Bills Digest no. 181 2006–07
Workplace Relations Amendment (A Stronger Safety Net)
Bill 2007
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
Financial implications
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Workplace Relations Amendment (A
Stronger Safety Net) Bill 2007
Date introduced: 28 May 2007
House: House of Representatives
Portfolio: Employment and Workplace
Relations
Commencement: The formal provisions (clauses 1
to 3) commence on Royal Assent. The substantive provisions
(Schedules 1, 2 and 3) commence six months after Royal Assent
unless commenced earlier by proclamation. However, many of the
provisions have retrospective effect from 7 May 2007.
The Bill amends
the Workplace Relations Act 1996 (WR Act) to establish a
fairness test for workplace agreements and to establish two new
statutory agencies the Workplace Authority and the Workplace
Ombudsman.
On 4 May 2007, the
Prime Minister, the Hon. John Howard, and the Minister for
Employment and Workplace Relations, the Hon. Joe Hockey, announced
significant changes to the agreement-making operation of the
Workplace Relations Act 1996. Effective from 7 May 2007, a
fairness test would be introduced and would apply to certain
collective agreements and Australian Workplace Agreements
(AWAs).
This Bill introduces these amendments, as well
as related amendments providing a prohibition on:
- dismissing or threatening to dismiss a worker because an
agreement fails or may fail the fairness test, or
- coercing an employee to agree to the modification or removal of
a protected award condition.
A prohibition against AWA duress will apply
where an employer who has purchased a business requires an employee
to sign an AWA as a condition of ongoing employment with the
business.
The Bill s provisions also establish the
Workplace Authority and the Workplace Ombudsman. In addition, the
Government has moved amendments to this Bill which will allow for
the on-going registration of organisations which may not otherwise
satisfy the existing registration criteria (from 27 March 2009).
Also, tougher freedom of association and non association provisions
are introduced with the purpose of relocating the ban on union
bargaining fees from the Regulations to the main body of the WR
Act.
However, as the fairness test is the
centrepiece of the Bill, it is useful to review the role of the no
disadvantage test. The ways in which workplace agreements were
approved in the 1980s, and the move towards Labor s no disadvantage
tests (1992 93), are reviewed. Then the proposed test under the
initial Workplace Relations and Other Legislation Amendment Bill
1996 (WROLA Bill), and the form of the test adopted following
Senate negotiations to pass that Bill, are covered. The Digest then
reviews the operation of the no disadvantage test in practice, in
respect of the approval of Australian Workplace Agreements by the
Office of the Employment Advocate in the pre-Work-Choices system.
Finally an outline of the proposed fairness test facilitated by
this Bill is canvassed.
The Conciliation and Arbitration Act
1904, at the time of its repeal in 1988, provided for
certified agreements and consent awards (both under section 28).
The 1983 Prices and Incomes Accord of the ALP and the Australian
Council of Trade Unions (ACTU), inter alia, sought changes to the
operation of the then Conciliation and Arbitration Commission s
wage guidelines in the second half of the 1980s, in effect seeking
the Commission s endorsement of wages and conditions arrangements
and approval of changes to work arrangements at the enterprise
level in order to secure wage increases. The incoming
Industrial Relations Act 1988 continued certified
agreements (section 115) but also introduced a separate Consent
Awards provision (section 112). The reason for these changes was
explained:
In order to allow the greatest possible
flexibility, yet avoid the undesirable outcomes of a totally
decentralised system, the Bill provides for both the currently
available consent awards and for fixed term, non-variable binding
agreements which will be certified by the Commission. Such
agreements differ from the current consent award provisions in that
they will have a specified life, after which they will lapse, and
will not be able to be varied during that period
(1).
However, discretion to approve or not approve
these arrangements rested with the Australian Industrial Relations
Commission (AIRC), subject to its finding that the
agreement/consent award was not contrary to the public interest.
The Keating Government sought to reduce this discretion, and in
doing so, introduced statutory guidelines on the approval of
enterprise agreements (certified agreements) in 1992 and 1993. In
1992 the no disadvantage test was specified in the following
outline:
The circumstances in which the Commission may find
that an agreement will disadvantage employees are specified. It
must first consider whether certification would result in the
reduction of employment entitlements and protections for employees
covered by the agreement, under an award or under any other law
that the Commission considers relevant. If it judges that such a
reduction would occur, it must consider whether or not the
reduction is contrary to the public interest, in the context of the
terms and conditions of those employees considered as a
whole.(2)
However this test was relaxed in the following
year. Minister Brereton explained the new test in these terms:
The No Disadvantage Test has been an important
innovation. Applying as it does to the overall package of employee
entitlements, it allows for a wide range of variations to award
conditions. It also allows for agreed reductions if these are
judged not to be against the public interest, for example, as part
of a strategy for dealing with a short-term business crisis and
revival. However, as the government has consistently stressed, the
provision is intended to protect well established and accepted
standards which apply across the community, standards such as
maternity leave, hours of work, parental leave, minimum rates of
pay, termination change and redundancy provisions and
superannuation.(3)
The new no disadvantage scheme was soon tested
in the Tweed Valley Fruit Processors case. An Enterprise
Flexibility Agreement, initially approved by the AIRC, sought to
modify/remove conditions in the following areas:
- public holidays had been reduced from 12 to 9
- hours of work had been increased from 38 to 40
- no provision for paid sick leave and no specific entitlement to
unpaid sick leave
- non-team members received a 10 per cent allowance for afternoon
shift and 20 per cent for night, but team members received no
allowances in return for receiving a higher rate of pay (under the
award, all employees received a 15 per cent allowance for afternoon
shift and 30 per cent for night shift)
- all overtime was to be paid at time and a half, whereas under
the award it was paid at time and a half for the first three hours
and double time thereafter, with double time for all Saturday
afternoon and Sunday work
- junior employees were defined as employees under 19 years of
age whereas the award defined them as employees under 18 years of
age. Junior employees would receive 70 per cent of the adult wage
rate (under the award, they received 75 per cent)
- there was no mixed-functions clause in the agreement
- payment for call-outs was at the overtime rate with a minimum
of two hours pay (the award provided a minimum of four hours
pay)
- jury-service leave and bereavement leave could only be taken as
unpaid leave or as part of annual leave
- no right of entry for union officials
- no casual loading
- three months probationary period (one week under the award),
during which an employee could be terminated at one hour s
notice
- spread of ordinary hours from 5am 7pm (6am 6pm under the
award)
- no annual leave loading
- no provision for redundancy pay, and
- no allowances paid, since they were said to have been taken
into account when calculating wage rates set out in the
agreement.(4)
These reductions were offset by a higher wage,
a productivity bonus and an attendance bonus. A Full Bench of the
AIRC overturned the Tweed Valley EFA on the basis that the then no
disadvantage test was intended to protect established and accepted
community standards, and the superior conditions offered as an
offset were either hard to quantify or nebulous. The Full Bench
decision in effect confirmed that the basic safety net of award
conditions would stand.
As introduced in May 1996, the Howard
Government s WROLA Bill proposed replacing the no disadvantage test
with a no less favourable test. This test was proposed to be an
assessment of the agreement against statutory minima, with the wage
rate being derived from employees relevant or designated award and
other entitlements subject to the proposed statutory prescription.
These minima were:
- wages over a period no less than the wages that would have been
earned over the period under the award
- no less than four weeks recreation leave with pay each
year
- no less than 12 days of personal/carer s leave with pay each
year if the employee is sick, is caring for a family or household
member or is absent because of death of such a member
- no less than 52 weeks of parental leave or adoption leave
without pay after 12 months continuous service
- long service leave on terms and conditions that are no less
than those that would otherwise apply
- equal pay for work of equal value without discrimination on the
ground of sex, and
- payment for jury service no less than the difference between
the amount payable under the agreement for the period of absence
and any amount payable by the court.
In his Second Reading Speech to the WROLA
Bill, the Hon. Peter Reith claimed:
The Bill rejects the highly paternalistic
presumption that has underpinned the industrial relations system in
this country for too long that employees are not only incapable of
protecting their own interests, but even of understanding them,
without the compulsory involvement of unions and industrial
tribunals
Prior to certification, the commission will test
[collective] agreements to ensure the statutory minima are met. In
that regard, as is the case with Labor s No Disadvantage Test, the
minimum pay guarantee may be satisfied on a collective basis In
agreements with cashed-up penalty rates and annualised salaries,
for example, the minimum pay requirement will be satisfied if
earnings under the agreement at least match what could reasonably
be expected to have otherwise applied under the award at the time
of certification. There would be no ongoing test against the
statutory minima, unless provided for by the
agreement.(5)
Minister Reith s speech and its rejection of
the so called paternalistic approach appears to be set in terms
which today might be seen in contrast with the reality of direct
employer employee relations. Indeed the new fairness test seeks to
remedy the sharp edge of the employer employee relationship by
interposing both a standard (or at least, evidence of offsets) and
a third party to apply it the Workplace Authority.
This proposal was not enacted, although there
are some overtones between this 1996 proposal and the fairness test
contained in the current Bill. Instead, the Reith proposal was
subject to amendment after an agreement between the Coalition and
the Australian Democrats to pass the WROLA Bill. A new no
disadvantage test was to apply both to Australian Workplace
Agreements and certified agreements. The new test was described
thus:
To approve the AWA (and/or any variations to it),
the EA would need to be in no doubt that the proposed agreement is
no less favourable to employee(s) concerned, when considered as a
whole, than the relevant award. This will be a global rather than a
line-by-line no disadvantage test. A global test does not preclude
line-by-line consideration of reductions and increases in
entitlements or protections, in fact it requires such an assessment
to form a judgement of whether all increases and reductions, when
considered as a whole, result in no overall disadvantage
Before certifying an agreement, the AIRC will be
required to satisfy itself that the proposed agreement is no less
favourable to the employees concerned, when considered as a whole,
than the relevant award. This will be a global rather than a
line-by-line no disadvantage test. A global test does not preclude
line-by-line consideration of reductions and increases in
entitlements or protections, in fact it requires such an assessment
to form a judgement of whether all increases and reductions, when
considered as a whole, result in no overall
disadvantage.(6)
The resulting no disadvantage test applying to
both certified agreements and AWAs was found at sections 170X XF
(prior to 27 March 2006). Forsyth and Sunderland have summarised
the sequential weakening of the no disadvantage test:
In 1996, the No Disadvantage Test was further
weakened by providing that agreements be measured against any
relevant award or law on a global basis to ensure that employees
were no worse off overall. Even where employees would be
disadvantaged by an agreement, it could still be certified if this
was not contrary to the public interest ; for example, if the
agreement formed part of a strategy to deal with a short-term
crisis in the relevant business. Overall, the gradual erosion of
the No Disadvantage Test since its introduction in 1992 has led to
increasing criticism of its effectiveness as a mechanism for
protecting employees working conditions in the transition to
enterprise bargaining.(7)
Against this backdrop, it is useful to note
the method which was used to assess agreements (AWAs) prior to Work
Choices. The method which the OEA (Office of the Employment
Advocate) used was explained to a Senate Estimates Committee by the
Employment Advocate, Peter McIlwain:
To
conduct the no disadvantage test we used a tool that had been
developed over nine years called the NDT calculator the no
disadvantage test calculator. That was a spreadsheet tool. I believe it was an Excel spreadsheet. It allowed conditions in the form
of values to be entered in a double ledger arrangement, with the
AWA on one side and the conditions of the relevant award on the
other side. It operated as a double-entry ledger and produced a
result that was either neutral, positive or negative. The neutral
and positive results were strong evidence that the agreement met
the no disadvantage test, but other factors might be taken into
account. A negative result was evidence that the agreement, at
first assessment, did not meet the no disadvantage test and would
require further investigation, often leading to a requirement by me
for the employer to provide an undertaking to increase the overall
benefit of that agreement in one form or another. There was a
specific provision in the legislation that allowed me to approve an
AWA where an undertaking, so described, was provided by the
employer. [ ] in the last 12 months or so, approximately 14 per
cent of AWAs required an undertaking of that kind before they could
be approved.
The no disadvantage test calculator was a tool. It
was not used in an automatic way but it provided very useful
information to the delegate as to the overall monetary value of the
conditions provided by the AWA, allowing a consistent approach to
the comparison that had to take place under the legislation with
the relevant award and relevant laws. So, in short, that is how an
NDT was conducted. NDTs were conducted by 140 delegates in the OEA
in all regional offices and in our national office. Where an NDT
had been conducted for an agreement that was in substantially the
same terms or identical, previously the NDT could be applied to the
agreement that was in identical or substantially the same terms.
Our system recorded the NDT used for every AWA that passed through
the OEA for filing and approval.(8)
Where the Employment Advocate considered that
an AWA failed the no disadvantage test, the AWA would be referred
to the AIRC for its consideration (formerly at section 170VPH). It
might be noted that an academic analysis by Mitchell et al. of the
pre-Work Choices no disadvantage test found that the OEA s use of a
template/spreadsheet to calculate the benefits/losses of an
agreement against an award appeared to be preferable to the method
which the AIRC used to conduct a similar test in respect of
certified agreements.(9) On the negative side, Mitchell
et al. also found that many employees had suffered the loss of a
clearly-defined working week, with a consequence to personal and
family life. Many suffered a loss of control as to when they could
take annual holidays. Others no longer had any control or
discretion over the nature of their job duties and functions. They
concluded:
enterprise bargaining has brought about a
deterioration in the quality of working life of substantial
proportions, compensated for, in many instances, by small or
non-existent pay increases.(10)
Mitchell et al. also found that in entering
into the former section-170LK (non-union) agreements and AWAs,
employees were, in most cases, being dispossessed of protective
power to offset against the employer s managerial discretion.
Agreements considerably extended the employer s power on such
matters as the scheduling of work, the definition of job duties and
functions and so on, without the need for consultation with
employees or unions.(11)
It is useful to note that the pre-Work Choices
no disadvantage test was a global test against a relevant or
designated award. An agreement that failed the no disadvantage test
may still, however, have been approved if it could be shown not to
be against the public interest. Also, the AIRC had powers to
improve the safety net for example, it extended the years of
service counted toward an employee s redundancy pay in medium or
large size businesses. These powers have been lost under Work
Choices. It is important to enumerate the then-allowable award
matters, formerly provided as a Safety Net
of Minimum Conditions under section 89A(2):
- Classifications of employees
- Ordinary time hours of work and the spread of hours within
which ordinary time hours could be worked
- Rates of pay, which could be expressed as hourly rates and
annual salaries. Separate rates of pay for trainees, juniors and
apprentices could be included
- Piece rates, tallies and bonuses
- Annual leave and leave loadings
- Long service leave entitlements
- Personal/carer s leave
- parental leave, including maternity and adoption leave
- Public holidays
- Allowances
- Overtime, casual and shift-work loadings
- Penalty rates
- Redundancy pay
- Specific periods of termination
- Stand-down provisions
- Dispute-settlement procedures
- Payment for jury service
- Provision for different types of employment, for example
casual, regular part-time, shift work
- Superannuation
- Outworkers
- Skill-based career paths
This then was the method of assessing AWAs
against the no disadvantage test based on the then-allowable award
matters. The procedures appear very systematic, almost foolproof.
Yet despite this procedure being carried out, pre-Work Choices AWAs
have been found not to have met the relevant award standards. In a
notable case on AWAs applying in the South Australian retail bakery
industry, the South Australian Industrial Relations Court found
that more than 50 AWAs had been approved in the same terms as one
that paid an Adelaide school student 25 per cent less than her
minimum award entitlement, based on a two-page pattern AWA which
bought out annual leave, annual leave loading and sick leave. That
the one employee was able to have her pay reviewed by the court
hinged on the employer not having complied correctly with the then
AWA filing requirements.(12)
Agreement-making under the WR Act has been
changed by the Work Choices legislation.(13) Agreements
no longer need to be certified and the no disadvantage test
described above has been abolished. All agreements (both AWAs and
collective agreements) are lodged with the Employment Advocate. A
new simplified lodgement process for agreement-making essentially
removes up-front scrutiny of workplace agreements, and the overall
system rests on a post-lodgement penalty regime.
A set of minimum standards comprise the
Australian Fair Pay and Conditions Standard (AFPCS). The AFPCS sets
out minimum entitlements relating to: wages and casual loadings,
ordinary hours of work and three types of leave (annual, personal
and parental), as well as an ability to refuse work on a public
holiday depending on personal/family circumstance, and a break from
work after five hours. The standards that form part of the AFPCS
may be displaced by a workplace agreement or by individual
contract, but only where the provisions in question are more
favourable to employees (sections
172 and
173). Existing terms in awards or notional agreements (former
state awards) that contain more favourable provisions on annual,
personal or parental leave still apply.
Protected award conditions such as rest
breaks, annual leave loadings, public holidays, penalty rates and
loadings for overtime or shift work are included in the workplace
agreement unless the agreement specifically excludes or modifies
them.(14) This protection assumes that the employer is
bound by an award. Prohibited content or matters subject to
regulation are excluded from agreements.
Protected
allowable award matters are specified under the Act at
section 354. These are:
- rest breaks
- incentive-based payments and bonuses
- annual leave loadings
- 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 paragraph
- monetary allowances for:
- expenses incurred in the course of employment; or
- responsibilities or skills that are not taken into account in
rates of pay for employees; or
- 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
- outworker conditions
- any other matter specified in the regulations.
The purpose of the fairness test is to assess
whether employees receive fair compensation for any protected award
conditions that have been removed from their workplace
agreements.
Previously, a workplace agreement could
exclude or modify protected award conditions by express provision
and without the need for any compensation.
Since the statement by the Prime Minister on
the fairness test (4 May 2007), the Department of Employment and
Workplace Relations has provided the following guide on how the
fairness test is to work in practice:
Australia s workplace relations system has a set
of rules and obligations that all employers are required, by law,
to comply with.
No one can be forced to sign an agreement.
Any agreement signed by an employee aged under 18
must also be signed by a parent or guardian.
Other obligations include:
Minimum wages
Working hours
Four weeks paid annual leave
Ten days paid sick leave
One year unpaid maternity leave.
The Workplace Authority
The Workplace Authority, previously known as the
Office of the Employment Advocate, will check agreements against a
Fairness Test to make sure you get a fair deal. If an agreement
doesn t pass the Fairness Test, it will need to be changed so that
it is fair and the employer will have to make up any back pay.
The Workplace Ombudsman
The Workplace Ombudsman, previously known as the
Office of Workplace Services, will investigate and prosecute
employers who break the law. The Workplace Ombudsman will provide
additional protection for employees and will take on a greater role
in ensuring that employers comply with their legal obligations.
The Fairness Test
The Fairness Test applies to employees covered by
an Australian Workplace Agreement and earning under $75 000 a year
who have had protected award conditions removed or changed in an
agreement. This includes the following award conditions:
Penalty rates
Shift and overtime loadings
Monetary allowances
Annual leave loadings
Public holidays
Rest breaks and
Incentive based payments and bonuses.
The Fairness Test also applies to all collective
agreements which remove or change protected award conditions.
Employees must receive fair compensation for
changes to these conditions and payments.
In most cases this will mean a higher rate of
pay.
In establishing what is fair compensation, like
the old no-disadvantage test, the Workplace Authority will consider
the work obligations of the employee, for instance, whether the
employee would be required to work shift work or at weekends.
The Fairness Test applies to all workplace
agreements lodged on or after Monday 7 May 2007.
Agreements made before this date will not change.
As an additional protection for workers, employers
will not be able to dismiss an employee because their agreement
does not meet the Fairness Test. An employer must also not force an
existing employee to agree to remove or vary a protected award
condition.
Who will conduct the Fairness Test?
The Fairness Test will be conducted by the
Workplace Authority. The Workplace Authority is the number one
contact point for people to receive straightforward information and
advice on workplace relations, including agreements.
Employers are encouraged to request a Fairness
Test pre-lodgement review of their workplace agreements. This will
assist people to make fair and clear agreements from the start.
Where an agreement fails the Fairness Test, back
pay must be paid to the employee.(15)
Workplace agreements lodged prior to 7 May
2007 will not be required to meet the fairness test. Prima facie,
the test appears to operate in a similar way to the pre-Work
Choices no disadvantage test, albeit as assessed against fewer
award provisions. Not all award conditions will be considered under
the fairness test only protected conditions which have been
modified or removed in the workplace agreement. Redundancy
provisions in awards, for example, are not defined as protected
allowable award matters .
Two releases of information about the content
of Work Choices AWAs appear to have precipitated the need to
reverse the post-lodgement approach to scrutiny of workplace
agreements.
The first of these was revealed to a Senate
Estimates Committee on 29 May 2006. There the OEA advised that of
250 Work Choices AWAs filed in the first month of operation, 16 per
cent had expressly excluded all protected award
conditions.
In other cases, the award provisions most
often removed from AWAs were:
- leave loading (64 per cent of AWAs)
- penalty rates (63 per cent)
- shiftwork loading (52 per cent) and
- public holidays (41 per cent)
78 per cent of AWAs provided for a pay rise
during their life (up to five years) and 22 per cent did not
provide for any rise.
Protected award conditions most often modified
were:
- overtime loading (31 per cent of AWAs)
- rest breaks (29 per cent) and
- public-holiday payments (27 per cent).
The OEA also advised the Estimates Committee
that while it was sufficient for AWAs to include a single sentence
excluding all protected conditions, an alternative form of words
was preferred, such as: for the avoidance of doubt, the following
protected conditions are excluded , then list the excluded
provisions.(16) There could be some prevalence of such
instruments, for example, in the labour-hire and recruitment
industries, where AWAs may stipulate actual employment conditions
for on-hired workers, or may not.(17)
The second release of information concerning
Work Choices AWA content appeared courtesy of the media. It was
reported that OEA staff had analysed the content of 5,250 Work
Choices AWAs. It was reported that 45 per cent removed all
protected award conditions. About 27 per cent of these AWAs may
have violated the more favourable test by undercutting the AFPCS.
Shift loadings were removed in 76 per cent of the agreements,
annual leave loading was removed in 59 per cent, incentive payments
and bonuses were removed in 70 per cent, and declared public
holidays were removed in 22.5 per cent.(18) Ultimately,
it has been the effects of these releases, in concert with the ACTU
s anti-Work Choices advertising campaign, which have swayed the
Government to amend the WR Act, or as Minister Hockey admitted: the
Government got it wrong on removing the previous no disadvantage
test.(19)
The Employment Advocate updated AWA lodgement
numbers for the Senate Employment Committee on 28 May 2007. There
were 747,0000 AWAs in operation at 31 March 2007, which according
to the Employment Advocate, using Australian Bureau of Statistics
(ABS) figures, would cover 8.4 per cent of the workforce. This is
much higher than the ABS s figure of 3 per cent of employees on
AWAs based on its survey in May 2006.(20)
The OEA had looked at a sample of 3250 AWAs
for compliance with the AFPCS, but could not determine whether more
than half (1700) were lawful; these had been referred to the
OWS.(21)
Major issues with the fairness test identified
by the ACTU include:
- It does not apply to workers on existing AWA individual
contracts. This means that 300,000 workers on AWA individual
contracts registered under the Work Choices laws will not get back
penalty rates, shift and overtime loadings, public holidays and
public-holiday pay, rest breaks, annual leave loadings, allowances,
and incentives and bonuses that have been lost under the new
laws.
- It does not ensure that workers receive fair pay rises. Pay
rises are not included in the fairness test only award conditions.
Government data shows that one in three AWAs (33.9 per cent)
provide no wage rise for the life of the contracts some for up to
five years and a further 42.1 per cent of AWAs only offer a wage
rise that is dependent on various criteria being met. This leaves
three quarters of AWAs without any guaranteed pay rise a situation
that will not alter.
- It does not ensure workers receive financial compensation for
the loss of award conditions. The fairness test will allow
employers to trade-off penalty rates, overtime and other award
conditions for non-monetary compensation (proposed section
346M(2)(a) and (7)). This will allow employers, as in the past
under the previous so-called no disadvantage test, to give workers
free pizzas or videos or potentially tips in exchange for the loss
of entitlements. Even the ability of working parents to work night
shift could be regarded as an example of flexibility that would
constitute non-monetary compensation for the loss of penalty
rates.
- Young people, unemployed people, sole parents and disabled
people wanting work are not protected. Employers are given a broad
exemption from providing compensation for the loss of award
conditions on the basis of other factors such as the specific
employment circumstances or opportunities of the employee .
- Workers in a range of competitive industries are not protected.
Employers are exempt from providing compensation for the loss of
award conditions if they can show that, to remain competitive in
their industry, they need to cut the pay and conditions of their
workers.
- Any employer that is in difficult economic circumstances need
not provide compensation. The new fairness test has a catch-all
loophole that allows the new Workplace Authority to take into
account the employer s economic circumstances when determining
compensation for the loss of award conditions.
- Workers in regional and country areas are not protected under
the fairness test. Employers can also seek an exemption from
providing compensation for the loss of award conditions on the
basis of their location . This will disadvantage workers in areas
where job opportunities are low.
- Workers on incomes over $75 000 a year are not protected. The
test provides a blanket exemption for employees on wages of $75 000
a year or more. ABS data shows this will exclude 1.2 million
workers.
- Redundancy pay and other key conditions are not protected. The
test does not apply to redundancy pay, ceremonial leave, leave to
seek alternative employment, and preserved award matters such as
long service leave, additional annual leave, sick leave, paid
parental leave and so forth.
- There is no obligation for employees to be contacted to verify
employer s claims. The new Workplace Authority can contact the
employer or the employee or both to ascertain further information,
for example, what are the employees usual rostered hours. However,
there is no obligation to confirm with the employee(s) information
provided by the employer.
- Penalty rates were historically used to compensate workers for
working unsociable hours, and as a disincentive for employers to
cut into family time by rostering workers outside normal hours.
Now, when all you have to do is buy your workers a pizza or give
them a car spot, there is no such disincentive, and family time
will be further eaten away.(22)
The ACTU has also claimed that workers wanting
to challenge a fairness-test ruling by the Workplace Authority
would have to go to the High Court, and only on the grounds that
there had been a legal mistake, not on the fairness of the
decision.(23)
Representing 350,000 businesses, ACCI has been
very critical of the proposed changes, arguing that they were
unwarranted and would add to business red tape. ACCI CEO Peter
Hendy said the government appeared to have responded to a scare
campaign based on misleading information, and complained that the
changes would mean more red tape for business:
We don t think there s a reason to do these
changes. [ ] The government appears to be directly responding to
community unease that has been created by a scare campaign, but
that scare campaign is not rooted in fact. It s based on misleading
statements, and there is no systemic abuse of AWAs in this
system.(24)
On the other hand, the Business
Council of Australia said the changes would not have a great impact
on the Work Choices framework. Council of Small Business
Organisations of Australia chief executive Tony Steven is reported
as saying that although some members would be disappointed with the
changes, there was still sufficient incentive for employers to
consider looking at workplace agreements. (25)One of
ACCI s member groups, the NSW Business Chamber, considers that a
fairness test would strengthen confidence in individual
agreement-making. Provided the test was applied in a simple and
timely manner, it should not hinder businesses that undertook
individual agreements.(26)
David Peetz, Professor of
Industrial Relations, Griffith Business School
In a recent address, Professor David Peetz
argued that, for the fairness test to be effective, the rate of AWA
lodgement would have to fall. He noted that when the no
disadvantage test was removed (27 March 2006), AWA lodgements
increased from 50,000 per quarter to 95,000. He also noted that if
employers followed the Prime Minister s advice to err on the side
of caution and pay all penalty rates and loadings, then AWAs would
come to a grinding halt:
Unless there is a large, sharp drop in the number
of AWAs approved, we will know that the test has had little impact
on the content of AWAs.
The problem was, then as now, the Authority is
given the task of both policing and promoting AWAs. No matter how
well intentioned and professional the bureaucrats are, this cannot
work.(27)
From the previous discussion, there would
appear strong grounds for strengthening the safety net and the no
disadvantage test.
There is likely to be little outright
opposition to the Bill. The ALP was critical of the proposed fake
test, but has indicated a willingness not to oppose the
Bill.(28)
The Australian Democrats prefer the pre-Work
Choices WR Act, insofar as they believe agreements should be
underpinned by an award and subject to the 1996 global no
disadvantage test (as discussed earlier). Senator Murray
commented:
We would like to make it absolutely clear we
reject the post Work Choices-style AWAs, which uncouple workers
from the award and remove the No Disadvantage
Test.(29)
The Family First Party introduced a Bill to
strengthen the safety net on 29 March 2007: the Workplace Relations
(Restoring Family Work Balance) Amendment Bill 2007. Its provisions
would extend the redundancy-provision preservation period to five
years (four years above the current 12-month extension). It defines
ordinary hours to mean not only 38 hours per week but also
work between 6am and midnight. Work on a public holiday is to be
remunerated with another day off in lieu, paid at not less than a
rate of time and a half, or where the employee worked a part-time
day, an equivalent amount of paid time off in lieu paid at not less
than a rate of time and a half. A meal break is to be taken after
five hours.
The Senate referred the Bill to the Senate
Standing Committee on Employment, Workplace Relations and Education
on 10 May 2007 for report by 14 June 2007.
Submissions and the resulting
Report will be found at:
http://www.aph.gov.au/Senate/committee/eet_ctte/wr_ssnet/index.htm
A slight increase in funding to the OEA to $38
million and what appears to be a one-off 20 per cent increase to
the Office of Workplace Services (OWS, to be renamed the Workplace
Ombudsman) to $61 million had already been allocated in the
Commonwealth Budget (8 May 2006).(30)
However, on 28 May 2007, the OEA informed a
Senate Estimates Committee that OEA would employ a few hundred
extra ongoing staff to administer the fairness test, plus a couple
of hundred short-term contractors to apply the test to agreements
lodged since the May 7 start-up date for the
test.(31)
The Government proposes to formalise the
additional expenditure in the next Additional Estimates. The OEA,
renamed as the Workplace Authority, will receive an extra $303.5m
over four years, including $86.5m in 2007 08.
The Workplace Ombudsman will gain an
additional $64.1m over four years, including $18.5m in 2007
08.(32) It will also become a statutory authority, and
its director will be a statutory appointment by the
Governor-General.
The provisions are
discussed thematically rather than by individual item numbers.
Item 1 inserts new
Division 5A in Part 8 of the WR Act establishing a
fairness test for certain workplace agreements.
New
subsection 346B(1) defines a number of terms that are
central to this Division. Key definitions include designated award
, industrial instrument , protected award conditions , reference
award , relevant award and salary .
New sections
346E and 346F set out the conditions for when the
Workplace Authority Director must apply the fairness test to
workplace agreements.
In the case of an AWA, the Director
must decide whether an AWA passes the fairness test if:
- the AWA is lodged or varied on or after 7 May 2007
- the employee subject to the AWA is employed in an industry or
occupation in which the kind of work performed by the employee is
usually regulated by an award
- the employee has an annual rate of salary of less than $75 000
per annum,(33) and
- where the agreement excludes or modifies protected award
conditions in either a relevant award or designated award
(new subsection 346E(1)).
In the case of a collective
agreement, the Director must decide if it passes the fairness
test if:
- the agreement is lodged or varied on or after 7 May
2007
- one or more of the employees subject to the agreement is
employed in an industry or occupation in which the terms and
conditions of the kind of work performed by the employees is
usually regulated by an award, and
- where the agreement excludes or modifies protected award
conditions in either a relevant award or designated award
(new subsection 346E(2)).
A relevant award is an award that actually
regulates the work of the employee (or would regulate it if the
award were not displaced by the agreement) (new subsection
346B(1)). A designated award is an award that is
designated by the Workplace Authority as an appropriate comparison
for award-free employees (new subsection
346B(1)).
Protected award conditions are terms of an award
that relate to protected allowable award matters . The list of
protected award conditions is drawn from existing subsection
354(4). It consists of:
- overtime, shift loadings and penalty rates
- rest breaks
- incentive-based payments and bonuses
- annual leave loading
- public holidays, and
- monetary allowances.
New section 346C sets out
when protected award conditions apply to an employee whose
employment is subject to a workplace agreement. Where an employee
is subject to a workplace agreement and, but for that agreement, an
award would apply to that employee, then the protected award
conditions of that award would apply (new paragraph
346C(1)(a)). New paragraph 346C(1)(b),
together with new section 346H, deals with the
manner in which protected award conditions apply to an agreement
where an award has been designated.
New section 346J sets out the
obligations of the Workplace Authority Director to notify the
relevant parties about whether the Authority is, or is not
required, to apply the fairness test to a workplace agreement.
New sections 346K and 346L
deal with the circumstances in which the Workplace Authority
Director may determine that an award is a designated award. Such a
determination may occur either before or after a workplace
agreement has been lodged or varied. A designated award must
be:
- an award that regulates a similar type of work as the work
performed under the workplace agreement
- an appropriate award in the opinion of the Workplace Authority
Director, and
- not an enterprise award.
New section 346M sets out how
the fairness test is to be applied.
In the case of an AWA, the AWA passes the
fairness test if the Workplace Authority is satisfied that the AWA
provides fair compensation to the employee in lieu of protected
award conditions that have been modified or excluded.
In the case of collective agreements, whether
fair compensation is provided will be assessed on an overall
basis.
New subsection 346M(2) sets
out the principal factors that the Workplace Authority
must have regard to in determining whether a workplace agreement
provides fair compensation to the employee or employees and
therefore passes the test. These factors are:
- the monetary and non-monetary compensation(34) that
the employee or employees will receive under the workplace
agreement, in comparison to the protected award conditions that
apply to the employee or employees under a relevant or designated
award, and
- the work obligations of the employee or employees.
In addition, the Workplace Authority
may have regard to the personal circumstances of the
employee or employees, particularly their family responsibilities,
in considering whether an workplace agreement meets the fairness
test (proposed subsection 346M(3)).
In exceptional circumstances, and if the
Director is satisfied it is not contrary to the public
interest to do so, the Workplace Authority could also
have regard to the industry, location or economic circumstances of
the employer and the employment circumstances of the employee
(new subsection 346M(4)). New subsection
346M(5) provides a specific example of these exceptional
circumstances where the particular workplace agreement is part of a
reasonable strategy to deal with a short-term crisis in, and to
assist in the revival of, the employer s business.
In deciding whether a workplace agreement
passes or does not pass the fairness test, the Workplace Authority
Director has broad discretion to inform himself or herself in any
appropriate way including (but not limited to) contacting the
employer and employee(s) (new subsection 346M(6)).
It has been suggested that there will not be a formal hearing
process as applied under the old no disadvantage test in the AIRC.
It is also unclear whether other organisations such as unions or
perhaps competitors will be able to make submissions to the
Workplace Authority.(35)
New section 346P outlines the
Workplace Authority Director s obligations to notify relevant
parties about whether a workplace agreement passes the fairness
test. The Director must notify the employer (who must pass on
notice to the employees) and the employee (if the agreement is an
AWA) or the relevant union(s). If the agreement does not pass the
fairness test, the Director must also include in the notice advice
about how the agreement could be varied to pass the test, and must
inform the parties that compensation could be payable.
New sections 346Q and
346R deal with the consequences of a workplace
agreement not passing the fairness test.
Where the agreement does not pass the fairness
test and the agreement has ceased to operate in relation to any
employee,(36) the employee/s may be entitled to
compensation under section 346ZD in respect of any period they were subject to the
agreement (new section 346Q).
Where the agreement does not pass the fairness
test and is still in operation, then new subsection
346R(2) provides that the employer be given the
opportunity to vary the AWA or collective agreement (the Workplace
Authority would provide advice about how the agreement could be
varied to pass the fairness test: see new section 346P above).
For the purposes of section 346R, a variation
may be made by the employer providing the Workplace Authority with
a written undertaking.(37) An undertaking is taken to be
a variation of the agreement (see new subsection
346T(3)). If the agreement is an AWA, the employer may
either lodge a variation of the AWA or a written undertaking.
If the
employer lodges a variation or undertaking, the Workplace Authority
must test the varied agreement under new section
346U and inform the parties of the result.
New subsection 346R(3)
provides that if the employer takes no action within the relevant
period (i.e. 14 days unless extended by regulation) then the
workplace agreement ceases to operate and the employee/s who were
at any time subject to the workplace agreement may have an
entitlement to be paid compensation under section 346ZD for that
period.
New subsection 346R(4)
provides that if the Workplace Authority has made separate
decisions that:
- a workplace agreement did not pass the fairness test, but
- the workplace agreement as varied did pass the fairness test,
then
- the workplace agreement as varied continues in operation,
and
- the employee/s may be entitled to compensation under section
346ZD.
New section
346S deals with the requirements for lodging a variation
or giving an undertaking as permitted by new section 346R.
If an undertaking or variation is lodged but
the agreement still fails the fairness test, then:
- the workplace agreement will cease to apply, and
- the employees will be entitled under new section 346ZD to
compensation for any shortfall in entitlements that they experience
during the fairness test period (new section
346W).(38)
Where a workplace agreement ceases to apply
(either because the employer fails to provide an undertaking or
vary an AWA, or because the agreement still fails the test after
being resubmitted) then agreements, awards and designated
redundancy entitlements under a terminated agreement, which had
been replaced by the workplace agreement, will be revived
(new sections 346Y, 346Z, and 346ZA). It has been
noted that this could have interesting ramifications. In the case
where the employees were not covered by an award and the Workplace
Authority designates an award for the purposes of the fairness
test, then the protected award conditions from that designated
award will apply if the agreement fails the fairness test even
though the protected award conditions never applied to the
employees in the first place.(39)
New sections 346ZE 346ZH are
civil remedy provisions in relation to the fairness-test
provisions.
New subsection 346ZE(1)
requires an employer to take reasonable steps to ensure that all
employees subject to a collective agreement are given notice about
a Workplace Authority decision to apply the fairness test to the
agreement or about a decision on whether the agreement passes the
fairness test. The offence attracts a penalty of 30 penalty units,
i.e. $3300 (see item 15). Breaches by bodies
corporate attract a maximum penalty five times that amount.
New
subsection 346ZF(1) prohibits an employer from dismissing
(or threatening to dismiss) an employee if the sole or dominant
reason for doing so is that a workplace agreement does not (or may
not) pass the fairness test. The offence attracts a maximum
pecuniary penalty of 60 penalty units ($6600). In addition, the
court(40) could make orders for payment of compensation
for damages or any other order the court considers appropriate
(new section 346ZG). Persons who may apply for
such relief from the court are a workplace inspector, an employee
affected by the contravention, a person prescribed by the
regulations, or an eligible trade union (new subsection
346ZG(3)).
New
section 346ZH prohibits the coercion of an existing
employee to agree to the modification or exclusion of a protected
award condition (other than by protected industrial action, such as
a lockout). The offence would attract a maximum pecuniary penalty
of 60 penalty units ($6600).
Items 2
42 are consequential amendments, some of them resulting
from the introduction of the Fairness Test in new Division 5A. The
most significant are items 41 and 42.
Extending the fairness test to
Preserved State Agreements and Notional Agreements Preserving State
Awards
Items 41 and 42 amend
Schedule 8 of the WR Act with the effect of extending the fairness
test to protected conditions contained in preserved State
agreements and protected notional conditions contained in notional
agreements preserving State awards . These are agreements where an
employer and employee moved into the federal system on 27 March
2006, and remain covered by transitional instruments.
Items 13 and
14 are unrelated to the fairness test. They amend
section 400. The effect is to clarify that in a transmission of
business, a new employer cannot lawfully offer employment to
transferring employees conditional upon their signing an AWA. This
would constitute duress. The amendment takes account of Schanka
v Employment National (Administration) Pty Ltd [2001] FCA 579,
where the Federal Court found that, in the context of a
transmission of business, a requirement to make an AWA may amount
to duress.(41)
Item 2 repeals existing
Divisions 1 and 2 of Part 5 and inserts new Divisions 1, 2
and 3. Its effect is to abolish the position of Employment
Advocate, provide for the appointment of the Workplace Authority
Director, and establish the Workplace Authority as a statutory
authority.
The functions of the Workplace Authority
Director are set out broadly in new section
150B. They include many of the functions of the
Employment Advocate but in addition the Director would be
responsible for:
- administering the fairness test, and
- providing information and advice to employees and employers
about workplace agreement-making and Commonwealth
workplace-relations laws.
Most of the new provisions in Schedule 2
relating to appointment, remuneration and terms and conditions of
the Workplace Authority Director and Deputy Directors are
essentially the same as those that currently apply to the position
of Employment Advocate (see pp. 45 50 of the Explanatory
Memorandum).
New section 153B establishes
the Workplace Authority as a statutory agency for the purposes of
the Public Service Act 1999, and provides for the
engagement of staff to assist the Workplace Authority Director.
Staff assisting the Director must be engaged under the Public
Service Act (new section 153A). Item
31 would amend the Financial Management and Accountability
Regulations 1997 so as to prescribe the Workplace Authority as a
prescribed agency for the purposes of the Financial Management
and Accountability Act 1997.
New section 153C gives a
broad delegation power that allows the Director to delegate any of
his or her functions to a person appointed or employed by the
Commonwealth.
Item 5 inserts new
Part 5A into the WR Act to provide for the appointment of
the Workplace Ombudsman and the establishment of the Office of
Workplace Ombudsman as a statutory authority.
The functions of the Workplace Ombudsman are
set out broadly in new section
166B. The Office will essentially take over the
information, education, inspection, inquiry and enforcement role of
the Office of Workplace Services.
Most of the new provisions in Schedule 3
relating to appointment, remuneration and terms and conditions of
the Workplace Ombudsman are essentially the same as the provisions
currently applying to the position of Employment Advocate and to
those that will apply to the position of Workplace Authority
Director (see pp. 57 60 of the Explanatory Memorandum).
New section 166P establishes
the Office of the Workplace Ombudsman as a statutory agency for the
purposes of the Public Service Act 1999, and provides for
the engagement of staff to assist the Workplace Ombudsman. Staff
assisting the Ombudsman must be engaged under the Public Service
Act (new section 166N). Item 17
would amend the Financial Management and Accountability Regulations
1997 so as to prescribe the Office of the Workplace Ombudsman as a
prescribed agency for the purposes of the Financial Management
and Accountability Act 1997.
New section 166Q would allow
the Ombudsman to delegate any of his or her functions to a Senior
Executive Service (SES) employee or acting SES employee of the
Office of the Workplace Ombudsman.
The Government introduced five pages of
amendments to this Bill on 30 May 2007.
The Bill will be amended by the inclusion of a
new Schedule 4. Provisions of this Schedule
address prohibited content in workplace agreements. Section
356 is to be repealed and replaced to
contain provisions formerly found in the
Workplace Relations Regulations 2006 [Chapter 2, Part 8,
Division 7.1 at Regulation 8.5(2)] dealing with the encouragement
and discouragement of individuals becoming members of unions
(industrial associations) and the payment of bargaining fees.
Following these amendments, any clauses in workplace agreements
dealing with these matters will be stipulated under the main body
of the WR Act as prohibited content.
A new Schedule 5 will add
provisions to the Bill which address the ongoing registration of
industrial organisations (enterprise associations, trade unions and
employer associations) under the WR Act.
The registration of organisations is currently
provided for under section 18 of
Schedule 1 of the WR Act. These new provisions amend sections
18A 18D of Schedule 1. In essence the amendments cement the
constitutional reach of the Schedule under the definitions section
of Schedule 1. Currently an association of employees is federally
registrable if a majority of its members are
federal system employees. Registered organisations which do not
have a majority of their members employed by Work Choices employers
retain registration until 27 March 2009.(42) The
amendments, inter alia, allow an employee association to be
federally registrable if some or all of its
members are federal system employees. Similar rules will apply to
employer associations and enterprise associations.
In the period since
the fairness test was announced, there has been some coalescence of
views about the desirability of re-introducing a
workplace-agreement test. The ALP appears to have softened its
opposition to this Bill, and indeed will not oppose the Bill.
Of course, there is always the possibility of amendment following
the Senate Committee review. On the other hand, the ACCI also has
become less strident in its opposition, with ACCI s Mr Hendy now
placated after seeing the detail of the Bill. He appears to have
been persuaded by the proposed financial assistance to be afforded
to employers by the Bill. Indeed, it appears likely that business
groups will fund an advertising campaign to support the fairness
test.(43)
Nevertheless, the introduction and passage of
this Bill represent a significant volte-face for the Government.
Professor Andrew Stewart refers to a 4th May Revolution
.(44) The Coalition s underlying workplace-relations
philosophy was that outlined by Peter Reith in 1996 (quoted
earlier). However the Bill challenges the underpinnings of that
philosophy, as has been noted:
The government has spent almost two years
legislating to move agreement making away from relying on awards
and towards deals between individuals and enterprises, underpinned
by a universal set of minimum pay and conditions. The idea was to
let market forces play a greater role in the setting [of] wages and
conditions, outside of the lowest paid workers whose pay is set by
the Australian Fair Pay Commission. But after a six-month hammering
in the opinion polls the government has decided to benchmark
Australian workplace agreements and collective agreements against
the relevant award.(45)
The silent sleeper in this debate is the
future of the award system and its relationship to the Australian
Fair Pay and Conditions Standard. The fairness test applies to a
relevant or designated award, in effect placing a greater reliance
on the award system. Former award provisions now determined by the
AFPCS have no effect unless these are more favourable , therefore
it is important not to overlook the AFPCS s role in the new
fairness test. Stewart has canvassed the possibility of a
strengthened safety net in the future, and it may be possible for
the AFPCS to be broadened, that is, by including provisions now
determined to be protected award conditions. In the meantime there
is a planned rationalisation and simplification of awards under the
Work Choices legislation.
The process of rationalising awards is to
start after the Australian Fair Pay Commission hands down its 2007
wage decision (expected to be mid-year).(46) The AFPC
has been the centre of concern for unions and employers in not
being able to fully and in some cases accurately set out pay and
classification scales (former award pay rates). Coupled with the
award rationalisation and simplification process, the parties to
agreements may be in a quandary as to what instrument/s should be
used to assess the new fairness test. In the case of parties to
former State awards under Work Choices (Notional Agreements
Preserving State Awards) these are subject to a 2009 termination
date (notwithstanding the effects of this Bill).
- The Hon Ralph Willis,
Second reading speech: Industrial Relations Bill 1988 , House
of Representatives, Debates, 28 April 1988, p. 2337.
- Senator Peter Cook,
Second Reading speech: Industrial Relations Legislation Amendment
Bill 1992 , Senate, Debates, 7 May 1992, p. 2520.
- The Hon. Laurie Brereton,
Second reading speech: Industrial Relations Reform Act 1993 ,
House of Representatives, Debates, 28 October 1993, p.
2781.
- Re Tweed Valley Processors Enterprise
Flexibility Agreement 1995 AILR 3-197.
- The Hon. Peter Reith,
Second Reading speech: Workplace Relations and Other Legislation
Amendment Bill 1996 , House of Representatives,
Debates, 23 May 1996, pp. 1295, 1301 2.
- Agreement between the Commonwealth
Government and the Australian Democrats on the Workplace
Relations Bill, October 1996, pp. 12 and 16.
- Anthony Forsyth and Carolyn Sutherland,
Collective Labour Relations Under Siege: The Work Choices
Legislation and Collective Bargaining , Australian Journal
of Labour Law, vol. 19, no. 2, July 2006, pp. 185 6.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Official
Committee Hansard, 30 May 2006, pp. 7 8.
- R. Mitchell, R. Campbell, A. Barnes, E.
Bicknell, K. Creighton, J. Fetter and S. Korman,
What s Going on with the No Disadvantage Test ? An Analysis of
Outcomes and Processes under the Workplace Relations Act ,
Journal of Industrial Relations, vol. 47, no. 4, 2005,
p. 403.
- ibid., p.404.
- ibid., p. 409.
-
Yurong Holdings Pty Ltd v Renella [2005] SAIRC 60.
- The
Workplace Relations Amendment (Work Choices) Act 2005,
which substantially amended the Workplace Relations Act
1996.
- Workplace agreements , CCH Australian
Labour Law Reporter, 155.
- Department of Employment and Workplace
Relations, The workplace relations system. Know where you stand ,
http://www.workplace.gov.au/NR/rdonlyres/85E43C00-4380-4F94-BEB1-98B7AC6116D7/0/KnowWhereYouStandFactsheet.pdf,
accessed on 22 May 2007. This advice follows the Prime Minister s
media release,
A Stronger Safety Net for Working Australians, 4 May
2007.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Official
Committee Hansard, 29 May 2006, p. 138.
- Senate Employment, Workplace Relations and
Education Committee Inquiry into the Workplace Relations Amendment
(A Stronger Safety Net) Bill 2007,
Submission of the Recruitment and Consulting Services
Association, June 4, 2007.
- M. Davis,
Revealed: how AWAs strip work rights , Sydney Morning
Herald, 17 April 2007, p. 1.
- M. Schubert and M. Grattan,
We bungled on IR: Hockey , The Age, 23 May 2007, p.
1.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Official
Committee Hansard, 28 May 2007, p. 20.
- ibid., pp. 23 4.
- S. Burrow, ACTU, Factsheet on the Government
s new so-called fairness test , http://www.rightsatwork.com.au/factmay7,
accessed on 7 June 2007.
- M. Shaw,
High Court only avenue of appeal for AWA workers , The
Age, 4 June 2007 , p. 7.
- P. Karvelas,
Grumbles but most bosses back shift , The Weekend
Australian, 5 May 2007, p. 9. P. Hendy, Disappointing
and unnecessary changes to Work Choices, media release, 4
May 2007.
- Karvelas, op. cit.
- ibid.
- David Peetz,
A stronger safety net for working Australians : Some effects of
Work Choices , Bartier Perry Annual Workplace Seminar, Star
City Hotel, Pyrmont, Sydney, 15 May 2007, p. 5.
-
Workplace fairness laws yet to be written , Canberra
Times, 11 May 2007, p. 2, and A. Fraser,
Labor pledge of support for fairness test a joke , Canberra
Times, 30 May 2007, p. 2.
- Democrats support pre not post Work Choices
AWAs, Workforce, no. 1586, 18 May 2007.
- Department of Employment and Workplace
Relations,
Portfolio Budget Statements 2007-08, pp. 58, 274,
282.
- Senate Employment, Workplace Relations, Small
Business and Education Legislation Committee, Official
Committee Hansard, 28 May 2007, pp. 38 9, 43.
- Explanatory Memorandum, p. 3
- New section 346G sets out the method of
calculation for the purposes of the annual salary cap of $75 000.
New subsection 346G(1) allows regulations to be made to increase
the cap above $75 000.
- Non-monetary compensation is defined as
compensation for which there is a money value equivalent or to
which a money value can reasonably be assigned, and that confers a
benefit or advantage which is of significant value to the employee
(new subsection 346M(7)).
- MinterEllison, HR & IR Update , 29 May
2007,
http://www.minterellison.com/public/resources/file/eb4a890da672acf/HR%26IRUpdate_070529.pdf,
accessed on 8 June 2007, p. 2.
- For example, where the agreement is
terminated before the agreement is tested.
- The Explanatory Memorandum at p. 22 notes
that this reflects the arrangements that were in place under the
previous no disadvantage test.
- The fairness test period is defined in
new subsection 346ZD(4) as: the period beginning
on the day the agreement was lodged, and ending on either the day
it ceased to operate, or if the agreement is varied in such a way
that it passes the fairness test, the day on which the variation
was lodged.
- MinterEllison, op. cit., p. 3.
- The court is the Federal Court of Australia
or the Federal Magistrates Court.
- Explanatory Memorandum, p. 36.
- Workplace Relations Act, Schedule 10, clause
6.
- P. Karvelas,
Bosses planning ad blitz to back laws , The
Australian, 30 May 2007 , p. 6.
- Andrew Stewart, Work Choices: What Comes
Next? , address to the Industrial Relations Society of the ACT,
Canberra, 30 May 2007 .
- M. Skulley,
Awards reversal a fair reflection of mood , Australian
Financial Review, 30 May 2007, p. 6.
- Minister proceeding slowly and cautiously on
award rationalisation , http://www.workplaceexpress.com.au/,
30 March 2007.
Steve O'Neill and Maryanne Neilsen
13 June 2007
Bills Digest Service
Parliamentary Library
© Commonwealth of Australia
This work is copyright. Except to the extent of uses permitted
by the Copyright Act 1968, no person may reproduce or transmit any
part of this work by any process without the prior written consent
of the Parliamentary Librarian. This requirement does not apply to
members of the Parliament of Australia acting in the course of
their official duties.
This work has been prepared to support the work of the Australian
Parliament using information available at the time of production.
The views expressed do not reflect an official position of the
Parliamentary Library, nor do they constitute professional legal
opinion.
Feedback is welcome and may be provided to: web.library@aph.gov.au. Any
concerns or complaints should be directed to the Parliamentary
Librarian. Parliamentary Library staff are available to discuss the
contents of publications with Senators and Members and their staff.
To access this service, clients may contact the author or the
Library’s Central Entry Point for referral.
Back to top