Bills Digest No. 46  1999-2000 Workplace Relations Legislation Amendment (Youth Employment) Bill 1998


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Workplace Relations Legislation Amendment (Youth Employment) Bill 1998 [No.2]

Date Introduced: 24 June 1999

House: House of Representatives

Portfolio: Employment, Workplace Relations and Small Business

Commencement: The substantive provisions of the Bill commence 28 days after the day on which the Act receives Royal Assent

Note: This Digest complements Bills Digest No.60 of 1998-99 issued on 2 December 1998.(1)

Purpose

The Bill amends the Workplace Relations Act 1996 and the Workplace Relations and Other Legislation Amendment Act 1996 (the Principal Acts) to:

  • promote the inclusion of junior rates in awards and workplace agreements
  • insulate junior wage rates on a continuing basis from the anti-discrimination provisions of the Principal Acts. (2)

The Bill need not necessarily affect existing levels of youth wages. It is, however, intended that it will over time lead to a further spreading of junior rates in industrial awards and agreements.

Background

It is beyond the scope of this Digest to canvass all the material that might be regarded as relevant to the ongoing debate on youth wages and the position of young persons in the labour market.

An overview of key issues was given in Digest No.60 of 1998-99 and a more extensive treatment of those matters appears in the Australian Industrial Relations Commission (AIRC) Report referred to below.

For present purposes, the Digest focuses on developments since the present Bill was previously debated.

Recent parliamentary debate

This is the same Bill as that introduced by the Government on 26 November 1998 and negatived in the Senate at the second reading on 8 March 1999.

Initial debate on the Bill centred on:

  • whether the Bill's introduction in November 1998 pre-empted the inquiry into junior wage rates being conducted under section 120B of the Workplace Relations Act 1996 by the AIRC
  • the substantive merits of varying or removing existing junior rates from federal awards
  • whether there are viable non discriminatory alternatives to junior rates
  • the relevance of international labour standards and practice to the debate
  • whether the proposed legislation is necessary to remove any uncertainty surrounding the future of junior rates.
  • the root causes of youth unemployment, and
  • the efficacy of proposals to tackle youth unemployment and the consequences that such policy initiatives may have for the labour market outcomes at large, including the impact of junior rates on the employment prospects of adults (i.e. the so called 'displacement effect').

AIRC Report

Section 120B of the Workplace Relations Act 1996 provides that before 22 June 1999 a Full Bench of the AIRC must prepare a report for the Minister on the feasibility of replacing junior rates with non discriminatory alternatives.

A Full Bench of the AIRC was constituted on 3 August 1998 and presented a 337 page Report on 'Junior Rates' to the Minister for Employment, Workplace Relations and Small Business on 4 June 1999.(3)

A summary of major submissions to the AIRC Inquiry appears in Bills Digest No.60 of 1998-99 at pages 12-14.

The AIRC Report is a detailed and thoughtful study but is necessarily limited by its terms of reference as specified under section 120B of the Workplace Relations Act. To quote the document:

We construe section 120B to mean that the Inquiry is to do no more than to try to assist in resolving issues about the content of the legislation.(4)

The Full Bench was not conducting a 'test case'. Hence its pronouncements have no immediate effect on the rights of parties to awards and agreements.(5)

The Report makes no recommendations but as the authors note, many of their findings and observations are of considerable relevance to matters beyond the scope and content of the legislation.(6)

The essence of the Report is that none of the identified non-discriminatory alternatives examined during the inquiry were found to be feasible.

Somewhat disappointingly, the Commission was not prepared to develop its own 'non discriminatory' alternatives to junior rates even though it conceded that such alternatives might be able to be identified.(7)

Antecedent Questions

In testing the feasibility of replacing age-based rates with non discriminatory methods of wage fixing for young workers, the Commission canvassed a series of 'antecedent matters'. Critically, these matters included:

  • the nature, extent and causes of the youth employment
  • the connection between changes in junior rates and levels of employment and unemployment amongst younger workers
  • the functions of junior rates in the labour market, e.g. easing the school to work transition
  • the Commission's past, present and likely future approaches to junior rates
  • the content and meaning of the Principal Acts.

Observations and Findings

In commenting on the AIRC Report, Workforce, an independent weekly newsletter on industrial relations concluded:

On the desirability of replacing junior rates, the bench appeared to find more substantial arguments to justify their removal than their retention. Arguments for deletion included the wide variation in junior rates between industries; the denial of pay equity and work value when entry-level pay and progression are paid by age; and the inequity involved in employees reverting to "bare age" rates after performing managerial level duties. But the report noted that the considerations justifying replacing junior rates with non discriminatory alternatives distorted a proper balance between the two principles and failed to take into account the function of discounted entry level wages: providing equal opportunity for juniors to enter the workforce. The report said the task required a balance to be struck between discriminatory and non discriminatory rates and two objectives: (a) equal opportunity taking account of the competitive disadvantage of school leavers, teenagers and young employees; and (b) equality of treatment in employment for all employees taking account of skills, responsibilities, experience and performance.(8)

Workforce's assessment that the balance of argument favours abandoning junior rates may appear somewhat odd given that the AIRC's Report does not in fact support their wholesale removal. Such an assessment is also at odds with the views of the Minister for Employment, Workplace Relations and Small Business detailed in his tabling statement of 24 June 1999.(9)

Out of context, the Workforce view may appear all the more perplexing given findings of fact detailed in the Report addressing the possible consequences for youth employment of abolishing junior rates.

Key AIRC findings are that:

  • Unemployment among youth has in recent decades been at high levels, both in Australia and in other comparable nations.(10)
  • There are differences of emphasis and about cause and effects. But there is no room to doubt that employment for youth is relatively scarce, increasingly casual part-time, fragmented and dependent upon retail service industries.(11)
  • An important characteristic of the labour market affecting youth employment is the level of underemployment. The underemployment of juniors is significant, but so also is the underemployment of young adults and women.(12)
  • An effective removal and non replacement of existing discounts for age against adult wages will involve relative adjustments of a dimension that will result in significant disemployment effects for the corresponding class of employees now in receipt of junior rates, or to be in receipt of substituted pay rates.(13)
  • There is almost a consensus amongst commentators and interested parties that a discounted pay rate for entry level work continues to be necessary in the areas in which employment under junior rate classifications is most concentrated (ie retailing, manufacturing and construction industries).(14)
  • Junior rates are often a useful bridge to full-time employment, even if they are of relatively little use in securing direct entry to full-time employment.(15)

As things stand

Before proceeding to outline more recent developments, it may be helpful to say something about the state of the law and the ostensible reasons for the Bill.

Junior rates have existed for many years and as part of the federal award system since the first quarter of this century.(16) An estimated 56% of all people aged under 21 years are employed on junior rates with the retail industry being the largest employer of teenage workers.(17)

Laws and practice requiring adherence to anti-discrimination principles in the workplace as an incident of federal law date back at least as far as Australia's ratification in 1973 of International Labour Organisation Convention No.111, Discrimination (Employment and Occupation) 1958.

Tensions between the policy considerations underpinning the existence of junior rates and the principles inherent anti-discrimination law attracted little attention prior to the enactment of the Industrial Relations Reform Act 1993 (Cwth).

Prior to that time, the exercise of direct legislative power over youth employment and the protection of young workers had been principally a State responsibility. As the AIRC Report also notes, and as is still the case, '[f]ederal industrial legislation has made only isolated direct interventions to influence outcomes affecting youth employment'.(18)

The AIRC and its predecessors had inserted junior rates in most awards. Presently about 75% of the major federal awards contain junior rates and about 40-50% of certified agreements also make special provision for junior wages.(19) From at least the 1960s the process of creating junior rates has largely taken place on a case by case basis with the major exception being the AIRC's 1994 decision adopting a National Training Wage.(20)

Recent legislative changes

The detailed history of legislative provisions dating from 1993 and the development of Commonwealth laws outlawing relevant forms of discrimination are set out at length in Chapter 3 and Appendix C to the AIRC Report.

The AIRC Report recounts that the then Government accepted Australian Democrat amendments to the Industrial Relations Reform Bill 1993 widening anti-discrimination grounds in what was then the Industrial Relations Act 1988 to prohibit age discrimination in relation to certain employment matters. The 1993 Reform Bill was carried and came into effect on 30 March 1994.(21) On 13 May 1994 a single commissioner decision of the AIRC suggested that agreements containing wage differentials based on age did not come within the existing exemptions in the Industrial Relations Act. This created doubt over the future of existing junior rates and over the capacity of the AIRC to make further awards containing similar provisions.

In May 1994 further amendments were made to the Industrial Relations Act providing that from June 1994 until 22 June 1997, the AIRC must disregard any provision in that Act 'relating to rates of wages that discriminate against an employee because the employee has not reached a particular age'. This postponed the operation of the age discrimination provisions and protected existing junior rates.

The Workplace Relations Act 1996 was enacted and came into effect on 31 December 1996, replacing the Industrial Relations Act 1988.

In effect the new Act retained the relevant regulatory scheme regarding junior rates and the general prohibition on age discrimination. However, it simultaneously extended for a further three years (until 22 June 2000) the prohibition on reviewing junior rates provisions against the legislated age-based anti-discrimination criteria. Section 120B was inserted, providing for the AIRC to conduct the Inquiry currently under discussion. [Related changes were made to the objects of the Workplace Relations Act to reflect the requirements of the legislation in relation to future awards and certified agreements. Similar exemptions applied to a review of existing award conditions under Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act), ie the award simplification process. Section 170CK of the Workplace Relations Act made termination based on age unlawful except where such action is for a reason based on the inherent requirements of the particular job concerned.]

Commenting on these amendments, the AIRC Report states that the 1994 and 1996 changes to the law restricting the application of the age discrimination provision were activated by the Parliament's 'ill founded belief' that the age discrimination provisions would have the necessary effect of removing junior rates.(22)

Accordingly, the AIRC Report, whilst noting that such questions of interpretation are ultimately for the Courts, the Commission and the Parliament,(23) concludes that on its reading of the provisions, the mere expiry of the present exemptions does not, of necessity, terminate existing junior rates.

The position taken by the authors of the AIRC Report is that were the present exemption to expire on 22 June 2000 without further amendment to the Principal Acts, the Commission would deal with junior rates on a case by case basis as previously had been its normal practice.(24)

Such a case by case review would be undertaken in conformity with principles articulated by a Full Bench of the Commission. It would start from the rebuttal presumption that once the relevant exemptions affecting junior rates have expired, junior rates are to be treated as discriminatory. Accordingly, where this presumption is not rebutted, further junior rates must not be approved and existing rates ought to be removed as part of the review process under subitem 5(7) of the WROLA Act.(25)

As discussed below, however, it would seem likely that in most cases the AIRC would have little difficulty in rebutting the presumption that junior rates are discriminatory for the purposes of federal workplace relations laws.

Government's position

The Minister for Employment, Workplace Relations and Small Business, the Hon Peter Reith, delivered his second reading speech on 24 June 1999. The speech, one of two on this matter on that day by the Minister, makes reference to the likely impact of allowing the present exemptions to lapse without further changes to the Principal Acts. To quote the second reading speech:

The Workplace Relations Legislation Amendment (Youth Employment) Bill 1998 [No. 2] will amend the Workplace Relations Act 1996 and the Workplace Relations and Other Legislation Amendment Act 1996 to remove the uncertainty surrounding junior rates of pay by exempting junior rates, on a permanent basis, from the age discrimination provisions of those acts...

But junior rates are under threat. Under the existing provisions of the Workplace Relations Act, the continuation of junior rates in awards cannot be guaranteed after 22 June 2000. Until then, junior rates in all awards are exempted from the provisions of the anti-age discrimination requirements of the Workplace Relations Act. But this across-the-board exemption that protects junior rates expires on 22 June 2000.

Under the provisions of the bill, the way in which junior rates would be introduced into any particular award would be a matter for the commission. It would be open to the commission to include transitional 'grandfathering' provisions similar to the way the commission has dealt with transitional issues of this nature in the past, as evidenced by the way it dealt with the conversion of paid rates awards to minimum rates awards. I emphasise again that this bill is not about cutting the wages of existing employees...

The report of the commission adds to the case in favour of junior rates. It is a case that is already overwhelming. Any move to abolish junior rates would be a highly irresponsible move, particularly given the delicate labour market situation that confronts young people...

The bill will also address the concern expressed in the commission's report that some aspects of the anti-age discrimination provisions of the Workplace Relations Act are ambiguous and vague. The report suggests that these ambiguities will eventually have to be addressed in parliament, in the commission or in the court. We agree that it is essential to remove any uncertainty about how the anti-age discrimination requirements of the Workplace Relations Act apply to junior rates.(26)

Earlier that day the Minister had tabled the AIRC Report. His tabling speech provided a detailed account of the AIRC Inquiry's major findings in support of the Government position and also made the argument that junior rates have been 'under threat' since 1993 and that the continuation of junior rates in awards cannot be 'guaranteed' after June 2000'.(27)

Notwithstanding the suggestion from the Minister junior rates are 'under threat', it is perhaps noteworthy that the Minister does not allege that all junior rates must automatically be discontinued if the proposed amendments are not in place by the date of expiry of the current exemptions. Indeed, his specific reference to the 'across-the-board' nature of the current exemptions may suggest that he and his advisers recognise that if the present Bill fails to pass, the Commission will still be able to protect junior rates post 22 June 2000 on a case by case basis.

The Minister's tabling speech also highlights the AIRC Report's concerns over ambiguity in the wording of the relevant provisions in the Principal Acts. Arguably then, the debate here is really about how any ambiguity ought to be addressed. One way of addressing that lack of clarity is to cut down the operation of the age discrimination provisions of the Principal Acts. But it is not the only way of producing legislative certainty. Arguably, there is room for debate and compromise.

The Government's present proposal, however, would see that tension between the conflicting policy objectives served by junior rates and anti-discrimination principles resolved by providing that age discrimination considerations play no part in any AIRC consideration of awards and agreements containing junior rates.

By contrast, the AIRC suggests that the present deficiencies in the Principal Acts might be addressed without totally discounting equity concerns that arise where age-based discrimination persists or is sanctioned by law. An approach 'flagged', but not pursued, by the AIRC would permit the retention of junior rates in awards and agreements but subject to certain incidents of discrimination based on age (such as where the discriminatory practice bears no relationship to the nature of the work performed) being proscribed.(28)

Constitutional implications of re-introduction

The Youth Wages Bill, having once been rejected by the Senate and re-introduced more than 3 months later in the House, is a potential double dissolution trigger.

Section 57

Section 57 of the Australian Constitution deals with deadlocks between the two Houses and relevantly provides that:

If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

A section 57 disagreement between the Houses in essence arises where the Senate:

  • rejects a proposed law, or
  • passes a proposed law but with amendments which are unacceptable to the House of Representatives, or
  • 'fails to pass' a proposed law.

One 'disagreement' is, however, not enough to prime the double dissolution trigger, and the Senate must for a second time either reject the Bill, fail to pass the Bill, or pass the proposed law with amendments that prove unacceptable to the House of Representatives.

The re-introduced Youth Wages Bill has been rejected once by the Senate, ie on 8 March 1999.

As the Senate rejected the Youth Wages Bill outright and more than 3 months have already elapsed since that date, there is no question that the Bill is now a potential trigger.

If the re-presented Bill comes before the Senate in its original form, it would become a trigger if the Senate again either rejects, fails to pass, or passes the Bill with amendments unacceptable to the House of Representatives. If the Senate did not reject the Bill outright but declined to deal with it within the Government's timeframe, such a delay may or may not amount to a 'failure to pass' within the meaning of section 57 of the Constitution.

In very general terms, what amounts to a 'failure to pass' for the purposes of section 57 depends on the particular circumstances including the history and nature of the Bill and normal Senate practice and procedure at the time. (29)Sending the present Bill to a Senate Committee may not (of itself) amount to a 'failure to pass', whereas keeping the Bill before the Committee without any intention of dealing with it probably would. Where a Bill has been considered previously by a Senate Committee, a second reference to a Committee would strengthen a claim that there had been a 'failure to pass'.

Timing

Once all necessary preconditions (referred to above) have been met, the Government may choose to advise the Governor-General to dissolve both Houses immediately or it may delay its request for a simultaneous dissolution until any date up to 6 months before the House of Representatives is due to expire.

The present House is due to expire on 9 November 2001, ie 3 years after its first meeting. (The next election for the House of Representatives must be held within 68 days of the expiry of the House, ie by 12 January 2002.)

As a double dissolution cannot be granted by the Governor-General within 6 months before the date of the expiry of the House of Representatives, the last possible date for granting of a dissolution under section 57 is Wednesday 9 May 2001. The subsequent election must be held within 68 days of the date of dissolution, ie the latest possible polling day for a double dissolution is Saturday 14 July 2001.

A more detailed account of possible election dates is given in 'When will it be? Timetables for Commonwealth Elections', Research Note No.10 1998-99, prepared by Margaret Healy of the Politics and Public Administration Group (IRS).

Main Provisions

Present position

The legislation contains provisions that would operate to prevent and eliminate discrimination in awards and agreements on the basis of age. Subject to the inherent characteristics of the job, it is also unlawful to terminate a worker on the basis of their age.

The relevant provisions prohibiting discrimination based on considerations of age are:

1. Workplace Relations Act 1996

Sections 3(j) (objects), 88B(e) (Commission's functions generally), 143(1C)(f) (awards and orders), 170LU(5) (certified agreements) and 170CK(f) (termination).

2. Workplace Relations and Other Legislation Amendment Act 1996

(This Act relevantly deals with the variation of awards by the Commission consequent upon the award simplification process.)

Item 49(8)(f) (awards varied prior to 30 June 1998), item 51(7)(f) (awards varied after 30 June 1998) in schedule 5 of the WROLA Act.

In relation to the making of awards and agreements and to the award simplification process, the legislation presently prevents the AIRC from taking the age discrimination provisions into account when assessing whether a junior rate should be determined or retained. Respectively these are sections 143(1E) (awards and orders) and 170LU(7) (certified agreements) of the Workplace Relations Act and item 54 in schedule 5 (award simplification) of the WROLA Act.

Each of the exemptions relevantly provides that prior to 22 June 2000, the Commission must not take the age discrimination provisions of the Principal Acts into account in junior rates matters. However, there is an exception to this exception. It is that the AIRC may take the age discrimination provisions into account on a case by case basis. For example, section 143(1E) of the Workplace Relations Act provides that:

Paragraph (1D)(a) does not apply to a decision or determination made by the Commission more than 3 years after 22 June 1997, except where the Commission decides, on a case by case basis, that the paragraph should apply. Decisions by the Commission as to whether the paragraph should apply must be made by the Commission in accordance with principles established by a Full Bench.

Government amendments

The Explanatory Memorandum provides a useful synopsis of the proposed changes and there is no need, given the foregoing discussion, to repeat all that material here.

Schedule 1 amends the Workplace Relations Act 1996.

Items 1-3 direct the AIRC's attention to the importance of protecting the competitive position of young persons in the labour market when exercising its functions.

As noted above, these provisions only direct that the AIRC take certain considerations into account. They do not and cannot direct the Commission to make a particular finding in any particular matter. The amendments must also stop short of directing the Commission as to how much weight it should give to the special circumstances of young people. There is also no attempt to direct the AIRC as to how it should balance this proposed requirement with other public interest provisions already in the Act. Lastly, it is left to the Commission to decide what particular policies will protect the interests of young workers, ie how it will construe the general provisions of the Act and, perhaps critically, how it may apply them to any question pertaining to junior rates.

Item 4 inserts a new subsection 88B(4). This will amend paragraph 88(3)(e) to provide that junior rates are not to be treated by the Commission, in performing its general functions under the Act, as constituting age discrimination.

Item 5 amends paragraph 143(1C)(e) to require the Commission to ensure that in making any award, it must give consideration to inserting junior wage rates. This provision offers the prospect that there will be an increase in the proportion of young employees covered by junior rates. Whether there is such a spreading of junior rates is, however, ultimately a matter for the AIRC and labour market forces.

Item 6 and 7 provide for the permanent exemption of junior rates in awards and certified agreements from the anti-discrimination provisions of the Workplace Relations Act. As noted above, there is presently a limited statutory exemption to the relevant anti-discrimination provisions, but it is due to expire on 22 June 2000.(30)

Schedule 2 deals with proposed amendments to the Workplace Relations and Other Legislation Amendment Act 1996.

These changes relate to the award simplification process and have a similar intent and operative effect to those amendments being proposed in relation to the Workplace Relations Act.

Concluding Comments

Bills Digest No 60 of 1998-99 made reference to the debate over the actual significance of the 'headline' rate of youth unemployment and presented figures pointing to the various influences on the labour market for young workers. In that Digest it was noted that:

'Reasons for the comparatively high levels of youth unemployment have been hotly debated for sometime and are discussed below. In brief, the causes of youth unemployment are ascribed to three factors:

  • inadequate levels of total demand in the economy
  • unsustainable levels of youth wages
  • structural and technologically induced changes in the labour market.

These are often portrayed as competing explanations of a single phenomenon. However, like recent academic commentators' suggestions for tackling unemployment generally, youth unemployment is a multi-faceted problem,(31) probably requiring a multi-pronged policy response...

The statistical evidence presented offers something of mixed picture. Over time there appears to be a strong positive relationship between levels of total unemployment/levels of economic activity and levels of unemployment amongst 15-19 year olds. For much of the past twenty years there has been a ratio of about 3:1 between youth unemployment and total unemployment. However, there have been departures from that ratio and this suggests:

  • the market for the employment of 15-19 year olds is fragile and may be deteriorating (i.e. the ratio increases when the job market weakens generally and the ratio appears to be widening in recent times)
  • generally a decline in total unemployment will cause a more dramatic decline in youth unemployment rates'.(32)

Further to these earlier remarks, in the time since the Bill was first introduced there has been a decline in the general level of unemployment and (consistent with the above analysis) an even more marked decline in the unemployment rate for 15-19 year olds seeking the full-time work. (The latter rate is the most commonly cited or 'headline' rate for youth unemployment.)

As at October 1998, the seasonally adjusted unemployment rate for persons aged 15-19 years looking for full-time work was 27.0%. The comparable figure for persons aged over 20 years looking for full-time work was 7.1%. The seasonally adjusted figure for total unemployment was 7.6%.(33)

By contrast, the seasonally adjusted unemployment rates for July 1999 are:

  • for persons aged 15-19 looking for full-time work: 21.4%
  • for persons aged over 20 looking for full-time work: 6.2%
  • for the total seasonally adjusted level of unemployment: 7.0%.(34)

The significant drop in the 'headline' rate for youth unemployment of about 5.5 percentage points in the nine months since October 1998 has attracted little media attention. But it is significant nonetheless.

The figures tend to reinforce the view that the market for young persons seeking full-time work is particularly sensitive to changes in the overall level of economic activity.

With regard to the present Bill, supporters of the proposed legislation may argue that the marked decline has been made possible by the retention of junior rates. Opponents of the legislation may recall that when youth unemployment reached record levels, those same junior rates were also in place. More pointedly, it might be argued that the marked fall in youth unemployment since October 1998 simply confirms the view that the proposals which will in time further restrict the AIRC discretion in relation to junior rates and age discrimination questions, are quite unnecessary.

Role of AIRC

The authors of the AIRC Report assert that, subject to addressing present legislative constraints and uncertainties, the role of the Commission should be to balance in a practical way two conflicting objectives. As the Report argues:

The task is to get right the balance between classification options and two objectives:

  • equal opportunity taking account of the competitive disadvantage in employment of school-leavers, teenagers and young employees;
  • equality of treatment in employment for all employees taking account of skills, responsibilities, experience and performance.(35)

To quote the Report's Summary:

Junior rate classifications and non-discriminatory alternative classifications are the poles between which an assessment of relative desirability must be made.(36)

This task, the AIRC Report argues, is not a task that can be conducted in a 'abstract' way but is more suited to a case by case approach.(37)

The Bill proposes that the Commission must never have regard to the specific provisions in the Workplace Relations Act prohibiting age discrimination in determining junior rates.

In effect, the balance between the two public policy objectives (the objective of addressing the competitive position of young workers and the objective of promoting equality of treatment amongst workers) are taken out of the hands of the industrial umpire.

This writer's reading of the AIRC's Report is that the Commission would not favour such an approach, probably regarding it as overly prescriptive.

Moreover, from the tenor of the AIRC Report, it seems most unlikely that the Commission would embark on a wholesale dismantling of junior rates even if it were free to do so. Indeed, having noted that 'abolition' of junior rates is not an express requirement of the expiry of the present exemption provided by paragraphs 143(1D)(a) and 170LU(6)(a) of the Workplace Relations Act, the AIRC notes that the Commission has never arbitrated the removal of a junior rate.(38)

Endnotes

  1. Copies of all Digests are available at http://www.aph.gov.au/library/pubs/bd/

  2. 'Junior wage rates' are classifications in industrial awards or agreements for employees aged less than 21.

  3. Australian Industrial Relations Commission, 'Junior Rates Inquiry', Report of the Full Bench Inquiring Under Section 120B of the Workplace Relations Act 1996 (the AIRC Report), 4 June 1999.

  4. ibid., p 8.

  5. ibid., p 7.

  6. ibid., p 8.

  7. ibid., p ix.

  8. Workforce, Issue 1215, 25 June 1999, p 6.

  9. Hon Peter Reith, Parliamentary Debates, House of Representatives, 24 June 1999, pp 7375-7379

  10. AIRC Report, op cit, p 151.

  11. ibid., p 154.

  12. ibid., p 159.

  13. ibid., p 165.

  14. ibid, p xii.

  15. ibid., pp xv and 176-177 and 197.

  16. ibid., p 38.

  17. ibid., pp 9-10.

  18. ibid., p 17.

  19. ibid., pp 67-69.

  20. ibid., pp x-xi.

  21. The provisions dealing with age discrimination were not a Keating Government proposal as is suggested by Minister Reith in his tabling statement of 24 June 1999. Hon Peter Reith, Parliamentary Debates, House of Representatives, 24 June 1999, pp 7375-7379, p 7375.

  22. AIRC Report, op cit, pp 89-90 and 277-280.

  23. ibid., pp 89-91.

  24. ibid., pp 165-166, 88-89 and 305

  25. ibid., pp 88-89.

  26. Hon Peter Reith, Parliamentary Debates, House of Representatives, 24 June 1999, pp 7490-7492.

  27. Hon Peter Reith, Parliamentary Debates, House of Representatives, 24 June 1999, pp 7375-7379, at p 7378.

  28. AIRC Report, op cit, p 91.

  29. Victoria v the Commonwealth (1975) 134 CLR 81.

  30. Although the AIRC may, as noted above, extend it on a case by case basis.

  31. The so called 'Five Economist's Plan' is an example of a policy prescription that seeks to incorporate a range of theoretical approaches to the development of policy. Professor Peter Dawkins, Professor John Freebairn, Professor Ross Garnaut, Dr Michael Keating and Mr Chris Richardson, 'Dear John: how to create more jobs', The Australian, 26 October 1998, p 13. See also Ross Gittins, 'In the five economist's plan, the compromise is golden', The Age, 7 November 1998, page B3, for a discussion of the theoretical cross currents.

  32. Bills Digest No.60 of 1998-99, pp 1-2.

  33. ABS, Labour Force (Preliminary), Catalogue No.6202, 12 November 1998, p 10. 

  34. Australian Bureau of Statistics, Labour Force Preliminary, July 1999, Cat No. 6202.), p 10.

  35. AIRC, op cit, pp xiii and 140-141.

  36. ibid., p xii.

  37. ibid., pp 88-89 and 140.

  38. ibid., pp 165-166.

Contact Officer and Copyright Details

Bob Bennett
25 August 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

Back to top


Facebook LinkedIn Twitter Add | Email Print