "World history" is not something that can realistically be achieved over four years in most school settings, and certainly not something that a National Curriculum should attempt to prescribe.

At the present, the scattered and eclectic selection of depth studies available lacks cohesion and a common thread.  It is so excessively multicultural in that it consists of so many disconnected depth studies that it is impossible to determine what exactly students are supposed to draw from it, aside from so-called "historical skills" and abstract themes.  The curriculum would have made much more sense if it largely focused on a specific thread of history — ideally one which was most relevant to Australia.  The thread of history most relevant to Australia — in terms of its institutions and its culture — is that of the development of Western Civilisation and its forebears.  For the most part, this would be the history of Greece, Rome, western Christendom, and — in Australia's case — the British Empire.


The National Curriculum should be abolished, not amended

I oppose the establishment of a National Curriculum.

It is essentially an ideological exercise, and it is inherently dangerous in a liberal democracy that a government should be given the power to determine the ideology of school curricula across the entire country.

Having a National Curriculum means that school curricula are politicised.  Indeed, by definition, it is impossible to have a government-endorsed curriculum that is not politicised.  As such, it is not only difficult to justify having an Australian National Curriculum in the first place, but any National Curriculum that we do have is likely to be both contentious and unstable for as long as it continues to exist.

Different sides of Parliament are highly unlikely to agree upon an ideologically neutral curriculum.  On the contrary, it is highly likely that each side will accuse the other of politicising various academic disciplines — especially history, the most political of all disciplines — and that a review of the curriculum will be announced every time a new government comes into power to correct any perceived imbalance.

We have already seen this occur twice since 2006:  the first time, when the Rudd government scrapped the Howard government's Guide to Teaching Australian History;  the second just two months ago, when Christopher Pyne announced a review of the Labor curriculum.  A very similar pattern is currently occurring in the United Kingdom.  The trend is likely to continue here, making the National Curriculum greatly destabilising for the teachers and students involved.

On the basis of the above, the ideal situation would be to abolish the National Curriculum altogether and to introduce a competing curriculum model to allow for greater school autonomy and prevent curricula from becoming politicised.



BIBLIOGRAPHY

ACARA Australian Curriculum, Assessment and Reporting Authority. The Australian Curriculum v.6.0. Retrieved on 13 March 2014.

Addison, P., Albert, T., Bickham, C., Mellisas, S., Wood, J., Pearson History 7 Student Book (Pearson Australia:; Melbourne, 2011).

Carrodus, G., Delahy, T., Howitt, B., Smith, R., Oxford Big Ideas History 9 (Oxford University Press: Melbourne, 2012).

Darlington, R., Smithies, G., Wood, A., History Alive for the Australian Curriculum 9 (John Wiley & Sons Australia Ltd: Milton, 2012).

Greer, V., Mason, KJ., Mirams, S., Pagone, M., Young, C. Nelson Connect with History 10 (1st edition). (CENGAGE Learning Australia Pty Ltd: Melbourne, 2012).

Saldais, Maggy, Oxford Big Ideas History 7 (Oxford University Press: Melbourne, 2011).

Woollacott, A., Adcock, M., Cunneen, C., Mackinnon, A., McPherson, J., St. Julian, J., Skinner, R., Thomas, A., History for the Australian Curriculum (Cambridge University Press: Melbourne, 2012).



ENDNOTES

1. http://www.pyneonline.com.au/media/transcripts/review-of-national-curriculum

2. http://richardjwood.blogspot.com/2014/01/the-farce-of-ideologically-neutral.html

3. http://www.theguardian.com/world/2014/mar/10/national-curriculum-call-to-boost-western-judeo-christian-influence

Wednesday, February 15, 2012

Fair Work Act Review 2012

REFORM OF THE AUSTRALIAN WORKPLACE RELATIONS SYSTEM

  1. The scope to reform the workplace relations system is relatively unencumbered compared to previous decades.  Legal and constitutional impediments have receded.  The High Court in its 2006 decision upholding the legality of Work Choices confirmed that the Commonwealth was able to use the Constitution’s corporations power to regulate workplace relations.  This offers more direct and sweeping powers than were available by reliance on the conciliation and arbitration power.

  2. A list of reforms is presented.  The key tests to support the reforms were that each proposal would facilitate:
    1. workplace flexibility;
    2. job creation and security;  and
    3. investment in Australian ventures and jobs.

  3. The obvious objectives of a workplace relations system are to provide:
    1. real incomes growth;
    2. jobs growth;
    3. improved productivity;
    4. fair pay and conditions;
    5. easy access to jobs;
    6. encouragement to try innovative work practices;
    7. a safety net for more vulnerable workers;  and
    8. a credible system to resolve entrenched disputes.

  4. Unions have a legitimate role in workplace relations.  However, they have been given a privileged and powerful position under the fair work system.  It is estimated by the Australian Industry Group that the Fair Work Act 2009 (FW Act) contains 100 new union rights.  This expansion is unjustified when their representation in the workplace has declined so dramatically.

  5. It follows that some of the proposed reforms curb the excesses of union power.

  6. The deficiencies of the fair work system are numerous.  The main deficiencies are outlined in Attachment A.

  7. Many of the features of the fair work system are reminiscent of decades past.  A credible workplace relations system must be suited to contemporary conditions.  The reforms proposed in this paper are suited to these conditions.  The features of a modern workplace are outlined in Attachment B.

Agreements

  1. Choice of agreement type should be reintroduced.  The system should allow employers, employees and unions to choose an agreement type best suited to their circumstances.  The agreement types on offer would be:
    1. union collective;
    2. non-union collective;
    3. individual;
    4. union greenfield;  and
    5. non-union greenfield.

  2. Collective and greenfield agreements could be a multi-employer agreements in limited circumstances, for example to cover employers of a common franchise.

  3. All agreements would have to satisfy a no disadvantage test against the National Employment Standards.  An individual agreement would be subject to an additional no disadvantage test against a collective agreement that applied in the workplace to employees in the same category.

  4. The approval of agreements has become an elaborate bureaucratic process.  Approval should be the responsibility of the regulator, the Fair Work Ombudsman (FWO) and not the tribunal, Fair Work Australia (FWA).  The accessibility of FWO and quick turnaround would be fundamental requirements of the system.

Individual Flexibility Arrangements

  1. Individual flexibility arrangements (IFAs) were supposed to offer access to individually tailored workplace arrangements.  It is clear that they have failed;  take up is minimal.

  2. The procedures to enter an IFA are complex and cumbersome.  The model IFA clause for awards is highly restrictive in its scope.  Unions demand strict limits on the scope of IFA clauses in enterprise agreements.  It is common for the clauses to restrict IFA content and to require consultation with the union or other employees.  The ease of exiting an IFA engenders reluctance on both sides.

  3. Ideally, IFAs should be replaced by individual agreements.  In the event they are retained, substantial amendment is required if they are to attract any genuine interest.  Enterprise agreements should confirm access to an IFA absent the insertion of any restrictions on content or procedure.  An IFA is an agreement between the employer and employee.  Interference or oversight by a union or other employees is unwarranted.

  4. Similarly, the model clause used in many awards should be less restrictive.  A no disadvantage test against the award and National Employment Standards should continue to apply.

  5. The termination arrangements should be extended beyond the present 28 days’ notice period.  Termination with 6 months’ notice should apply.

  6. An IFA lapses with the approval of a new enterprise agreement that covers the employee.  An IFA should continue, notwithstanding the making of a new agreement, subject to the IFA continuing to meet the better off overall test.

  7. The maximum term of an IFA should equate with the maximum term of an enterprise agreement, four years.  Therefore, an IFA would apply for a period of up to four years that is agreed between the employer and the employee.

Bargaining and Agreement Making

  1. Bargaining and agreement making are now more complex and the unions have an enhanced role.  Employers are reluctant to pursue innovative agreements with employees.  Instead they tolerate what the system and unions dictate and adjust their business activities to suit.  It is not surprising productivity has stagnated.

  2. The wide definition of “permitted matters “for negotiation should be reduced.  A menu of prohibited matters should be established.  Unions are pursuing broad negotiating agendas that extend to controlling the running of the business in areas that are traditionally the responsibility of management.  This frequently results in protracted negotiations and disputes.  Prohibited content would include:
    1. restrictions on the engagement and use of contractors, casual and labour hire workers;
    2. encouraging or discouraging union membership;
    3. restrictions on the ability of a person to become a party to a particular type of agreement;
    4. right of entry;  and
    5. discriminatory terms.

  3. Australia is becoming accustomed to the emergence of protracted bargaining and lengthy industrial disputes.  We have seen this in the airline, car manufacturing, mining, public and food production sectors to name a few examples.  The trend is partly due to the unions having confidence to extend their claims beyond the traditional pay, conditions and entitlements improvements.  Unions are now adopting bargaining agendas that pursue rights over the business strategy and operations of the employer.  The reintroduction of prohibited content will alleviate some of these pressures.

  4. The fair work bargaining system is also at fault.  FWA could be empowered to create an initial period of protected action and to approve the type of action to be taken.  An extension of the period of protected action would require FWA approval.

  5. In a number of disputes the unions are frequently employing the tactic of withdrawing notified protected action at the last moment.  This means the employer’s business is disrupted while union members suffer no loss of pay.  Penalties should be imposed on the use of this tactic where the withdrawal is not linked to a settlement of the dispute.  The late withdrawal of notified industrial action would result in the deduction of pay for the employees involved.  The deduction amount would equal pay for the period of the notified action.

  6. Genuine choice of agreement type combined with improved bargaining rules should promote productivity improvement.  It is incongruous that union leaders boast about enterprise agreements delivering massive pay increases absent any commitment to productivity improvement.  The most glaring recent examples are the General Motors Holden agreement and the Victorian building industry pattern agreement.  Parties entering such agreements invite a reckoning that will involve business contraction and job losses.

  7. The best outcomes for a business and its employees are achieved when both sides have the capacity to entertain improvements that add value to the business and improve earnings and job security.  Inevitably, new work practices and improved efficiency are involved.  Many businesses and their employees in Australia understand they operate in a competitive environment and that the future is not guaranteed.  Genuine choice of agreement type and fairer bargaining are urgent reform needs.

Independent Contracting

  1. The gradual incursion of tribunal and union interference in the use of contractors and labour hire workers is damaging workplace flexibility and efficiency.  Many Australians prefer the freedom and opportunity independent contracting offers them.  Unions oppose independent contracting because it limits their influence in the workplace.

  2. The regulation of independent contracting and labour hire should be removed from the workplace relations system and transferred to commercial law.  This form of work is common across many sectors of Australian industry.  People who choose to be contractors know the risks and do not need the dead hand of union control to protect them.  A transfer of regulation to commercial law will reassure them that appropriate opportunities and regulation will apply to their endeavours.

  3. The unsuitability of workplace relations regulation would be reinforced by having interference with contracting decisions identified as prohibited content that could not be included in industrial agreements.

Regulation of Unions and Employer Associations

  1. Events during 2011 highlighted a lax system of union accountability and regulation.  This deficiency is particularly apparent in the management of finances.  Unions collect and spend $ millions of members fees.  They own property, employ large staffs, support political parties, campaign on a variety of public interest issues and engage actively in the media.

  2. The High Court’s 2006 decision strongly affirmed the Parliament’s right to use the corporations power to regulate the activities of trade unions and employer associations.

  3. Unions are registered and regulated pursuant to the Fair Work (Registered Organisations) Act 2009.  Corporations are regulated by ASIC.  The corporations’ law system is rigorous and highly effective.  Unions and employer associations should be regulated by ASIC with the same level of accountability as applies to corporations.  The ASIC coverage would apply to registration, financial management, conduct of officers, rules of the organisation and elections.  Disputes would be heard by the federal courts.

Right of Entry

  1. Union officials should have a right of entry to conduct legitimate business at a time and in a manner that does not interfere with the operation of a workplace.  The fair work system has significantly expanded the rights of entry.  The ALP policy in 2007 was to retain the right of entry provisions that applied under the Workplace Relations Act 1996.  This policy was not honoured.

  2. The right to enter to hold discussions with employees should only apply if the official’s union has members at the workplace.  The fair work system permits entry for discussions if a workplace contains employees eligible to be a member of the official’s union.

  3. The tests for granting a permit should be applied with rigour.  Similarly, notice of entry requirements should be strictly enforced.  Officials whose conduct contravenes the law would become ineligible for a permit.  Repeat offences would lead to penalties against a union and possibly withdrawal of entry rights from all its officials.

  4. The right of an employee to decline to meet with a union official who has gained entry should be clearly spelt out and protected.  Employers should be required to ensure this right is not infringed.

  5. Agreements should not be able to include provisions on right of entry.  Right of entry terms should be specified in the legislation and nowhere else.

Transfer of Business

  1. In our dynamic economy business structures change frequently.  Takeovers, mergers and outsourcing are common.  Regulations that allow these transactions to occur easily are important to a modern economy.  The fair work system provisions act as a potential disincentive to transfer business and have adverse consequences for job security.  They operate against the interests of both employers and employees.

  2. In a takeover or merger employees in the vacating business are more likely to be terminated.  If employees of the vacating business are retained then multiple agreements apply to the employees of the acquiring business.  This results in disharmony and administrative complexity.  Also, out-dated terms and conditions are preserved often to detriment of employees.

  3. The “character of business” test should be reinstituted.  The test requires two employers to have the same character before transfer of business implications arise.  Reasonably settled law had evolved around this test.  The current “similarity of work” approach should be removed.

General Protections

  1. ALP Governments display a natural inclination to add to the regulation of how Australians lead their lives and go about their business.  This inclination is nowhere more apparent than in workplace relations.

  2. The fair work system introduced a particularly pernicious concept of “general protections.” The general protections are an amalgam of the former, freedom of association, coercion, and unlawful termination of employment provisions with some additions.  In particular, the concepts of workplace rights and adverse action that breaches a workplace right have been introduced.  If an adverse action is alleged the reverse onus of proof applies to legal proceedings.

  3. Protections against abuse of freedom of association, coercion and unlawful termination have existed in previous legislation.  They have operated satisfactorily.  The new general protections, combined with expansive legal rulings, have the capacity to constrain and damage employer – employee relationships.  Already we are seeing the use of general protections displacing traditional unfair dismissal remedies.

  4. The general protections are potentially the most damaging aspect of the fair work system.  They reflect the zealous regulation associated with European labour laws.  Increased litigation about employment decisions and jurisprudence establishing a range of detailed workplace rights will be the result.

  5. The general protections chapter of the legislation should be removed and protections reflecting those in the Workplace Relations Act 1996 reintroduced.

  6. If this was to take time then immediate changes could be made.  For example:
    1. a workplace right not to include a discretionary benefit offered by an employer;
    2. the standard legal principle of the applicant proving that a contravention has occurred to apply.  The reverse onus of proof removed;
    3. claims relating to termination of employment to be lodged within 3 weeks of the termination;  and
    4. the sole or dominant reason to be taken into account in determining the reason for a particular action.  Decisions are emerging where very contorted logic is being applied in ascertaining the reasons for taking action.

Superannuation

  1. Superannuation legislation gives an employee the right to choose the superannuation fund in which they want their money invested.  Awards are required to include a clause specifying “default” superannuation funds.  Default funds come into play if an employee declines to make a fund choice.  Typically the award clause will list up to five funds.  The funds listed are with few exceptions industry superannuation funds.  The Productivity Commission is conducting an inquiry into the selection and assessment of default funds in awards.

  2. The investigation is overdue and I support it.  The process is riddled with potential conflicts of interest, appears to be anti-competitive and resembles a closed shop.

  3. The treatment of superannuation in enterprise agreements raises equally grave concerns.  Most agreements deny employees choice of superannuation fund.  Some agreements such as a Woolworths agreement state “choice of fund is not available.” The template CFMEU agreement in the building industry provides “no employee shall commence employment unless he/she is a registered worker in the C+BUS scheme.”

  4. Most employers and unions are reaching comfortable agreements that mandate payment of employees’ superannuation into one or two nominated industry funds.  This occurs despite most private sector workplaces having few, if any, employees who are union members.  The employers are denying their employees’ the right to choose;  a right that the superannuation legislation supports.

  5. Agreements should not be allowed to include terms that deny choice.  However, they should be permitted to nominate preferred funds while allowing an employee to choose an alternative that complies with the superannuation regulations.  The National Bank Enterprise Agreement 2011 provides a model clause offering employees choice of fund.

Demarcation Disputes

  1. Demarcation disputes are disputes between unions involving a contest as to which organisation has the right to represent workers.  Employers are expressing concern that demarcation disputes are increasing under the fair work system.  Such disputes are damaging and difficult.  An employer generally can do little to resolve them, yet their business can suffer significant dislocation.  Industrial action in support of a demarcation dispute is unlawful.

  2. The rights of entry for union officials to workplaces for the purpose of discussions with workers have been relaxed.  Modern awards apply to employees in an industry or occupation and do not have union respondents and do nothing to partition union representation.  These faults have engendered an atmosphere where in a number of industries contested rights are pursued with vigour with little regard for legislative constraints.

  3. The right of entry for discussion purposes should be returned to having members covered by an industrial instrument that applies to the workers at the workplace.

  4. Industrial action in support of a demarcation dispute is unlawful.  The core responsibilities of the FWO should include the investigation and prosecution of unlawful conduct associated with demarcation disputes.

Building and Construction Industry

  1. The building and construction industry plays a vital role in our economy and community.  The unions and some contractors have a history of showing contempt for the law and decent standards of conduct.

  2. I am hesitant to support potent intervention in an industry’s workplace affairs.  However, the workplace relations of the building and construction industry demands strong action.  The Building and Construction Industry Improvement Act 2005 should not be disturbed.  The ABCC should concentrate on its core business of enforcing workplace relations laws on building sites.  The National Code of Practice and associated guidelines should be designed and administered in a fashion that provides a compelling inducement for contractors to comply.

Appointments to Fair Work Australia

  1. The credibility of FWA is to some extent compromised by the controversies that surround the appointment of members.  The careers of new appointees are scrutinised and tallies of backgrounds regularly counted.  ALP governments appoint predominately union officials and union-friendly lawyers.  Coalition governments appoint predominately employer related personnel.

  2. A new system adapted from procedures associated with appointments to similar bodies overseas could be used.  Nominations to fill the FWA vacancies of Deputy President and Commissioner would be made on a rotating basis by the ALP and the Coalition, irrespective of who was in power.  The appointment of President would be made by the government after consulting the Opposition, the ACCI and the ACTU.

Compliance Advice

  1. The fair work system has intensified earlier trends by establishing a complex, prescriptive and legalistic regime.  Legal obligations in employing people can be difficult to understand.  Even large employers such as Spotless, Toys R Us and Hungry Jacks have fallen foul of the legislation.

  2. The advice of the regulator, the FWO, is therefore important in assisting employers, especially small employers, understand their obligations.  Small employers lack the financial resources to obtain considered legal advice.

  3. However, employers are unable to rely on the advice of the FWO in any legal proceedings alleging that they have not satisfied their employer obligations.  This is wrong.  A government that chooses to impose a complex system on the community has an obligation to provide accessible and expert advice about obligations.

  4. An employer who accurately describes their circumstances is entitled to receive written advice about their obligations.  Such written advice should be allowed as a defence in any subsequent legal proceedings.

Public Sector

  1. The public sector has a natural inclination to resist workplace relations reform.  All public sectors are susceptible to the one size fits all approach.  Central agencies for budget and personnel management are powerful.  Policies and guidelines are produced with bewildering regularity and scope.  Unions play on these characteristics and support with relish centralised policies and bargaining.

  2. Inflexible agreements, one size fits all criteria, elaborate protections against termination or discipline, and mediocrity promoted in preference to reward and incentive are features of most of the systems.  The result is a reluctance to seriously address work practice changes, efficiency and productivity.  Staffing levels have risen and there is evidence too many workers are engaged on mind numbing form filling and processing.

  3. Governments appear to endorse the centralised philosophy advanced by unions and their own bureaucrats.  Worse they appear to accept that public sector workers are a unique species that require protections not available to employees in the private sector.

  4. Government budgets are coming under increasing pressure.  The call for services and infrastructure is not abating while revenue is not keeping pace.  Reforms to improve efficiency and productivity are necessary.  A key reform to achieve this is to allow individual agencies to bargain and reach agreements with minimal interference from central agencies.  The tests for the approval of multi-agency agreements in the public sector should be strengthened to discourage their use.

Conclusion

  1. The reforms that I propose take account of the modern workplace features.  It is fundamental that the country needs a workplace relations system suited to the present and the future.

  2. So much of our workplace relations culture remains tied to the past.  A culture characterised by “one size fits all”, that change involves threats rather than opportunities, and that performance incentive, reward for effort and merit are exploitative still flourishes amongst unions, languid employers and stultifying tribunals.

  3. The harm caused by the fair work system is that it limits our growth opportunities.  It plays too hard to union dogma.  Investment in our future and securing jobs is put at risk.  The strength of our mining sector disguises the harm being caused in other industries.  This impact is becoming apparent to many involved in workplace decisions.

  4. The challenge is to introduce change so that the system is suited to the economy and labour market of 2012 and beyond.  A failure to introduce fundamental change means the applause of unions will ring hollow as investment and jobs are lost in a modern Australia.



ATTACHMENT A

THE FAIR WORK SYSTEM – A FAILURE ON MANY FRONTS

  1. The Fair Work Act 2009 (FW Act) was heralded as a rebalancing of Australia’s workplace relations.

  2. The Government claimed it would promote productivity and provide fair laws that businesses would find flexible.

  3. The fair work system has failed to live up to its promise.  Productivity is stagnant, employer – employee engagement is in retreat, and outcomes that enhance flexibility are rare.  Unions have acquired a privileged position and their leaders display a return to militancy.  Industrial unrest has increased.

  4. Fundamentally, the fair work system is unsuited to modern workplaces.  It seeks to regulate workplaces in the style of the 1970s.  It represents a threat to future growth in jobs and investment.

  5. This paper highlights the key deficiencies of the fair work system.  Some are readily apparent.  Others are more disguised and only recognised as time brings more of the system’s provisions into play.

Individual Flexibility Arrangements

  1. Individual flexibility arrangements (IFAs) introduced a new element into workplace agreement making.  They were intended to give employers a capacity to develop innovative employment arrangements with individual employees.  The IFA initiative was used to allay the concerns of many employers and employees about individual statutory agreements, Australian Workplace Agreements, being removed from the system.

  2. IFAs have proved to be a glaring failure.  The take up of IFAs is very limited.

  3. Detailed and onerous conditions apply to their use.  They cannot be offered as a term of engagement.  An IFA can be terminated with a maximum of 28 days’ notice.  An IFA lapses with the making of a new collective enterprise agreement or modern award.

  4. The fair work reforms were presented as a return to collectivism.  The unions embraced this approach as it affords them considerable privileges.  Individual arrangements undermine their influence and as such are strongly opposed.  A key position adopted by most unions in bargaining for collective enterprise agreements is that the clause allowing access to IFAs must be highly restrictive.  Some clauses go as far as giving the union or employees a veto right over any IFA that an employer and employee may wish to enter.

  5. In contrast the FW Act allows an IFA to cover and therefore vary any term in a collective agreement.

A Multi Layered and Complex System

  1. Australia’s workplace relations system has evolved into a distinctly complex model.

  2. Our system now incorporates four intricate layers:
    • national employment standards;
    • enterprise agreements;
    • awards;  and
    • minimum wage orders.

  3. In addition there is interaction and overlap between the layers.

  4. Awards, curiously called modern awards, represent a re-enlivening of highly prescriptive industry and occupational regulation.  They are a uniquely Australian feature of the workplace relations system.  In most OECD economies the design of workplace relations reflects agreements or contracts supplemented by legislated national standards.

  5. The implications of the complexity for small business are dire.  Over 700,000 small businesses employ 4.7 million Australians.  The previous gains in small employer – employee relationships are now jeopardised.  The added complexity of the system, its emphasis on collectivism and more aggressive compliance systems forces many small businesses to fall back onto the award.  This means workplace innovation has diminished and for many employees remuneration and conditions entitlements are below potential.

  6. Large employers also complain of the complexity of the system and the difficulty of winning a commitment from unions to work practice change and productivity improvements.

Greenfields Agreements Only Available With a Union

  1. Greenfields agreements apply to new ventures where employees have not been engaged.  They feature in many areas of the economy, particularly in construction and mining.

  2. The FW Act prescribes that an employer must negotiate a greenfields agreement with a union.  This is a departure from other agreements which are negotiated with employees.

  3. Earlier legislation provided an employer the capacity to establish proposed terms and conditions for employees to commence work.  Union involvement was not mandated, although union agreements could be negotiated once the enterprise commenced operations.

  4. The time involved in negotiating an agreement with a union during the sensitive start-up phase of a venture can jeopardise the project.  Investors are often reluctant to commit while union negotiations are continuing.  Unions also exhibit a tendency to exploit the vulnerability of an employer at this stage of an enterprise and demand excessive pay and conditions standards.

The Tribunal Has an Enhanced Role

  1. Workplace relations that endure are those developed between an employer and employees.  Unions, employer associations, industrial tribunals and regulators can influence workplace outcomes.  A workplace where these outside bodies have a continuing influence will have a limited future.  As Nobel Prize winner Paul Samuelson observed “unions determine how industries in decline are accelerated towards their extinction.”

  2. A workplace relations system works best where the role of the tribunal is held in reserve or is seen as a light touch.  The focus of the tribunal should be on assisting the parties to resolve any difficulties that arise in the negotiation or implementation of agreements.

  3. The fair work system is said to encourage collective bargaining.  Instead, it expands the role of the tribunal to be an active influence in the affairs of many workplaces.  Fair Work Australia (FWA) vets and approves agreements.  It can review bargaining practices and issue binding orders on how bargaining is to be conducted.  It can arbitrate on the pay and conditions to apply to groups of so called low paid employees.  It can suspend or terminate bargaining and impose an arbitrated outcome on the disputants.  It oversees the finances and the conduct of unions and employer associations.

  4. This amounts to an active role with high transaction costs for those caught in the system.  In addition, parties dissatisfied with the role or rulings of the tribunal have recourse to the Federal Court.

  5. The trend that had emerged from the early 1990s of reducing tribunal and court interference in Australian workplace relations has been reversed with a vengeance.  Inflexible regulation will inevitably destroy job opportunities and compromise the capacity of Australian firms to compete and grow.

Bargaining Rules Transform Agreement Making into an Adversarial Encounter

  1. The FW Act introduced into Australia an American concept of good faith bargaining.  Australia now has a highly adversarial system of agreement making.  It represents a compelling example of a big government, big union and big business model imposed on all workplaces.  It has all the hallmarks of becoming a very damaging innovation.

  2. The shortcomings of the system are manifest.  The more obvious are identified below:
    1. the range of matters that can bargained has been expanded.  Unions frequently press claims to usurp management prerogatives that previously could not be bargained.  The bargaining agenda now includes more about rights with less focus on entitlements;
    2. unions have a guaranteed seat at the bargaining table if they have the right to cover any employees of the employer.  They may not have any paid up members in the workplace and the workers may not want them involved;
    3. the bargaining procedures are numerous and complex.  Small employers are choosing not to engage in the process;
    4. unions are more inclined to pursue protracted negotiations.  Union leaders are more confident that industrial bans and strikes will wear down employers;
    5. employers have less capacity to engage with employees not committed to a union or to taking industrial action;
    6. an employer’s response to damaging bans has to meet a proportionate test.  Employer access to the “no work as directed no pay” response is essentially unavailable.  Lockouts and shutdowns are more common.  Innocent employees unnecessarily suffer;
    7. work practice change and productivity improvements are proving almost impossible to win through bargaining.  Where they have been won it is invariably not immediate change but an undertaking to introduce future improvement;
    8. union leaders have responded to their more dominant role by becoming militant.  An employer with the tenacity to reject a union’s claims is likely to encounter fierce and often public repudiation their position.  This is typically followed with threats of industrial action and a campaign to undermine the public standing of an employer;
    9. unions have been afforded the capacity to take industrial action first and bargain later;  and
    10. industrial disputation and disruption are increasing.  The economic cost of the disputation is growing and Australia’s reputation as a place to invest is being damaged.

Right of Entry

  1. The FW Act was introduced on the pretext that right of entry (RoE) rules would not be altered.  This is not the case.  Changes have been made and a more relaxed RoE system applies.

  2. The right to enter a workplace to hold discussions with employees is linked to a union’s eligibility to cover employees.  Previously it was based on the union being covered by an agreement or award applying at the worksite.

  3. RoE clauses are now permitted in enterprise agreements.  It is not uncommon for agreements to confer additional entry rights on unions.  Clauses in construction agreements allow officials to enter without a valid permit, without notice and at times other than meal breaks.

  4. This results in the RoE system breaking down.  Mining projects in Western Australia report hundreds of entry requests over a few months.

  5. The legislation presents a system based on tightly approved permits, clear notice of entry requirements, on site conduct that does not disturb operations, protection of the rights of employees who do not want to meet a union official and sanctions for abuse of the system.  In reality the system is infringed almost daily.  In many industries unions adopt the practice of entering without asserting the right upon which the entry is justified.

The Content of Enterprise Agreements

  1. A distinctive feature of the fair work system is its embrace of collective agreement making.  The support for collectivism is detrimental.  It denies individual initiative and curbs innovation and engagement at the workplace level.  It rests on the premise that most workers are incapable of deciding what is good for them.  A one size fits all mediocrity is favoured over incentive and reward for performance.

  2. At the same time the range of issues that can be introduced into bargaining is considerably expanded.  The unions are using this to extend their inclination to constrain innovation into areas traditionally the preserve of those running a business.  The system of determining what can and cannot be included in agreements is complex and confusing.  Similarly, the repercussions for including the wrong material in an agreement is not readily understood by many involved in bargaining.

  3. An enterprise agreement is about permitted matters.  Permitted matters are:
    1. terms pertaining to the relationship between an employer and employees covered by the agreement;
    2. terms pertaining to the relationship between an employer and unions covered by the agreement;
    3. deductions of wages authorised by the employee;  and
    4. how the agreement operates.

  4. An enterprise agreement must contain the following:
    1. a nominal expiry date;
    2. a dispute settlement procedure;
    3. a flexibility term that allows IFAs;  and
    4. a consultation term.

  5. An enterprise agreement cannot contain unlawful terms.  In addition, an enterprise agreement must not contain a term that excludes a National Employment Standard entitlement, modifies a National Employment Standard entitlement to an employee’s detriment, or is a designated outworker term.  FWA cannot approve an enterprise agreement that contains any such terms.

  6. An unlawful term is a term that is:
    1. a discriminatory term;
    2. an objectionable term –a term requiring or permitting a contravention of the general protections provisions of the Fair Work Act or the payment of a bargaining services fee.  The general protections provisions are an amalgam of the former freedom of association, coercion and unlawful termination of employment provisions, but with more added in.  The provisions are broader in both application and the type of conduct which is prohibited than what existed under the Workplace Relations Act 1996.  In particular a concept of ‘workplace rights’ which is defined very broadly is introduced;
    3. confers an entitlement or remedy in relation to an unfair dismissal that occurs before the end of the minimum employment period;
    4. modifies access to, or the application of, unfair dismissal provisions in a detrimental way;
    5. is inconsistent with industrial action provisions;
    6. provides an entitlement to right of entry for a purpose covered by the RoE provisions in the FW Act that is different to the entitlement under the FW Act;  and
    7. allows right of entry under state OHS laws different to RoE provisions of the FW Act.

  7. In summary, at approval stage, FWA must be satisfied that an enterprise agreement does not contain unlawful terms, designated outworker terms or terms which exclude or detrimentally modify NES entitlements before it can approve the enterprise agreement.  However, FWA is not required to consider whether an enterprise agreement contains non-permitted terms at approval stage.  Therefore an enterprise agreement which contains non-permitted terms can be approved.  Those terms will be of no effect – and it will therefore be up to the employer to know what terms are permitted and what are not permitted.  The underlying purpose of the very confusing scheme is to ensure that an enterprise agreement that has been approved but which is later found to contain a term that is of no effect is not rendered invalid and can continue to operate.

Independent Contracting and Labour Hire

  1. Independent contracting and labour hire are forms of employment chosen by many Australians.  It affords them flexibility in the type of endeavour they pursue and how they go about it.  They have a capacity to balance work and family pressures more on their own terms.  They enjoy independence and the chance to run their own business.  They believe that by using their skills, initiative and knowledge that can earn a good living.

  2. Unions do not embrace personal initiative and separation from the traditional employment relationship.  The power and influence of unions is undermined.  Most unions are hostile to independent contracting and labour hire.  The ACTU is orchestrating a campaign around the notion of insecure employment as a pretence for limiting access to these forms of endeavour.

  3. The fair work system enables unions to demand enterprise agreements that severely limit the use of independent contracting.  For example agreements often contain the following limiting terms:
    1. employers to consult unions and employees 14 days before engaging contractors;
    2. the union to be informed of
      • the name of the contractor/labour hire firm;
      • the type of work to given to contractors to be identified;
      • the number of contractors to be engaged;
      • the duration of the engagement;
    3. contractors to be paid wages no less favourable than ongoing employees;
    4. no ongoing employee can be made redundant while contractors are engaged.

The Oversight and Regulation of Unions

  1. The conduct and affairs of unions and employer associations are regulated by the Fair Work (Registered Organisations) Act 2009.  The Act codifies obligations regarding registration, amalgamation, rules of the organisation, membership, elections, records and accounts and conduct of officers.

  2. Events that have come to light during the past year raise questions about how effective this regulation has been.  Most unions are large organisations.  They collect $ millions in membership fees.  They are generally designed as federal bodies with branch structures, are active in the media, lobby political parties, have influence over the ALP, are engaged in community interest campaigns and employ large staff.

  3. Returns are often not lodged on time.  The latest FWA Annual Report suggests new rules have added to these problems.  Disputes about the conduct of elections and control of unions occur with some regularity.

  4. A regulatory scheme that is not robust nor effectively administered involves the risk of fostering an “above the law” attitude amongst officials.

Transfer of Business

  1. In a dynamic economy business structures change frequently.  Take overs, mergers and outsourcing are common.  Regulations that allow these transactions to occur easily are important.

  2. The fair work system provisions act as a potential disincentive to transfer business and have adverse consequences for job security.  They operate against the interests of both employers and employees.

  3. A new “similarity of work” concept has been introduced.  This has disturbed previous concepts and accepted jurisprudence.  The rules specifically apply to the outsourcing and insourcing of work, even if assets do not transfer.

  4. The rules focus on transferring employees and only apply if there is a transferring employee.  An employer can avoid the obligations by not employing any employees from the transferring business.  In a takeover or merger employees in the transferring business are more likely to be terminated.  If employees of the vacating business are retained then multiple agreements will apply in the new business.  This results in disharmony and administrative complexity.  Also, out-dated terms and conditions are preserved often to detriment of employees.



ATTACHMENT B

THE WORKPLACE OF 2012

  1. The Fair Work Act 2009 is often characterised as introducing laws that are reminiscent of the 1970s.

  2. At the time when Australia’s workplace relations institutions were forged, agriculture and manufacturing were highly influential in framing workplace attitudes and expectations.  The workplace relations culture of this period prevailed through to the 1970s.

  3. It might be attractive for some in the ALP and the union movement to hark back to past glory days of the 1970s.  Days when we had a command economy, centralised wage determination, strong union membership, a managed currency, protection of and rent seeking by key industries and a wide spread 9-5 workplace culture.

  4. Those 1970s features however bear little resemblance to the Australian workplace and economy of 2012.

No Job Guarantees

  1. The most striking change is that we exist in a highly competitive world.  Nothing can be taken for granted.  No job has a guaranteed future.  Business and commerce is changing rapidly as technology impacts on all aspects of life and work.  New products and services emerge quickly.  The international market place is being transformed as emerging economies mature and old economies stagnate.  Australian firms are employing and locating more jobs overseas.

  2. The predominant occupational categories in the workforce are white collar jobs in the services sector.  Many of these jobs are readily transferred between locations.  Others are impacted by technology.  Agriculture and manufacturing jobs as a proportion of the workforce have been in decline for decades.

Union Membership

  1. The membership of unions has declined.  Union members represent less than 14 per cent of the private sector workforce.  This is consistent with the experience of most OECD countries.  It is an anachronism then that the Australian workplace relations system affords unions such a central and privileged role.

Family and Work

  1. It is now a feature of many Australian families that both adults work and pursue careers as well as raising a family.  They have a different attitude to work and value flexibility to balance work and family demands.  Not everyone regards weekend and evening work as an imposition.  Some will find work at these times suit their lifestyle.

  2. In December 2010 an ABS survey of attitudes towards workforce participation and flexibility in Victoria was released.  It estimated that 42 per cent of workers from two parent families with children had requested changes to their work arrangements that involved more flexible hours or the ability to work from home.  A further 28 per cent of this cohort had sought to work fewer hours or to take leave.

Career Pathways

  1. The career is now seen as a more adaptable pathway.  Long service with a single employer has become the exception.  Young people in particular expect to work with a variety of different employers throughout their career.

  2. The workforce places higher importance on education and skills.  Workers with a higher education qualification jumped from 47 per cent to 57 per cent between 2001 and 2011.  Education and training will be continuous.  Time out for study, family or personal reasons will be accepted as normal.

Independence

  1. People value their independence and control over their own destiny.  Many relish the challenge and freedom of running their own business.  Independent contracting, labour hire and outsourcing are entrenched features of our economy.  Both the individuals and business benefit from the flexibility offered by these modes of work.

Part-time and Casuals

  1. Part-time and casual work are also playing a greater role in the Australian workforce.  This reflects a number of influences including the competitive pressures on business, the impact of greater workplace regulation and the mobility of younger workers.  The participation of women in the workforce has also increased markedly since the 1970s.

Individual Rights

  1. Individuals are more aware of their workplace rights and the capacity for them and their employer to devise mutually beneficial arrangements for work and reward.  The old “one size fits all” approach to managing a workplace no longer applies.  People in many aspects of life value the freedom to make their own life and financial choices.  It is incongruous for them to then come to the workplace and be dictated to by a constraining collective workplace culture.  Reward for effort and performance incentives are valued by many workers.

Older Workers

  1. The population and the workforce are ageing.  Workers aged 55 years and over comprised 16 per cent of the labour force in 2010 compared to 10 per cent in 1980.  The labour force participation rate for women 55 years and over rose from 11 per cent in 1980 to 27 per cent in 2010.

  2. Early retirement was an ambition in earlier decades, but is now not as valued.  People are encouraged to remain in active employment longer.  Technology affords many older workers the opportunity to adopt work patterns that suit their lifestyle.  Australian workers now recognise the importance of superannuation and wealth creation.  It is accepted that a vibrant and competitive private sector is vital to the future provision of wealth and prosperity in Australia.

Technology

  1. Rapid technological change has transformed the workplace and workplace relations.  The traditional lines of authority, the methods of communicating in the workplace and the access to knowledge have been adapted to suit modern technology.  Many businesses use the internet and social media to interact with customers and staff.  A firm that relies on out-dated technology and systems will find it difficult to retain staff.

Conclusion

  1. These are some of the key features of the modern workplace.

  2. The reforms that I proposes take account of the modern workplace features.  It is fundamental that the country needs a workplace relations system suited to the present and the future.

  3. So much of our workplace relations culture remains tied to the past.  A culture characterised by “one size fits all”, that change involves threats rather than opportunities, and that performance incentive, reward for effort and merit are exploitative still flourishes amongst unions, languid employers and stultifying tribunals.

  4. The harm caused by the fair work system is that it limits our growth opportunities.  It plays too hard to union dogma.  Investment in our future and securing jobs is put at risk.  The strength of our mining sector disguises the harm being caused in other industries.  This impact is becoming apparent to many involved in workplace decisions.

    The challenge is to introduce change so that the system is suited to the economy and labour market of 2012 and beyond.  A failure to introduce fundamental change means the applause of unions will ring hollow as investment and jobs are lost in modern Australia.