Research Paper no. 13 2008–09
Guide to the federal wage safety net
Steve
O'Neill
Economics Section
13 October 2008
Contents
Executive Summary
- The possibility of recurring national political contest over
the composition and content of the legislated wage and employment
safety net may come to be seen as the legacy of the Coalition
Government s Work Choices amendments to the Workplace Relations
Act 1996. For over 80 years, federal workplace relations laws
were based primarily on the Constitution s conciliation and
arbitration power, enabling an independent industrial tribunal to
make and vary awards through the resolution of industrial
disputes.
- This approach changed under the Keating Government when certain
employee entitlements were provided nationally relying on other
constitutional powers. The shift to Parliament determining safety
net standards was completed under the Howard Government s Work
Choices amendments relying on constitutional powers other than the
conciliation and arbitration power, but relying mainly on the
Constitution s corporations power. Parliament could thus vary the
standard working week from 38 hours and it could directly set the
national minimum wage.
- The scope of the safety net is proposed to be enhanced, evident
in the Labor Government s National Employment Standards (NES) which
propose ten minimum conditions (in effect eleven standards
including a minimum wage for award-free workers). This is in
contrast to the Coalition Government s five conditions under the
Australian Fair Pay and Conditions Standard (AFPCS), and certain
other minimum entitlements.
- Employees who may have previously been employed as award-free
workers are likely to have been advantaged by the advent of the
AFPCS in 2006. For award workers, an improvement to personal and
compassionate leave is the result of superior AFPCS terms
displacing similar award provisions. Some award workers also
benefit from shorter working hours under the AFPCS.
- However, limitations of the safety net may arise when a
business fails and where employees work under employment contracts
and under award-free arrangements that are silent on redundancy.
The Australian Industrial Relation Commission (AIRC) does not
appear to have the necessary award-making function to resolve these
types of matters. Although, there may be other options available to
resolve a redundancy situation. Labor s proposed ten-point safety
net redresses the question, but the timing of the reforms is likely
to leave a hiatus until 2010.
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Introduction
The enactment of the Workplace Relations Amendment (Work
Choices) Act 2005 (Work Choices) significantly altered the
framework of federal and state awards which previously constituted
the award safety net, in part, supplementing these through the
introduction of the Australian Fair Pay and Conditions Standard
(AFPCS).[1]
Work Choices amended the Workplace Relations Act 1996
(hereon the WR Act, which includes the Work Choices amendments) and
took effect, in the main, from 27 March 2006.
This Research Paper sets out some of the key features associated
with the safety net/s for wages and employment conditions. It
outlines:
- the widened coverage of the federal system brought about by
bringing in employers and employees formerly falling under state
jurisdictions
- the role of specific parts of the federal safety net including:
the AFPCS, Australian Pay and Classification Scales (APCS), the No
Disadvantage Test (NDT), and allowable, preserved and non-allowable
matters in federal awards,[2] and
- a case study about a hypothetical application of the safety net
to employees of an award-free employer to indicate how the
legislated safety net works in practice.
The case study assumes the group of companies formerly known as
One.Tel (which was placed in liquidation in 2001) continued to
trade into 2008 before being placed in liquidation. The case study
uses a question and answer format to analyse what would happen if
One.Tel was operating in 2008. For example, how would the federal
safety net apply to such a business group which employed staff
under common law employment contracts? This is a pertinent question
in light of the estimate that about 1.5 million employees work
under employment contracts.[3] In the case of employer insolvency, what role could the
Australian Industrial Relations Commission (AIRC) play in 2008 in
respect of making a safety net award for redundancy pay, as it did
in 2001 for One.Tel employees? Could these staff access the General
Employee Entitlements and Redundancy Scheme (GEERS), operated by
the federal government in the event of employer insolvency?
The Research Paper also considers the federal Labor Government s
policy position on these issues in light of the Workplace
Relations Amendment (Transition to Forward with Fairness) Act
2008 (the Transitional Act), which amended the WR
Act. This Act terminated the making of new Australian Workplace
Agreements (AWAs), replacing these with an alternative in the form
of Individual Transitional Employment Arrangements (ITEAs). It also
re-introduced an NDT for the assessment of individual and
collective workplace agreements against award provisions. It
replaced the Work Choices award simplification/rationalisation with
an award modernisation process which will, inter alia, formally
incorporate the transferred state awards into the federal award
system (due to commence from 2010).
The Research Paper includes three appendices: Appendix 1
provides a glossary; Appendix 2 provides a comparison (in table
form) of pre and post Work Choices safety nets and award matters;
and Appendix 3 provides a table on federal safety net wage
movements since 1991, including summarised submissions of state and
federal governments and key employer and union groups.
For the assistance of the reader, the following table attempts
to summarise the changes from arbitrated awards (constituting a
safety net of wages and employment conditions) to the current
federal legislated safety net. However, it is important to note,
this paper is primarily concerned with the system from 2006
onwards.
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To 1991
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Federal (and state) awards constitute a wage and
employment conditions safety net. Federal awards are determined by
a tribunal (AIRC) exercising the authority conferred on it by the
Industrial Relations Act 1988 which in turn derived its
constitutional authority, mainly, from the conciliation and
arbitration power of the Constitution (s.51 (xxxv)). As registered
organisations under the Act, unions and employer associations can
notify industrial disputes (created by serving logs of claims).
Disputes can be resolved through making or varying an award. Major
improvements occur through Test Case decisions (e.g. introducing
unpaid parental leave, superannuation and termination of employment
provisions to awards) or, in respect of wage increases, through
National Wage Cases. Federal (and state) tribunals are independent
from the government of the day. Federal and state award streams are
reasonably distinct.
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1993
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The Industrial Relations Act is amended to introduce certain
national workforce standards such as termination of employment
remedies and unpaid parental leave (both legislated to give effect
to international treaties). Bargaining between the unions
and an employer is given priority over awards, but non-union
agreements are authorised (using the Constitution s corporations
power, s.51 (xx)). The AIRC approves all agreements according to
whether they meet the terms of a relevant award (via an No
Disadvantage Test, NDT). National Wage Cases are replaced by Safety
Net Reviews of awards primarily for those employees who do not have
the power to bargain above the relevant award. The concept of
protected industrial action is introduced for the purposes of
bargaining.
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1996
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Labor loses the March 1996 federal election. The Coalition
Government replaces the Industrial Relations Act with the
Workplace Relations Act 1996. It reduces the content of
awards to 20 allowable matters. The independence of the AIRC is
retained in resolving industrial disputes, but an individual
agreement-making stream in the form of AWAs made via the
corporations power and approved by the Employment Advocate reduces
the AIRC s influence over workplaces. The Act retains protected
industrial action. It increases reliance on the Constitution s
corporations power, e.g. agreement-making, unfair dismissal and
freedom of association and non-association are based, in the main,
on this power. Victoria transfers the bulk of its industrial system
to the Commonwealth.
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2005
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The Workplace Relations Act is amended by Work Choices . All of
its key provisions such as awards, dismissal, right of entry,
freedom of association, industrial action etc., are based on the
Constitution s corporations power (and certain other powers noted
below). State awards and agreements which include corporations as
employers are transferred to the federal jurisdiction. The AIRC is
given no authority to resolve industrial disputes through the
making of new awards. Primacy is given to agreements made between
employers and employees. These changes are designed to diminish the
previous roles given to uninvited third parties (unions,
tribunals/courts and employer associations). A legislated safety
net (the Fair Pay Standard) covers parental leave, wages including
a minimum wage (set by a Fair Pay Commission), annual leave,
standard hours and personal leave for those who cannot make
agreements superior to the safety net. Award content is to be
reduced. Agreements with non-award workers made under Work Choices
need only meet the legislated standard to be filed/take effect and
the previous NDT is jettisoned.
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2007/08
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A stronger agreement approval test with third party approval
process by the Workplace Authority (replacing the Employment
Advocate) is introduced by the Coalition Government which, six
months later, loses the November 2007 federal election. An incoming
Labor Government reintroduces an award-based NDT to approve
workplace agreements. The ability to make new AWAs is terminated,
but ITEAs are introduced in their place. A new legislated safety
net for non-award workers is proposed to take effect from 2010. It
will tie in with a modern award system.
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To summarise these changes, whereas in 1990 a federal tribunal
independent from the government of the day set wages and major
employment conditions via an award system, by 2008 direction over
many of these functions has been assumed by the parliament. The
legislative scheme continues to give preference to agreements made
in the workplace with an award safety net acting as a fall back for
low paid workers who might be faced with agreements set at a low
standard (but for the relevant award). A narrower legislated safety
net assists often higher paid, award-free employees to negotiate
contracts.
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A broad definition of an employment safety net of wages and
conditions might include a number of Work Choices provisions and
instruments, such as pre-reform federal awards, transitional
federal awards, state awards now incorporated within the federal
jurisdiction, the AFPCS, and certain entitlements such as dismissal
remedies (as well as current state awards, for example, applying to
state public services or to non-incorporated entities in the
private sector). The WR Act allows state laws to operate which deal
with the following:
- anti-discrimination and equal employment opportunity
- superannuation (including the Superannuation Guarantee
legislation)
- workers compensation
- occupational health and safety
- matters relating to outworkers
- child labour
- long service leave, and
- other applicable laws.[4]
It might be reasonable to include in a definition of the broad
safety net, the General Employee Entitlements and Redundancy Scheme
(GEERS).[5] This
non-legislated scheme is into its eighth year of operation and
meets certain accrued employee entitlements in the event of
employer insolvency. The broad safety net might also include
transmission of business provisions which attempt to ensure
employee agreements and entitlement accrue to a purchasing employer
in the sale of a business.[6]
However, in the context of the narrower federal award safety
net, the Industrial Relations Reform Act 1993 introduced
the concept of awards acting as a safety net of minimum wages and
conditions of employment underpinning direct bargaining with this
safety net being designed to protect the wages of the low paid
.[7] In an
environment where enterprise agreements were to set pay and
conditions of employment tailored to the circumstances of
businesses and their employees, awards were retained specifically
to assist the low paid, a point noted by the AIRC in its 1994
Safety Net Review:
The award system provides a safety net of wages
and conditions which underpins enterprise bargaining and protects
employees who may be unable to reach an enterprise agreement while
maintaining an incentive to bargain for such an agreement.[8]
The current federal award system comprises all pre-Work Choices
federal awards extant prior to 27 March 2006. Federal awards are
referred to as pre-reform or transitional (discussed
below).[9] The
federal award system includes those state awards (in New South
Wales, Queensland, Tasmania, South Australia and Western Australia)
where the relevant employers fall under subsection 6(1) of the WR
Act and can be defined as federal employers.[10] State awards which federal system
employers are party to, now form part of the federal system and are
referred to as Notional Agreements Preserving State Awards
(NAPSAs).[11]
NAPSAs have been incorporated into the federal system under
transitional arrangements up to 31 December 2009. Thereafter
it is likely that NAPSAs will integrate within the federal award
system. State-based agreements to which the employer can be
considered as a federal employer are also part of the federal
jurisdiction. However, the federal award safety net interrelates
with the WR Act s legislated safety net and it is helpful to set
out why a legislated safety net was introduced.
The rationale for a legislated safety
net of wages and employment conditions (now referred to as the
AFPCS) was put to parliament by former Prime Minister John Howard
in May 2005, some six months before the Work Choices Bill was
introduced:
For the first time, the government will
introduce legislative minimum conditions to protect the rights of
Australian workers. These conditions will be for annual leave,
personal leave, parental leave and a maximum number of ordinary
working hours.
Currently workplace agreements are assessed
against a test which is unduly complex and which acts as a
hindrance to agreement making. For this reason, the government will
introduce a new Australian fair pay and conditions standard.
This standard will be based on minimum wages,
as set by the Australian Fair Pay Commission, and the guaranteed
minimum conditions of employment as set out in the legislation. No
worker can have his or her relevant award classification rate
lowered.
This new standard will be the test for all
agreements. It will make it easier for employers and their
employees to compare any agreement against this new safety net of
fair pay and conditions.[12]
The Work Choices scheme was novel (in the federal context) in so
far as it introduced legislatively determined minimum employment
standards via the AFPCS to large parts of the private sector, as Mr
Howard noted, to protect the rights of Australian workers. In doing
so, the move also introduced the legislative setting of employment
standards into the national political debate and contest.[13] Traditionally,
Australian employment standards have been set, by and large, by
federal and state industrial tribunals exercising either judicial
or quasi-judicial functions in making industrial awards, usually in
resolution of a dispute or claim brought by trade unions. The AFPCS
interacts with the award safety net, in the main, by displacing
award provisions which deal with the same matters covered by the
AFPCS (unless the award provisions provide superior entitlements to
employees).
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The AFPCS is found under Part 7 of the WR Act. The AFPCS s role
is to provide a safety net of employment standards in respect
of:
- minimum wages initially based on award rates, and casual
loadings.[14] These
are discussed below under the heading Australian Pay and
Classification Scales
- a 38 hour standard week. For some workers this represents a
reduction from higher hours prescribed in some awards for certain
industries[15]
- personal leave of 10 days per year (comprising sick, carers
leave and compassionate leave).[16] An employee is entitled to accrue 1/26 of the
number of nominal hours worked during a previous four-week period.
As well, for many workers an improvement to personal and
compassionate leave has been the result of slightly improved AFPCS
terms displacing award provisions (for example, compassionate leave
at 2 days per occasion).
- annual leave of four weeks per year or 1/13 of the nominal
hours worked by the employee during a previous four week
period.[17] Annual
leave is cumulative and will accrue on a pro rata basis. Continuous
shift workers are entitled to an extra week of leave under the
standard, and
- parental leave at 12 months unpaid leave which may be shared
between partners, and adoption leave.[18]
The AFPCS underpins all contracts of employment whether
formalised in workplace agreements or not, via a more favourable
test. In other words, the AFPCS provisions stand unless replaced by
more favourable provisions in a workplace agreement.[19] The AFPCS s role and
purpose has been described in the following terms:
First, it would provide guaranteed minimum
entitlements to wages and conditions for award- and agreement-free
employees.
Second, it would underpin workplace bargaining.
New agreements made under the Act must always provide entitlements
which are equal to or more favourable than the Standard. The
Standard would apply throughout the life of these agreements, and
will prevail over inconsistent agreement terms to the extent that
it is more favourable, in a particular respect.
Third, it would provide the basis for the "more
generous" comparison with preserved award terms.[20]
The five AFPCS provisions replace
pre-reform award provisions except where the award provision is
more generous and excepting hours of work award provisions. It
should also be noted that entitlements to meal breaks and time off
work for public holidays are provided as minimum entitlements.
Australian Pay and Classification Scales (APCS) are one element
of the AFPCS. APCS replace wage and classification rates formerly
expressed in industrial awards. The Australian Fair Pay Commission
(AFPC) was given a pre-eminent role in determining minimum wage
rates under Work Choices.[21] Labor s Transitional Act circumscribed the role of the
AFPC. It is empowered to set the federal minimum wage and vary pay
scales.[22] The
minimum wage applies to an adult in the absence of any applicable
APCS.
APCS are a set of provisions relating to pay and loadings for
employees and are administered by the AFPC.[23] APCS were determined to have come
into effect on the day Work Choices became operative (27 March
2006).[24] These
scales replace classification and wage provisions in pre-reform
awards. The WR Act s minimum wage and APCS provisions do not apply
to employees working under either state or federal individual or
collective agreements.[25] In the case of pre-reform awards, APCS are derived from
that award s classification and pay rates, referred to as Preserved
Australian Pay and Classification Scales.[26] Pay and classification scales
include:
- the federal minimum wage initially set at $12.50 per
hour[27]
- minimum rates of pay derived from award classifications and pay
rates
- minimum wages for employees with disabilities
- a minimum wage for piece workers
- casual loadings.
For casual employees, the AFPCS includes a minimum casual
loading of 20 per cent.[28] In the event that a casual employee is not covered by
an award classification, the adult casual wage is the federal
minimum wage, plus the default loading of 20 per cent for casual
employees.[29] The setting of award wages was
removed from the AIRC s jurisdiction under Work Choices and, in
effect, conferred on the AFPC. Under Labor s policy, wages will be
reintegrated into awards under award modernisation, with the new
awards coming into effect in 2010.
The most useful source of information on the current spread of
federal awards (and NAPSAs) is from a taskforce set up in 2005 to
prepare the grounds for the then award simplification and
rationalisation process (as prescribed by Work Choices). It advised
that as at 2 November 2005, there were 2251 federal awards and 1802
NAPSAs coming within the federal system.[30] It is in fact these instruments which
make up the federal award system in 2008.
Although the Work Choices amendments provided for a ministerial
request to the AIRC to trigger award simplification and
rationalisation by the AIRC, the required request was never made.
Had it been, award provisions deemed to be inferior to AFPCS
standards (such as personal leave) would have been removed from
awards, as well as non-allowable award matters. However, the
rationalisation of awards has been triggered under award
modernisation (discussed below) and the number of awards identified
in 2005 is likely to be dramatically reduced, but not until 2010.
In the meantime, the current federal award safety net is basically
that identified by the Award Review Taskforce in 2005.
While pre-reform federal awards and NAPSAs were approved or
determined by industrial tribunals according to their respective
award making principles, these documents appear to have become
instruments and expressions of federal legislation, and less the
property of the parties to the disputes which initially created the
instruments.[31]
The parameters of award content are determined strictly by the
legislation. NAPSAs are treated slightly differently. They can be
varied only to remove ambiguities and discriminatory terms and also
cannot contain prohibited content.[32] Also, as award simplification and
rationalisation was not carried out prior to the election of the
Labor Government, and as it is yet to have its award modernisation
process completed, the content of current awards is out of kilter
compared to what is prescribed for awards under the WR Act.
Pre-reform federal awards are those operating at the enactment
of the Work Choices amendments but under the constitutional powers
referred to earlier, meaning that the employers to the award are
federal system employers , such as trading corporations which
employ staff. Parallel award and AFPCS provisions in pre-reform
awards are to be resolved in favour of the AFPCS provision on the
criterion that any less generous pre-reform award terms are to be
replaced by four of the five AFPCS provisions.[33] These go to annual, carers and
parental forms of leave, although awards may continue to contain
terms addressing hours of work.[34]
A federal award in force immediately before Work Choices
commencement, in so far as it bound excluded employers , continues
in force as a transitional award for five years
to March 2011 (the transitional period) with the aim of allowing
employers to incorporate their businesses over this time and so be
covered by the federal system.[35] Transitional awards may deal with matters covered
by the AFPCS, and therefore include provisions on wage rates,
classifications, casual loadings, annual leave, personal/carers
leave and parental leave. There are approximately 1500 transitional
awards, which in effect mirror their pre-reform counterparts in
most but not all respects.[36]
Transitional employers are now effectively outside the scope of
the WR Act, for example, the unfair dismissal provisions of the WR
Act do not apply to them (or to their employees). They continue
their respondency to their federal award/s by virtue of being
defined as transitional employers . At the end of the transitional
period, transitional awards will cease to have effect. However, it
is presumed that these awards will be folded into modern
awards.
Allowable award matters applicable to pre-reform awards are
stipulated under the legislation.[37] These are:
- ordinary time hours of work and the time within which they are
performed, rest breaks, notice periods and variations to working
hours
- incentive-based payments and bonuses
- annual leave loadings
- ceremonial leave
- leave for the purpose of seeking other
employment after the giving of a notice of termination by an
employer to an
employee
- observance of days declared by or under a law of a state or
territory to be observed generally within that state or territory,
or a region of that state or territory, as
public holidays by
employees who work in that state, territory or region, and
entitlements of
employees to payment in respect of those days
- days to be substituted for, or a procedure for substituting,
days referred to in the above paragraph
- monetary allowances for:
- expenses incurred in the course of
employment
- responsibilities or skills that are not taken into account in
rates of pay for employees
- disabilities associated with the performance of particular
tasks or work in particular
conditions or locations
- loadings for working overtime or for shift work
- penalty rates
- redundancy pay, within the meaning of subsection (4)
- stand-down provisions
- dispute settling procedures but only as provided by
section 514
- type of employment, such as full‑time
employment, casual
employment, regular part‑time
employment and shift work, and
- conditions for
outworkers, but only to the extent necessary to ensure that
their overall
conditions of
employment are fair and reasonable in comparison with the
conditions of
employment specified in a relevant
award or
awards for
employees who perform the same kind of work at an
employer s business or commercial
premises.
Certain matters formerly provided in awards are rendered
unlawful. These matters are specified and include inter alia:
- dispute resolution procedures to the extent that they stipulate
union involvement
- provisions which stipulate the numbers or proportions of
employees an employer may employ
- prohibitions on employers employing employees in certain forms
of employment
- maximum or minimum hours for part-time workers
- restrictions or conditions on the engagement of contractors or
labour hire workers and
- conversion from casual status to other employment
forms.[38]
There are also certain provisions which are not included in
allowable award matters but which continue to operate for the class
of persons who were employed under them prior to Work Choices. For
these employees, preserved terms include provisions duplicated in
the AFPCS where the award provision is more generous than the AFPCS
provision, and thus prevail. Preserved award terms are specified in
section 527 of the WR Act. Preserved award terms do not bind
employers who may become covered by the award after the
commencement of Work Choices.
Preserved terms should not be confused with the now repealed
protected award terms.[39] Preserved provisions are:
For employees employed under awards, the effect of preserved
award terms is to grandfather the specified terms and thwart the
intent of the reduced allowable matters.
All workplace agreements are subject to the AFPCS. A fifth AFPCS
provision, working hours, is both an allowable award provision and
a provision of the AFPCS.
The Coalition Government determined under Work Choices that
employees entering into workplace agreements would be protected by
the AFPCS via three devices.
Firstly, through a more favourable test based on the AFPCS. This
means that only agreement terms which were more favourable than the
AFPCS would be allowed to displace AFPCS terms, thus ensuring that
agreements, whether formal or informal, would reflect the
AFPCS.[40]
Secondly, for award employees and those who usually work under
an award but for the new agreement, those award terms specified as
allowable/protected were to be taken to be included in the content
of workplace agreements.
Thirdly, where the employees AFPCS provisions are less generous
compared to the award s provisions for those matters, then the
award s preserved provisions were to take precedence.
Workplace agreements had been proffered as business friendly
alternatives to rigid centralised awards since the late
1980s.[41] The
importance of registered or filed workplace agreements is reflected
in accompanying provisions allowing agreements to override parts of
the legislated and award safety net. Under both Labor and Coalition
federal governments, some legislative form of comparative test of
agreement provisions to award provisions had existed since
1992.[42] However,
the Howard Government considered these tests had been too complex
and proposed the simplified approach outlined above. It reversed
this view just on two years later and introduced a Fairness Test to
compare workplace agreement provisions with award provisions from 7
May 2007.
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It is often reported that the Work Choices amendments have
extended the coverage of employers and employees under the federal
jurisdiction, but still fall short of uniform coverage. The former
Department of Employment and Workplace Relations observed that:
It is estimated that a national workplace
relations system will cover 85 per cent of all Australian
workers.[43]
This may be an overestimate. The Queensland Government undertook
survey research on jurisdictional coverage, based in part on the
legal status of businesses and concluded that 38 per cent of
Queensland employees would remain in the Queensland jurisdiction
after Work Choices. Nationally, the study estimated that 76 per
cent of employees would be federally covered.[44] It should be noted that the
study assumed local governments to be trading corporations and
therefore within federal coverage.[45] However, doubts about the legal
status of local government persist in light of conflicting cases
emerging as to whether councils can be regarded as trading
corporations.[46]
Overall, employees excluded from the federal system are state
government, some local government employees and employees of
unincorporated employers in the private sector. This leaves
possibly upwards of 70 per cent of employees under the federal
system, for the time being.[47] The Australian Chamber of Commerce and Industry
(ACCI) estimates a minimum of 800,000 additional employees have
come under federal workplace regulation who are employed under
employment contracts which are now subject to the Australian Fair
Pay Standard (and other regulations).[48]
It is useful to understand the mechanisms by which the new
federal workplace system captures the current share of employers
and their employees. The WR Act establishes its wide coverage of
employees through its definition of employer which reveals the
constitutional underpinning introduced by the Work Choices
amendments.[49] An
employer is taken to mean:
Section 6 (1)
(a) a
constitutional corporation, so far as it employs, or usually
employs, an individual; or
(b) Commonwealth,
so far as it employs, or usually employs, an individual; or
(c) Commonwealth
authority, so far as it employs, or usually employs, an individual;
or
(d) a person or
entity (which may be an unincorporated club) so far as the person
or entity, in connection with constitutional trade or commerce,
employs, or usually employs, an individual as:
(i)
a flight crew officer; or
(ii) a
maritime employee; or
(iii)
a waterside worker; or
(e) a body
corporate incorporated in a Territory, so far as the body employs,
or usually employs, an individual; or
(f) a
person or entity (which may be an unincorporated club) that carries
on an activity (whether of a commercial, governmental or other
nature) in a Territory in Australia, so far as the person or entity
employs, or usually employs, an individual in connection with the
activity carried on in the Territory.
(g) a person or
entity (which may be an unincorporated club) that carries on an
activity (whether of a commercial, governmental or other nature) in
a Territory in Australia, so far as the person or entity employs,
or usually employs, an individual in connection with the activity
carried on in the Territory.
Employers who do not fall within the above constitutional
criteria are excluded from the federal system (except for
transitional employers discussed below). The relationship between
the federal system and state jurisdictions is discussed later also,
but it is important to note that the shift of the constitutional
underpinning from the labour power to the constitutional
underpinnings outlined above has broadened the scope of the federal
jurisdiction and the application of the federal safety net of
employment conditions to more employees than was the case.[50]
There are many reports that the safety net following the Work
Choices amendments has widened obligations on employers.[51] It would be reasonable
to assume that corporate employers who were formerly award-free
would have experienced a significant increase in their employment
obligations with the advent of the AFPCS, as well as having to meet
associated regulatory obligations such as maintaining time and
wages records.[52]
A useful way of understanding the new safety net to employers
and employees is to look at the application of the safety net to
award-free employers. The example proposed to be used for
illustrative purposes is the telecommunications business One.Tel,
which traded as a telephony business over 1995 2001. Its use of
employment contracts (not registered as AWAs) and the absence of a
relevant industry award came to light in One.Tel s insolvency in
2001 and the subsequent termination of its staff.[53]
The WR Act as introduced at the end of 1996 countenanced the
making of such informal or non-registered employment arrangements
and stipulated these under its objects. The then WR Act s
concession to informal employment arrangements distinguished it
from its predecessors. Previously, it would have been difficult to
countenance that a new business employing more than 1400 staff
could operate award-free.[54]
This case study assumes that a hypothetical One.Tel had
continued to trade from 2001 up to the less buoyant economic
conditions of 2008, and was then placed under financial
administration resulting in the termination of its staff. The
question that is addressed is how would the federal safety net
affect that business? There is little question that such a business
would be subject to the federal safety net in 2008. The
hypothetical application of the wage safety net to One.Tel is
assessed below with questions and answers in reference to the terms
of the safety net discussed earlier. Such a process helps to
outline both its role and limits.
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|
Would the WR Act apply to One.Tel
?
|
Yes. As the company and its related entities were
businesses registered with the Australian Securities and Investment
Commission, One.Tel would fall under the definition of a Work
Choices employer at section 6 of the WR Act.
|
|
Would the AFPCS apply to One.Tel
?
|
Yes. Its contracts with its employees would be subject to the
AFPCS, i.e. in respect of a minimum wage set by the AFPC at $522.12
for adults from 1 October 2007, a 38 hour week averaged, annual
leave, personal carers leave and parental leave. In addition,
minimum entitlements would apply to One.Tel employees: a meal break
after five hours work and seven public holidays. The WR Act s
Termination of Employment provisions would apply to One.Tel
employees and the employer would have to comply with time and pay
record obligations under Work Choices.
|
|
Would One.Tel
contracts be subject to the No Disadvantage Test?
|
No. Workplace agreements are defined to be ITEAs or collective
agreements (section 4) and do not include employment contracts.
Were One.Tel predisposed to register the contracts as AWAs in 2001,
the Employment Advocate would have designated an award for
assessment of the agreement under the then NDT.
|
|
Do allowable award
matters, and protected award terms apply to One.Tel
employees?
|
No. These provisions would be irrelevant to One.Tel
employees.
|
|
If One.Tel were to
become insolvent, could a redundancy award be made for One.Tel
employees, as in 2001?
|
No. Redundancy pay is not a provision of the AFPCS. The AIRC no
longer has the authority to make a safety net redundancy award
(prevented previously by section 540, although the Transitional Act
repealed s.540 of the WR Act). While the Labor Government has
proposed the National Employment Standards (NES) which include
redundancy pay, they are not intended to operate until January
2010. New awards can only be made via the award modernisation
process. In the meantime should a One.Tel situation occur, the AIRC
may utilise its powers to vary an award with respect to respondency
under sections 552, 553 and 557, i.e. to bind the award-free
employer to a relevant industry award. Whether such a strategy
would resolve the issue is difficult to anticipate.
|
|
How would Labor s
Transitional Act affect One.Tel employment
relationships
|
Key components of the Work Choices safety net remain in place.
The Transitional Act introduced an NDT similar to the one which
operated in 1997-2006 for new agreements. The NDT only applies to
workplace agreements submitted for approval with the Workplace
Authority, and does not apply to unregistered employment contracts,
although the Work Choices safety net does. Therefore the impact of
the Transitional Act in respect of award-free employers would be
the award modernisation amendments and the possibility of becoming
bound to an award.[55]
|
|
Would One.Tel
employees be entitled to GEERS payments in the event of their
employer s insolvency?
|
No. One.Tel employment contracts did not make provisions for
redundancy.[56]
GEERS Operational Arrangements (revised in 2006 and applicable in
2008) require that at the date of the appointment of an insolvency
practitioner, a GEERS entitlement, such as redundancy pay, must be
provided for in: legislation, an award, a Statutory Agreement or a
written contract of employment.
|
It might be noted that the Coalition Government refused the
opportunity to extend the AFPCS to include redundancy, following
proposed amendments by the Australian Greens to incorporate
redundancy pay into the AFPCS in 2007. The Greens amendments were
in response to the Bill introducing the Fairness Test.[57] Then, Senator Abetz
responded:
The Government opposes the amendment The
Government considers that parties should be free to bargain the
terms and conditions that best suit their circumstances, and adding
redundancy provisions to the standard reduces their ability to do
so.[58]
Labor s Transitional Act modifies the operation of certain
elements of the Work Choices safety net, while other elements are
left in place with a view to a more thorough revamp effective from
2010. The making of new AWAs has been terminated. Their
replacement, ITEAs, must not disadvantage employees when compared
with an applicable collective agreement and the AFPCS or, in the
absence of such an agreement, the AFPCS and the relevant
award.[59]
Labor intends to replace the AFPCS with National Employment
Standards (NES); however the AFPCS is in force currently and should
remain so until January 2010.[60] The AFPCS and the proposed NES are compared in
summary form, in Appendix 2. Wage rates will be reinstated within
modern awards, due to come into operation from 2010. A minimum wage
is to apply to award-free workers.[61] Prima facie, this appears to
constitute an eleventh national employment standard.
Labor made the NES available for public consultation and
discussion early in 2008 and a final version of the NES was
announced on 16 June 2008, but is yet to be tabled in
parliament.[62]
Labor expects the modernisation of awards will contain its proposed
allowable matters content and reflect the NES where needed. The
process should be completed over 2008 09, in time for incorporation
in Labor s principal workplace relations Bill. This Bill will give
effect to modern awards and the NES (as well as other
provisions).
The minister s award modernisation request to the AIRC
stipulated that it develop award flexibility clauses allowing
employees to agree to changes in the application of award
provisions (Award Flexibility Agreements or AFAs). The AIRC issued
a decision on the contours of award flexibility clauses following
submissions from key stakeholders in response to the
request.[63] It
confirmed that employers would be able to enter award flexibility
agreements limited to:
- arrangements for when work is performed
- overtime rates
- penalty rates
- allowances and
- leave loading.
Employers would not be able to make AFAs a condition of
employment for new employees. The AIRC added a no-disadvantage test
based on the existing test for ITEAs in the transitional
legislation for employers to assess the AFA against, although any
AFA will not need to be registered.
Award modernisation is intended to rationalise the number of
awards and NAPSAs and align their content to the proposed allowable
award matters, and to a lesser extent, the NES. Award modernisation
is facilitated under the amendments made to the WR Act by the
Transitional Act. Section 576C of the WR Act provides that the
award modernisation process must be carried out by the AIRC in
accordance with a written request made by the minister to the AIRC
President. The process was activated when the Minister for
Education, Employment and Workplace Relations, Julia Gillard,
signed a formal request to the President of the AIRC on 28 March
2008 pursuant to section 576C of the WR Act. AIRC President Guidice
has reported that, excluding single enterprise awards or awards
made when bargaining had failed (formerly referred to as section
170MX awards) there are about 740 awards subject to modernisation.
This tally excludes single enterprise awards and a number of other
awards, for example providing only for long service leave or
superannuation.[64]
The minister s request provides additional guidance to the AIRC
on the nature and function of modern awards and on the process
generally. Inter alia, the AIRC is to have regard to the
desirability of avoiding the overlap of awards and minimising the
number of awards that may apply to a particular employee or
employer; where an overlap does arise, the AIRC will indicate which
award applies. Award modernisation is not to result in increased
costs for employers nor should employees lose conditions. The
request envisages that the AIRC complete award modernisation by 31
December 2009. The process of award modernisation was detailed in
the Parliamentary Library s Bills Digest on the
Transitional Act.[65]
The amendments to the WR Act by the Transitional Act set out the
characteristics of modern awards (section 576A). They must:
- be simple to understand, easy to apply and must reduce the
regulatory burden on business
- provide a fair minimum safety net of enforceable terms and
conditions, in step with the proposed legislated employment
standards (NES)
- be economically sustainable and promote flexible modern work
practices and the efficient and productive performance of work
and
- be in a form that is appropriate for a fair and productive
workplace relations system that promotes collective enterprise
bargaining but a system which does not provide for statutory
individual employment agreements.
Modern awards must result in a certain, stable and sustainable
modern award system for Australia. The following awards have been
selected by the AIRC as priority awards for modernisation:
- clerical workers in the private sector
- coal mining
- glue and gelatine
- higher education
- hospitality
- metal and associated industries
- mining industry
- racing
- rail
- retail
- rubber, plastic and cable making
- security
- textile, clothing and footwear and
- vehicle manufacturing.[66]
An initial attempt to modernise the
awards listed above was made by the AIRC on 12 September 2008
in drafting the content of new awards.[67] However the proposed new awards are
said by the Australian Chamber of Commerce and Industry (ACCI) to
significantly increase costs in the retail industry and the
Australian Services Union (ASU) claims Victorian casual clerical
workers will lose $45 a week. The AIRC s plan to reinstate small
business redundancy pay from 2010 has also concerned employers, and
the Government response has been to make submissions to the
AIRC.[68] As noted,
new awards are supposed to coincide with the operation of Labor s
substantive legislation and be operative from January 2010.[69]
Overall and in the longer term, Labor prefers to increase the
percentage of the workforce covered under the federal system and to
develop a single workplace relations system for the private
sector.[70] New
South Wales on the other hand appears reluctant to cede the
relevant powers and supports a co-operative federal-state system
for administering industrial relations.[71]
The scope and content of wage (and employment) safety nets is
likely to be of ongoing public debate.[72] Recurring political contest over a
core non-award employment safety net may come to be seen as the
enduring legacy of the Coalition Government and Work Choices. The
scope of the employment safety net is subject to political contest,
most evident in the Labor Government s increased safety net (offset
in part by the reduction in award matters, see Appendix 2).
It also needs to be acknowledged that certain advances have been
made with the introduction of the AFPCS. Employees who may have
previously been award-free workers are likely to have been
significantly advantaged by the application of the AFPCS. As well,
many workers have experienced an improvement to personal and
compassionate leave as the result of slightly improved AFPCS terms
displacing award provisions. However, awards are not as definitive
as they once were. This is the consequence of the former award
simplification and rationalisation process not having been
triggered, while award modernisation is yet to be completed.
Therefore, possibly 30 per cent of current award provisions are
either not enforceable (such as small business redundancy
provisions) or are possibly inaccurate (such as award personal
leave standards when compared to the AFPCS).
The example of a hypothetical One.Tel insolvency under Work
Choices highlights the limitations of the AFPCS, and Work Choices
restraints over the industrial machinery. Not too long ago, the
industrial machinery fashioned a suitable response to the One.Tel
insolvency, in light of community standards on redundancy and other
entitlements. It is less clear as to how the industrial system
would respond to a similar situation in 2008.
Back to top
|
ACCI
|
Australian Chamber of Commerce and Industry
|
|
ACTU
|
Australian Council of Trade Unions
|
|
AFA
|
Award Flexibility Agreement
|
|
AFPC
|
Australian Fair Pay Commission
|
|
AFPCS
|
Australian Fair Pay and Conditions Standard
|
|
AiG
|
Australian Industry Group (formerly the Metal
Trades Industry Association or MTIA)
|
|
AIRC
|
Australian Industrial Relations Commission
|
|
ALP
|
Australian Labor Party (Labor)
|
|
APCS
|
Australian Pay and Classification Scales
|
|
AWA
|
Australian Workplace Agreement
|
|
DEEWR
|
Department of Education, Employment and Workplace
Relations
|
|
EESS
|
Employee Entitlements Support Scheme
|
|
GEERS
|
General Employee Entitlements and Redundancy
Scheme
|
|
ITEA
|
Individual Transitional Employment Agreement
|
|
MTFU
|
Metal Trades Federation of Unions
|
|
NAPSA
|
Notional Agreement Preserving State Award
|
|
NDT
|
No Disadvantage Test
|
|
NES
|
National Employment Standards
|
|
QLD
|
Queensland
|
|
Transitional Act
|
Workplace Relations Amendment (Transition to
Forward with Fairness) Act 2008
|
|
WR Act
|
Workplace Relations Act 1996
|
| Pre Work Choices award allowable matters
(1998-2006) |
Work Choices award allowable matters (and protected
terms in agreements, from 2006) |
Australian Fair Pay and Conditions Standard ( from
2006) |
Proposed legislated safety net: National Employment
Standards (from 2010) |
Proposed award minimum conditions (from
2010) |
|
Classification of employees
Ordinary time hours of work and the times in which they are
performed
Rates
of pay
Incentive-based payments, piece rates and bonuses
Annual
leave and leave loadings
Long
service leave
Personal/carers leave
Parental leave
Paid
public holidays
Allowances: 'work-related' or 'expense-related'
Loadings for working overtime or for casual work or shift work
Penalty rates, e.g. weekend work
Redundancy pay
Notice
of termination
Stand-down provisions in a dispute settling procedure
Jury
service
Type
of employment: full-time, casual, regular part-time employment and
shift work
Superannuation
Pay
and conditions for outworkers
|
Ordinary
time hours of work and the time in which they are performed
Incentive‑based payments and bonuses
Annual
leave loadings
Ceremonial
leave
Leave to
seek other work after notice of termination
Paid public
holidays, declared by a state or territory
Monetary
allowances (for skills, expenses, disabilities)
Loadings
for working overtime or for shift work
Penalty
rates
Redundancy
pay
Stand‑down provisions
Dispute
settling procedures
Type of
employment: full-time, part-time or casual and shift work
Conditions for
outworkers
|
Annual
leave: 4 weeks; 5 weeks for shift workers and 2 weeks can be traded
off
Personal leave: 10 days; 2 days compassionate leave; 2 days unpaid
carers leave when paid leave exhausted. Can cash out providing 15
days accrual is retained
Unpaid
parental leave: 12 months
Ordinary working hours: 38
Minimum wage: $522.12 or $13.75 ph
7
Public holidays (not necessarily paid) and others declared by a
state or territory except union picnic days or others excluded by
regulation
Meal
break: 30 mins after 5 hrs work
|
Hours of work: 38 hours
Unpaid parental leave: 24
months
Flexible work for
parents
Annual leave: 4 weeks;
Shift workers 5 weeks
Personal, carer s leave: 10
days paid; 2 days paid compassionate leave. Additional 2 days of
unpaid personal leave
Community Service Leave eg
jury service and unpaid leave for emergency services
Public holidays: minimum of
8 plus extra holidays depending on state/territory
Information in the
workplace: a Fair Work Information Statement
Termination of Employment
& Redundancy: notice of up to 4 weeks, plus 1 week for those
> 45yrs. Redundancy pay up to 16 weeks reducing after 10 yrs
service
Long
service leave: current state/federal entitlements
(National minimum wage for award free workers[73])
|
Minimum wages - including
skill-based classifications and career structures, incentive-based
payments and bonuses, wage rates, and arrangements for apprentices
and trainees
Type of work performed -
permanent or casual, facilitative provisions for flexible work
Arrangements for when work
is performed hours, rosters and breaks
Overtime rates
Penalty rates when work is
"unsocial, irregular or unpredictable"
Annualised wage or salary
arrangements as an alternative to penalty rates
Allowances including
expenses, higher duties and disability payments.
Leave and leave
loadings
Superannuation
Consultation,
representation and dispute settling processes
To exclude employees on
>$100,000
|
Appendix 3: Federal safety net wage adjustments
1991-2008
| |
Claim |
Government position |
Industry response |
AIRC Outcome |
| 1990 |
ACTU to implement Accord 6
via enterprise bargaining, essentially outside the AIRC
November: ACTU claim for $12.00 from 16 May 1991, + additional
3% superannuation from 1 May
|
(see below) |
(see below) |
September: AIRC issues decision acknowledging
enterprise bargaining (Print J4700) |
| 1991 |
(follows from above claims) |
The ACTU claims were supported by the Commonwealth
Government and the governments of Victoria, Western Australia,
South Australia, Tasmania and Queensland |
The Confederation of Australian Industry (CAI) opposed the
$12.00 per week across the board increase. It argued that the
Commission should defer consideration of the claim until closer to
the date sought by the ACTU (May 1991)
The Metal Trades and Industry Association (MTIA) and the Metal
Trades Federation of Unions (MTFU) agreed on a $12.00 per week
increase, plus two payments of 2.5% plus an increase of Employer
Superannuation contributions of 1%
|
16 April 1991: $12.00
refused 2.5% available from 16 April (Print K7400)
October 1991: enterprise bargaining adopted via s.112/115
agreements (Print K0300)
|
| 1992 |
ACTU flagged a general wage increase |
|
ACCI responded that any general wage increase would
be bitterly contested, as unemployment was increasing |
No decision |
| 1993 |
ACTU sought recision of the October 1991 principles
and a wages system according to Accord Mk 7 which included $8.00
for those not able to strike workplace agreements |
Commonwealth supported Accord Mk 7 |
ACCI/MTIA supported enterprise bargaining but not
Accord Mk 7. They also argued that awards should be simplified to
form a true basis for enterprise bargaining and supported the
removal of award-based superannuation provisions |
The AIRC gave two decisions in the October 1993
Review of Wage Fixing Principles, 25 October 1993 (Print
K9700) and the 15 November 1993 Supplementary decision (Print
K9940). These decisions awarded an increase of $8 per week in award
supplementary payments, but also revamped wage fixing
principles |
| 1994 |
ACTU claim $8.00 per week wage increase to
employees who have not received wage increases of this level (other
than Minimum Rates Adjustment or Structural Efficiency Adjustment)
since 1991; another safety net adjustment of $8.00 per week to
employees who have not received an increase through enterprise
bargaining; and a further SNA for employees of $8.00 per week from
1 July 1995. |
The Commonwealth supported the ACTU claim. Note
that the Commonwealth supported an extensive review of awards under
s.150A, and proposed 'foundation' and non-foundation' clauses |
ACCI wanted to defer the
claim indefinitely, perhaps until awards were fully restructured
through s.150A reviews
MTIA believed no increase should be granted and any
consideration of the safety net adjustment claim should be
deferred
|
August 1994: Review of
Wage Fixing Principles confirms two more safety net
adjustments of $8.00 (Print L4700)
21 September 1994: Safety Net Adjustment and Review
(Print L5300)
|
| 1995 |
Application for the third $8.00 |
The Commonwealth, New South Wales and Queensland,
supported the adjustment. |
ACCI and the National
Farmers Federation (NFF) were opposed to the granting of the third
arbitrated safety net adjustment.
MTIA, gave qualified support to the third arbitrated safety net
adjustment
|
October 1995: Third Safety Net Adjustment and
Section 150A Review confirmed availability of third $8.00
(Print M5600) |
| 1997 |
ACTU claim 'Living Wage' increases in award rates,
equivalent to 8.75%, this percentage includes the $20.00 claim for
those who have not had increases from enterprise bargaining beyond
the $24.00 since November 1991 |
Joint governments(Cth, ACT,
WA, SA, NT, Vic, Qld, Tas) think the claim should be rejected. and
a flat $8 per week increase should be applied to minimum rates
awards
New South Wales thinks the claim should be granted
|
ACCI wanted the claim to be
rejected and no increase awarded
However, if the AIRC decided to award an increase, ACCI
supported a special allowance e.g. $5 per week for employees on
award rates in the range of $350-388 per week
|
22 April 1997: Safety
Net Review - Wages awards $10.00
New Minimum Wage (lowest adult rate in Metal Industry Award) set
at $359.40
(Print P 1997)
|
| 1998 |
ACTU claim on two
stages
Stage 1: effective from 22 April 1998, a minimum weekly rate of
$380.00 ($20.60 increase); $20.00 wage increase for all workers
since 1 July 1996, or 3rd $8.00 which ever is later.
Stage 2: effective from 22 April 1999, a minimum wage of
$418.00, through either $38.00 increase, or 7.7% with commensurate
increases for other classifications
|
Joint governments (Cth,
ACT, WA, SA, NT, Vic, Qld, Tas) opposed the claim and proposed
$8.00 from 22 April 1998 & 2nd $8.00 from 22 April
1999
Also believe increases should apply to the minimum wage and
there should be no increases for those above metal tradesman
classification
NSW supports Stage 1
|
ACCI believed claim should
be rejected. Otherwise, a modest SN increase could apply with a 12
month space from the date of last increase in any award.
MTIA rejected claim and
supported a flat $8.00 applied to award rates and the minimum wage
from 22 April 1998
|
29 April 1998: Safety
Net Review Wages
For award rates up to $550 pw, $14.00 granted.
For award rates from $551 to $700, $12.00 granted
For award rates over $700, $10.00 granted
Minimum Wage increased to $373.40
(Print Q 1998)
|
| 1999 |
ACTU claim $26.60 per week for all award rates of
pay up to $527.80 per week for C7 in the metal industry 5% for all
award rates of pay above that level, commensurate adjustment of
allowances and service increments |
Joint governments (Cth,
ACT, NT, SA, WA, Vic) believed the ACTU's wage claim should be
rejected and replaced with an $8 per week safety net adjustment to
C10 level
NSW, QLD and Tas supported the ACTU s wage claim
|
ACCI and NFF believed the
hearing of the ACTU s wage claim should be deferred.
The Victorian Employers Chamber of Commerce and Industry (VECCI)
and the Australian Hotels Association (AHA) believed the minimum
wage should operate as the benchmark wages comparator for the
purposes of the NDT in the certification of agreements
AiG wanted the ACTU s wage claim rejected and replaced with a
flat adjustment of $8 per week applied to all award rates of pay
and to the minimum wage, which was not payable before 22 April 1999
and fully absorbable into over award payments, irrespective of
whether they reflect formal or informal agreements or individual
arrangements
|
29 April 1999: Safety
Net Wages Review
$12.00 for rates up to
$510; $10.00 for rates above this. New minimum award rate of
$385.40 (Print R 1999)
|
| 2000 |
ACTU claim for $24 in award pay rates up to and
including classification C7 (currently $537.80) in the Metals
Engineering Award, and 4.5% for classifications above this. (lodged
October 1999) |
Federal and state coalition
governments opposed $24 but agreed that $8 should be awarded to
below trade classifications up to the C10 trade rate of $477.20
State Labor governments supported the ACTU application
|
ACCI requested the AIRC defer hearing the claim and
submitted that new employees in start-up businesses be paid the
minimum wage ($385.40) for up to 6 months and be paid the minimum
wage indefinitely if they are employed under a certified agreement
or AWA. |
AIRC decision increases all
rates by a uniform $15.00. Rejects ACCI proposal for an induction
wage.
New minimum wage of
$400.40
2 May 2000 (Print S5000)
|
| 2001 |
ACTU claim for $28 for classifications up to C10
($492), and 5.7% for those above that |
Coalition governments
opposed the claim and proposed a $10 increase in rates to C10
level.
Labor states supported the ACTU claim, but in the alternative
supported an increase consistent with the evidence
|
ACCI, AHA and NFF and others submitted that a $10
increase be confined to the minimum wage. ACCI proposed an
additional 12 months delay between the times when awards are varied
for a safety net increase. AIG supported a flat dollar amount. |
AIRC increased rates
by:
$13 for rates to $490
$15 for rates between $490 to $590
$17 for rates over $590
New minimum wage of $413.40
2 May 2001 (PR002001)
|
| 2002 |
ACTU claim for $25.00 for all award pay rates |
Labor states supported the claim. Federal
government proposed $10.00 increase for all pay rates to the C10
level ($507) |
ACCI opposed ACTU claim and instead proposed $10.00
increase at the minimum wage level ($413.40) |
AIRC granted $18.00
increase to all award pay rates.
New minimum wage of $431.40
9 May 2002 (PR002002)
|
| 2003 |
ACTU claim for $24.60 for all award rates |
Labor states supported an
increase in award rates of $18.00.
Commonwealth did not oppose
an increase in award rates of up to $12.00 but for award rates at
the Metal Award s C10 rate ($525.20), or below
|
ACCI opposed the claim.
AiG proposed $11.00 subject
to absorption
NFF opposed any increase
and argued a farmer s status of exceptional circumstances should
satisfy the economic incapacity principle
|
AIRC granted $17.00 for
award rates up to $731.80 [Metal Award s C2(a) rate] and $15.00 for
rates higher than this
New minimum wage of
$448.40.
6 May 2003 (PR002003)
|
| 2004 |
ACTU claim for $26.60 |
The Commonwealth relied on the Harding report on
the effect of minimum wage rises costing jobs. Labor state
governments supported $20. Commonwealth agreed to a $10 increase up
to the C10 level |
ACCI and AiG supported a
$10 increase: ACCI capped at the C10 level, AiG applying to all
award rates
ACCI sought a 28 day notice
period for employers before passing on any increase in award
rates
AiG sought a new commitment
to continuous improvement in productivity and efficiency
|
The AIRC awarded increase of $19 for all awards on 5 May 2004
(PR002004)
The minimum wage increases to $467.40, and the C10 rate is now
$561.20
|
| 2005 |
ACTU claim for $26.60 |
State & territory
governments proposed $20 increase to all award rates
Commonwealth Government
proposed $11 for C14 to C10 rates
|
ACCI & NFF proposed $10
increase to the equivalent of C14 to C10 rates in the Metals
award
AiG proposed $11 for all
award rates
|
The AIRC awarded a $17 increase on 7 June 2005 to
all award rates bringing the federal minimum wage to $484.40
(PR002005) |
| 2006 |
ACTU claim for $30 |
NSW, Qld and Tas supported
a $20. increase
Federal government did not
nominate a dollar increase
|
AiG proposed a $14
increase.
ACCI did not nominate a
dollar increase
|
The AFPC determined an increase of $27.36 for pay scales to $700
and $22.04 for those above $700 on 26 October.
(www.fairpay.gov.au/fairpay/
WageSettingDecisions)
New minimum wage of $511.76, from 1 December 2006.
State minimum wages:
NSW $504.40
QLD $503.90
WA $504.40
SA $501.40
TAS $501.40
|
| 2007 |
ACTU claim for $28 over 12 months |
Federal government did not
propose a dollar increase but argued that tax cuts from 1 July 2007
should be allowed for.
State and territory Govts
proposed $20 increase
|
ACCI claimed any rise
should apply to low paid
AIG proposed $10
|
AFPC determined $10.26 for rates to $700; $5.30 above $700 on
5 July 2007, effective from 1 October 2007
(www.fairpay.gov.au/fairpay/
WageSettingDecisions)
New federal minimum wage of $522.12 ($13.75 ph) compared to:
$531.40 in NSW
$528.40 in WA
$527.10 in Tas
$528.40 in Qld
$511.90 in SA,
|
| 2008 |
ACTU claim for $26 |
Federal government did not propose a dollar wage
increase |
ACCI proposed $10 - $11
($10.25);
AiG proposed $13.30
|
AFPC determined $21.66 on 8 July, to apply to all pay scales and
the minimum wage. (www.fairpay.gov.au/fairpay/
WageSettingDecisions)
New minimum wage of $543.78 ($14.31 ph) to apply from 1 October
2008.
$552.70 in NSW
$557.40 in WA
|
Back to top
[35]. In other
words the relevant employer is not caught under the constitutional
definition of Work Choices employers as prescribed in section 6 of
the WR Act and typically this means that the business is not an
incorporated entity. Schedule 6 of the WR Act deals with
transitional employers, transitional awards and transitional
employees.
[67]. AIRC,
Award modernisation, 2008 AIRCFB 717, 12 September 2008,
http://www.airc.gov.au/decisionssigned/html/2008aircfb717.htm,accessed
on 29 September 2008.
[72]. J. Gillard, Minister for Education Employment
and Workplace Relations and Minister for Social Inclusion Forward
with Fairness Transitional Arrangements , Media Release,
17 December 2007.
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