Youth Jobs PaTH Program Needs New Legislation, ACTU Claims

The Youth Jobs PaTH program, designed to help young people transition into work, could require new legislation before it could be brought into action, according to legal advice sought by the Australian Council of Trade Unions.

According to the peak union body, the program – which was unveiled by the government when they handed down the budget on 3 May and is a centrepiece of Malcolm Turnbull’s re-election platform – is “illegal” and violates the Fair Work Act.

They claimed the government would need to legalise a second-class category of $4-per-hour workers or pay workers in the program at the minimum wage.

It follows complaints from the unions that PaTH interns working 25 hours a week would receive $364 a week, which is $68 below minimum wage and represents just a $4-an-hour improvement on the dole.

The advice from the firm Maurice Blackburn marks the first argument that it is technically illegal.

Kamal Farouque, principal in Maurice Blackburn’s Employment practice, said there were a number of questions surrounding the program which did not seem to have been “well thought through”.

“Basically I think there’s a very real prospect that these arrangements could be regarded as an employment arrangement and in which case, if it was an employment arrangement, then in the ordinary course, provisions of the Fair Work Act would apply to it and consequently workers engaging in this internship program would be entitled to earn the minimum rates and conditions in the Fair Work Act,” Farouque told Pro Bono Australia News.

“So that is the significant aspect of this announcement which I think creates real questions as to whether or not it is in accordance to the law.

“There are a few lines about it in the budget papers, it has been drip fed kind of media interviews here and there with ministers, and really it doesn’t seem to have been something that has been well thought through or the full parametres of what is proposed haven’t been announced. We are having to try and analyse what is happening based on this drip feed and at this stage one could describe it as a bit of an budget thought bubble.”

Faouque said if the government wished to exclude the scheme from the Fair Work Act it would need to pass new legislation in parliament.

“There are exceptions under the Fair Work Act for things which are characterised as vocational placements and those exceptions are quite narrow, and have been observed by the courts to be quite narrow. This scheme essentially involves multiple stages and in terms of the work stage, which essentially involves a person performing work, receiving remuneration subject to the direction and control of the person who is the employer so to speak, those are indicia or characteristics which are very consistent with an employment relationship which would then bring into play the operation of the Fair Work Act,” he said.

“The government might seek to create other legislative exemptions, but if it was to legislate to exclude this scheme from the provisions of the Fair Work Act then they would obviously have to get that legislation through the parliament, that is really the fundamental issue.

“It is a big thing to institute arrangements where people are essentially being paid such negligible remuneration, $4 an hour, which is well below the minimum wage standard in awards, people aren’t presumably going to be under the government’s idea, entitled to the minimum conditions under the Fair Work Act for the duration of the purported internship. That is deeply, in my view, problematic, when you are endeavouring, or presumably they are planning to try and carve out this scheme from the operation of the basic legislative standards relating to work.

“There is a real argument to say this is an employment relationship and if it is an employment relationship then the elements of what the government has announced such as four bucks an hour etc, then that would be unlawful.”

ACTU President Ged Kearney claims the program would allow big companies to replace real jobs with $4-an-hour workers.

“For a government to change the law to allow big companies to exploit workers on $4 an hour, while stripping them of protections and entitlements under the Fair Work Act is one of the heaviest betrayals of Australian workers since WorkChoices,” Kearney said.

“Not since the 1990s has it been legal to pay workers as little as $4 per hour. This policy takes employment standards in this country back almost 30 years and has the potential to drag down wages and conditions for all workers – not just those in lower paid jobs.

“The government’s plan is either very badly designed and underfunded, or very well designed to exploit Australian workers and strip them of their legal rights and pay.

“The real path to secure well paid jobs for young people starts with proper investments in early childhood education, schools, TAFE, universities, genuine traineeships and apprenticeships.”

Kearney is calling on all election candidates to block any changes to legislation should they win on 2 July.