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
Contact Officer & Copyright Details
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
Commencement: The substantive provisions of the
Bill commence 28 days after the day on which the Act receives Royal
Note: This Digest complements Bills Digest
No.60 of 1998-99 issued on 2 December 1998.(1)
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
- 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.
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
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
- the relevance of international labour standards and practice to
- 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
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
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 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)
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
- the content and meaning of the Principal Acts.
Observations and Findings
In commenting on the AIRC Report,
Workforce, an independent weekly newsletter on industrial
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
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
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
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.
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
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
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
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
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
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
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 of the Australian Constitution deals
with deadlocks between the two Houses and relevantly provides
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
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
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'.
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
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
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
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
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
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
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
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
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
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
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
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
- 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
- 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:
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
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
- equality of treatment in employment for all employees taking
account of skills, responsibilities, experience and
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
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
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)
- Copies of all Digests are available at http://www.aph.gov.au/library/pubs/bd/
- 'Junior wage rates' are classifications in industrial awards or
agreements for employees aged less than 21.
- 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
- ibid., p 8.
- ibid., p 7.
- ibid., p 8.
- ibid., p ix.
- Workforce, Issue 1215, 25 June 1999, p 6.
- Hon Peter Reith, Parliamentary Debates, House of
Representatives, 24 June 1999, pp 7375-7379
- AIRC Report, op cit, p 151.
- ibid., p 154.
- ibid., p 159.
- ibid., p 165.
- ibid, p xii.
- ibid., pp xv and 176-177 and 197.
- ibid., p 38.
- ibid., pp 9-10.
- ibid., p 17.
- ibid., pp 67-69.
- ibid., pp x-xi.
- 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.
- AIRC Report, op cit, pp 89-90 and 277-280.
- ibid., pp 89-91.
- ibid., pp 165-166, 88-89 and 305
- ibid., pp 88-89.
- Hon Peter Reith, Parliamentary Debates, House of
Representatives, 24 June 1999, pp 7490-7492.
- Hon Peter Reith, Parliamentary Debates, House of
Representatives, 24 June 1999, pp 7375-7379, at p 7378.
- AIRC Report, op cit, p 91.
- Victoria v the Commonwealth (1975) 134 CLR 81.
- Although the AIRC may, as noted above, extend it on a case by
- 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.
- Bills Digest No.60 of 1998-99, pp 1-2.
- ABS, Labour Force (Preliminary), Catalogue No.6202, 12
November 1998, p 10.
- Australian Bureau of Statistics, Labour Force
Preliminary, July 1999, Cat No. 6202.), p 10.
- AIRC, op cit, pp xiii and 140-141.
- ibid., p xii.
- ibid., pp 88-89 and 140.
- ibid., pp 165-166.
25 August 1999
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