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Workplace relations featured as a key issue
in the 2007 federal election campaign. The campaign of the Australian
Council of Trade Unions against the Howard Government’s ‘Work
Choices’ legislation was unprecedented in terms of organised
campaigning by the union movement.
The current structure of the Workplace
Relations Act 1996 (amended by the ‘Work Choices’ Act)
is the framework determining workplace law as the 42nd Parliament
begins, and is likely to be in place for some time. Therefore,
it is useful to understand its key elements, including the following:
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Australian Fair Pay and Conditions Standard (AFPCS): This
standard underpins agreements made by employers with their
employees. Whether an agreement is registered or not, it
must not derogate from the AFPCS. Where an employee has
been employed under the terms of an award, the award’s pay
rates constitute an initial reference point for wage determination.
Award pay rates no longer function as such, as they have
become part of the AFPCS via mechanisms called Pay
and Classification Scales. Where an employee has not
been employed under an award, the minimum wage of $522.10
a week applies as a base wage rate under any employment
agreement. The AFPCS also provides for: annual leave at
four weeks (five weeks’ leave for continuous shift-workers),
personal leave of up to ten days plus compassionate leave
of two days, unpaid parental leave of up to 12 months, and
ordinary weekly hours at 38 per week.
- Minimum entitlements: Employees are entitled to time off
for seven ‘iconic’ public holidays per year, a 30-minute rest
break after five hours’ work and a termination of employment
remedy where the employee is dismissed. Access to remedies
for dismissals seen to be ‘unfair’ are qualified on several
criteria pertaining to the status of the employee, most notably
whether the employee is employed in a business of 100 employees
or more, and has not been dismissed for genuine ‘operational
reasons’.
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Agreements: The Act facilitates the making of agreements
between single employees and an employer under Australian
Workplace Agreements (AWAs). It also facilitates: union
collective agreements, employee collective agreements, union-greenfield
agreements and employer-greenfield agreements. These agreements
must meet the conditions of the AFPCS and be filed with
the Workplace Authority (WA). Most AWAs and collective agreements
filed after 7 May 2007 must be assessed against a fairness
test by the WA. All agreements are subject to restrictive
prohibited
content stipulations.
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Awards: With the incorporation of state awards into the
federal jurisdiction, there are 4300. In addition, there
are 1500 ‘transitional’ awards that will continue until
April 2011. Awards are to be simplified in their content
to reflect allowable
award matters. Awards are to be rationalised to around
100 awards. Employees working under awards as at 27 March
2006 are entitled to additional award matters not listed
as allowable (for example, redundancy pay and long service
leave); these are called preserved
award matters. Finally, protected
award matters are those terms applying to an award-covered
employee who enters into a workplace agreement. Penalty
rates, shift and overtime loadings, monetary allowances,
annual leave loading, public holidays, rest breaks, and
incentive-based payments should be reflected in the contents
of the agreement unless specifically traded off and compensated
under the fairness test. Award provisions addressing the
same five matters as prescribed in the AFPCS are displaced
by the AFPCS unless the award provision is seen to be more
generous than the AFPCS.
Other current workplace relations legislation
pertains to independent contractors and the building and construction
industry.
Transitional Bill
The Australian Labor Party’s Forward with
Fairness—Policy Implementation Plan proposes the tabling
of a ‘Transition’ Bill in early 2008. The Bill will provide
for a replacement AFPCS based on a ten-point safety net and
AWA transitional arrangements. The safety net will not take
effect until 2010; and neither will other aspects of the earlier
Forward with Fairness policy, such as exempting employees
who earn over $100 000 from awards. In the interim, the
purpose of ‘introducing’ the broader safety net is to inform
and assist the Australian Industrial Relations Commission in
rationalising and simplifying industrial awards over 2008–09.
The new safety net will address: standard
hours of work (38 hours); parental leave (24 months unpaid);
flexible work for parents; annual leave (four weeks; five weeks
for shift-workers); personal/carers’ leave (ten days paid; two
days paid compassionate leave and an additional two days unpaid
leave); community service leave (jury service or emergency service
leave); eight public holidays plus extra holidays depending
on state/territory; provision of information in the workplace;
unfair dismissal remedies for employees with six months’ service
(12 months for employees in businesses of 15 or fewer employees);
redundancy pay in line with the AIRC’s 2004 standard (but excluding
small businesses); and long-service leave based on federal and
state entitlements.
In terms of transitional arrangements for
AWAs, the making of new AWAs will terminate. Existing AWAs will
carry on to their nominal expiry date or up to December 2012.
In their place, ‘Individual Transitional Employment Agreements’
must meet any applicable collective agreement or the relevant
award and AFPCS to be approved.
Library documents
Workplace
Relation Amendment (Work Choices) Bill 2005, Bills Digest,
no. 66, Parliamentary Library, Canberra, 2005–06.
Workplace
Relations Amendment (A Stronger Safety Net) Bill 2007, Bills
Digest, no. 181, Parliamentary Library, Canberra, 2006–07.
Documentation
Kevin Rudd and Julia Gillard, Forward
with Fairness: Policy Implementation Plan, Australian
Labor Party, August 2007.
Andrew Stewart, ‘Work
Choices in overview: big bang or slow burn?’, The Economic
and Labour Relations Review, vol. 16, no. 2, May 2006.
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