WorkChoices A New System Workplace Relations
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
79614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 1
WorkChoices
A New
Workplace Relations
System79614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 2
Glossary
ADR Alternative Dispute Resolution
ACTU Australian Council of Trade Unions
AIRC Australian Industrial Relations Commission
AWA Australian Workplace Agreement
Bargaining agent A person appointed by an employee or group of employees to
represent them in agreement negotiations. A bargaining agent can
be a trade union representative, a friend, a relative, a solicitor, or
any other adult person whose advice an employee can rely on.
DSP Dispute Settling Procedure
Fair Pay Commission Australian Fair Pay Commission
HREOC Human Rights and Equal Opportunity Commission
OEA Office of the Employment Advocate
OHS Occupational Health and Safety
OWS Office of Workplace Services
Fair Pay and
Conditions Standard Australian Fair Pay and Conditions Standard
WR Act Workplace Relations Act 1996
NOTE: The characters portrayed in the scenarios used throughout this document are fictitious and
have been used for illustrative purposes only.
© Commonwealth of Australia 2005.
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be reproduced by any process
without prior written permission from the Commonwealth. Requests and inquiries concerning reproduction and rights should be
addressed to the Commonwealth Copyright Administration, Attorney General’s Department, Robert Garran Offices, National
Circuit, Barton ACT 2600 or posted at http://www.ag.gov.au/cca79614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 3
Table of contents
Glossary .................................................................................................................................... 2
INTRODUCTION – WorkChoices: The New Workplace Relations System .............................. 5
OVERVIEW – WorkChoices: A New Workplace Relations System .......................................... 7
1. A national system ............................................................................................................ 11
2. Australian Fair Pay Commission ..................................................................................... 13
2.1 Responsibilities of the Australian Fair Pay Commission .......................................... 13
2.2 Operation of the Australian Fair Pay Commission ................................................... 14
2.3 Structure of the Australian Fair Pay Commission .................................................... 14
3. The Australian Fair Pay and Conditions Standard ......................................................... 15
3.1 Standard conditions ................................................................................................... 15
3.2 Compliance and disputes about the Fair Pay and Conditions Standard ................... 18
3.3 Interactions between the Fair Pay and Conditions Standard,
instruments and other laws ....................................................................................... 18
4. Agreements....................................................................................................................... 19
4.1 Simpler agreement making ....................................................................................... 19
4.2 Simplified lodgement, variation and termination of agreements ............................. 20
4.3 Types of agreement .................................................................................................... 21
4.4 Protecting award conditions in bargaining............................................................... 22
4.5 Agreement content ..................................................................................................... 23
4.6 Transitional arrangements ........................................................................................ 24
4.7 Relationship between types of agreements, other instruments and
the Fair Pay and Conditions Standard....................................................................... 24
4.8 Agreement dispute resolution.................................................................................... 25
5. Industrial action ............................................................................................................... 27
5.1 Definition of industrial action ................................................................................... 27
5.2 Quicker remedies for unprotected action .................................................................. 27
5.3 Secret ballots for protected action.............................................................................. 27
5.4 Prohibition on industrial action during the life of an agreement ............................ 28
5.5 Suspending and terminating a bargaining period.................................................... 29
5.6 Essential services ....................................................................................................... 29
5.7 Workplace determinations ......................................................................................... 30
5.8 Damaging industrial action in state systems............................................................ 30
379614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 4
6. Awards .............................................................................................................................. 31
6.1 Protecting award conditions ...................................................................................... 31
6.2 Content of awards ...................................................................................................... 32
6.3 Role of the AIRC in relation to awards...................................................................... 34
6.4 Reducing duplication ................................................................................................. 34
6.5 The Award Review Taskforce ..................................................................................... 35
6.6 Interactions between types of awards, other instruments and the Fair Pay
and Conditions Standard............................................................................................ 35
6.7 Award dispute resolution ........................................................................................... 35
7. Transmission of business ................................................................................................. 37
8. The Australian Industrial Relations Commission ........................................................... 39
8.1 Dispute resolution ...................................................................................................... 39
8.2 The AIRC’s other roles in the new workplace relations system ................................ 40
9. Protections for employees ................................................................................................ 43
9.1 Key principle of protecting vulnerable workers retained. ........................................ 43
9.2 Equal remuneration ................................................................................................... 43
9.3 Vulnerable workers .................................................................................................... 43
9.4 Role of unions in enforcement ................................................................................... 44
10. Unions/registered organisations....................................................................................... 45
10.1 Agreement making .................................................................................................. 45
10.2 Freedom of association............................................................................................. 45
10.3 Right of entry........................................................................................................... 47
10.4 Employer and employee organisations.................................................................... 48
10.5 Transition for state registered organisations .......................................................... 48
11. Termination of employment ............................................................................................. 51
11.1 Unfair dismissal ....................................................................................................... 51
11.2 Protection against unlawful termination ................................................................ 52
12. Victoria ............................................................................................................................. 55
13. Transitional arrangements ............................................................................................... 57
13.1 Constitutional corporations currently in the state system moving into
the federal system .................................................................................................... 57
13.2 Non-constitutional corporations currently in the federal system moving
into state systems..................................................................................................... 58
Award Review Taskforce terms of reference .......................................................................... 61
Workplace Relations Reforms helping workers and their families ....................................... 63
479614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 5
Introduction – WorkChoices:
The New Workplace Relations System
WHAT’S CHANGING
THE NEW WORKPLACE RELATIONS SYSTEM
WILL move towards one, simpler national system.
WILL simplify the workplace agreement making process.
WILL establish the Australian Fair Pay Commission to protect minimum and award
classification wages.
WILL introduce the Australian Fair Pay and Conditions Standard to protect workers’ wages and
conditions in the agreement making process.
WILL enshrine a set of minimum conditions in Federal legislation for the first time.
WILL provide modern award protection for those not covered by agreements.
WILL ensure an ongoing role for the Australian Industrial Relations Commission (AIRC).
WILL protect against unlawful termination.
WILL better balance the unfair dismissal laws.
WHAT’S NOT CHANGING
THE NEW WORKPLACE RELATIONS SYSTEM
WON’T cut minimum and award classification wages.
WON’T remove protection against unlawful termination.
WON’T abolish awards.
WON’T remove the right to join a union.
WON’T take away the right to lawful industrial action when negotiating an agreement.
WON’T outlaw union agreements.
WON’T abolish the Australian Industrial Relations Commission.
579614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 6
679614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 7
Overview – WorkChoices:
A New Workplace Relations System
A NATIONAL SYSTEM
To meet its primary objective of promoting
Australia has over 130 different pieces of the economic prosperity of the people of
industrial relations legislation, over 4000 Australia the Fair Pay Commission will
different awards and six different need to have regard to:
workplace relations systems operating
The capacity for the unemployed and low
across the country.
paid to obtain and remain in employment;
There are simply too many rules and Employment and competitiveness across
regulations that make it too hard for the economy;
many employees and employers to get Providing a safety net for the low paid; and
together and reach agreement.
Providing minimum wages for junior
We also have too much red tape, too much employees, and employees to whom
complexity, and too much confusion. It’s training arrangements apply and
bad for business, it costs jobs and it’s employees with disabilities that ensure
holding Australia back. those employees are competitive in the
labour market.
For all these reasons, the Australian
Government is moving towards one,
simpler national workplace relations Instead of the current adversarial and
system called WorkChoices. legalistic wage setting process the Fair
Pay Commission will adopt a consultative
approach and focus on its key
A NEW WAGE SETTING BODY responsibilities of setting and adjusting
To make the system simpler and fairer, a minimum and award classification wages
new and totally independent wage setting having regard to the objects set out for it
body will be established with the primary in the legislation.
objective of promoting the economic
prosperity of the people of Australia. The
new body will be the Australian Fair Pay AN AUSTRALIAN FAIR PAY
Commission (Fair Pay Commission). AND CONDITIONS STANDARD -
The Fair Pay Commission will set and A GUARANTEED SAFETY NET
adjust minimum and award classification The Government will enshrine in law
wages, minimum wages for juniors, minimum conditions of employment:
trainees/apprentices and employees with annual leave, personal/carer’s leave
disabilities, minimum wages for piece (including sick leave), parental leave
workers and casual loadings. (including maternity leave) and maximum
Minimum and award classification wages ordinary hours of work.
will be protected at the level set after the These conditions, together with the
inclusion of the increase from the AIRC’s minimum and award classification wages
2005 Safety Net Review. Minimum and set by the Fair Pay Commission, will make
award classification wages will not fall up the Australian Fair Pay and Conditions
below this level and will increase as Standard (Fair Pay and Conditions
decided by the Fair Pay Commission. Standard).
All new agreements will be required to
meet the Fair Pay and Conditions
Standard throughout the life of the
agreement. This will make it easier for
employers and their employees to compare
their agreement against the new Fair Pay
and Conditions Standard.
779614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 8
SIMPLER AGREEMENT
These award conditions are:
MAKING IN WORKPLACES
Public holidays;
The key to greater productivity in the
Rest breaks (including meal breaks);
workplace is an increased emphasis on
direct bargaining between employers and Incentive-based payments and bonuses;
employees. Agreements must be easier to Annual leave loadings;
make. A streamlined, simpler and less Allowances;
costly agreement making process will be
Penalty rates; and
introduced.
Shift/overtime loadings.
There will be no time consuming and
legalistic certification or approval process.
Instead all collective agreements and These award conditions can only be
individual Australian Workplace modified or removed by specific provisions
Agreements (AWAs) will need to be lodged in the new agreement. If these award
with the Office of the Employment conditions are not specifically agreed to in
Advocate (OEA). A statutory declaration the new agreement, these award
attesting that the agreement was conditions continue to apply.
negotiated in compliance with the law will
need to be lodged with the agreement. A collective agreement or AWA under
WorkChoices need simply set out how the
To ensure that employers meet the new agreement will either change or
procedural requirements for agreement remove these matters in that agreement.
making and comply with the Fair Pay and
Conditions Standard, there will be an
improved compliance regime with MODERN AWARD
financial penalties for failure to meet the PROTECTION FOR THOSE NOT
rules for negotiation, lodgement or
content of agreements.
COVERED BY AGREEMENTS
The Government will be retaining a
All agreements, both collective agreements
system of federal awards. On the first day
and AWAs, will take effect from the date of
of WorkChoices, all current federal awards
lodgement rather than the current
will remain in place.
practice of agreements taking effect from
the date of certification or approval. However, awards will be simplified to
ensure they provide a simple and up to
This lodgement only process will reduce
date minimum safety net of terms and
delays and uncertainty for employers and
conditions.
employees at the workplace. It will ensure
that once an agreement is lodged, the
parties have the certainty they deserve. PROTECTING
Parties will be able to negotiate
agreements that operate for up to five AWARD CONDITIONS
years. Under WorkChoices long service leave,
superannuation, jury service and notice of
termination will not be included in new
PROTECTING AWARD awards because they are provided for in
CONDITIONS IN BARGAINING specific legislation. However these
provisions in current awards will continue
WorkChoices will protect certain award
to apply to existing and new employees
conditions when new workplace
covered by these awards. This means
agreements are negotiated. These award
award-reliant employees will continue to
conditions can be the subject of
enjoy the benefit of these provisions in
bargaining by the employee/s and
their current awards. Any new awards
employer. If the relevant award conditions
will not be able to contain these non-
are not specifically addressed the relevant
allowable matters.
award condition will apply in the new
agreement. Award provisions covering matters within
the purview of the Fair Pay and Conditions
Standard (annual leave, personal/carer’s
leave, parental leave and hours of work)
will also continue to apply if they are
879614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 9
more generous. In new awards the Fair IMPROVED PROTECTIONS
Pay and Conditions Standard for these
matters will apply. FOR EMPLOYERS AND
EMPLOYEES
AWARD REVIEW TASKFORCE Whether you are an employee or an
employer your rights will be protected
Currently there are far too many awards under WorkChoices by the Office of
and award classifications, creating Workplace Services (OWS).
complexity and confusion. The Award
Review Taskforce will examine Protections for employers and employees
classification wage structures with a view will improve by extending the compliance
to providing a more accessible and easily regime in the Workplace Relations Act
understood list of award classifications 1996 (the WR Act) to cover the Fair Pay
and pay rates. The work of the Award and Conditions Standard, agreement
Review Taskforce will not be an exercise making and state awards and agreements
in cutting award classification wages or that are to be brought into the
conditions. WorkChoices system.
The enforcement functions under the WR
Act will be undertaken by the OWS. The
AN ONGOING ROLE FOR THE OWS will be given extra resources to
AUSTRALIAN INDUSTRIAL ensure that employees and employers
RELATIONS COMMISSION know their rights and obligations and
that these are fairly enforced.
The role of the Australian Industrial
Relations Commission (AIRC) will change OWS will be an easily accessible ‘one stop
to keep pace with the needs of the modern shop’ for all enforcement and compliance
economy. The AIRC will focus on its key activities.
responsibility – dispute resolution. In
addition, the AIRC will also have A BETTER BALANCE IN
responsibility for further simplifying and
rationalising awards, regulating UNFAIR DISMISSAL LAWS
industrial action, right of entry, unfair Businesses that employ up to and
dismissal and regulating registered including 100 employees will be exempt
organisations. from unfair dismissal laws. This figure
The AIRC will retain its powers to resolve includes part time employees and casual
disputes arising under agreements but employees who have been engaged on a
only where those functions are expressly regular and systematic basis for a period
conferred on it by the parties. The AIRC or sequence of periods of at least 12
will also retain its power to resolve months.
matters arising during the negotiation of For businesses with more than 100
an agreement. employees an employee must have been
The AIRC will no longer exercise employed for six months before they can
compulsory powers of conciliation and pursue an unfair dismissal claim and
arbitration, but will provide voluntary claims cannot be brought where
dispute resolution services with limited employment has been terminated because
exceptions (such as terminating a the employer genuinely no longer
bargaining period where industrial action requires the job to be done (i.e. operational
is threatening life or causing damage to requirements).
the economy). Just like today, only employees of
The AIRC will be able to assist with businesses that are constitutional
dispute resolution when considering the corporations will have access to the unfair
making of an order to prevent or stop dismissal laws.
unprotected industrial action.
The AIRC will also retain its role in
providing an initial conciliation service for
unlawful termination claims.
979614_G_A4_0510_p1-10 6/10/05 3:56 AM Page 10
PROTECTION AGAINST transitional agreements in WorkChoices.
The terms and conditions of their current
UNLAWFUL TERMINATION state awards will not change unless the
conditions in the Fair Pay and Conditions
All employees (regardless of the size of the Standard are better. If the Fair Pay and
business in which they work or the legal Conditions Standard is more generous
status of their employer) will continue to those provisions apply.
have access to remedies for unlawful Employers in the federal system that are
termination, which prohibits dismissal for: not constitutional corporations will have
Temporary absence from work because of a transitional period of five years. This
illness or injury; means that current agreements and
Trade union membership or participation awards for these employers and their
in trade union activities; employees will continue for up to the five
Non-membership of a trade union;
year period. Employers currently in the
federal system that are not constitutional
Seeking office as, or acting or having acted corporations will not be able to make
in the capacity of, a representative of new agreements or amend the current
employees;
agreements. There will be some scope
The filing of a complaint, or participation to amend awards covering employers
in proceedings, against an employer; leaving the new national system to allow
Race, colour, sex, sexual preference, age, for an increase in wage related conditions.
physical or mental disability, marital
status, family responsibilities, pregnancy,
religion, political opinion, national WORKCHOICES AND FAMILIES
extraction or social origin;
The Government’s workplace relations
Refusing to negotiate, make, sign, extend, reforms are designed to achieve the right
vary or terminate an AWA; balance between paid work and family
Absence from work during maternity leave responsibilities by building on and
or other parental leave; or enhancing the protections and flexibilities
Temporary absence from work because of already provided to Australian workers
the carrying out of a voluntary emergency with family responsibilities.
management activity.
WorkChoices will provide greater
flexibility and make it simpler to negotiate
If the employee makes a claim for family-friendly working arrangements.
unlawful termination the employee will be WorkChoices will also reduce barriers to
entitled to an order from the court unless greater employment, allowing more jobs
the employer can prove that the for Australian families. In addition,
termination was for a reason that was not WorkChoices will protect basic
unlawful. minimum conditions.
The Government will also provide up to
$4,000 worth of legal advice to eligible See Attachment B ‘Workplace Relations
employees who believe they may have been Reform Helping Workers and Their
unlawfully terminated. Families’.
TRANSITIONAL
ARRANGEMENTS
The Government will put in place
comprehensive transitional arrangements
for employers and employees entering
WorkChoices and for those non-
constitutional corporation employees
currently in the federal system.
Employers who are constitutional
corporations entering WorkChoices from
the state systems will have a three year
transitional period. Their current state
agreements and awards will become
1079614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 11
1. A national system
WorkChoices will be largely based on the
corporations power in the Constitution. In WorkChoices will cover:
addition it will rely on other heads of Trading, financial and foreign corporations
power – the territories power (for the ACT (constitutional corporations);
and the NT), the referral power (for Employers and employees in territories
Victoria) and the external affairs power to (the ACT and NT) and Christmas and Cocos
support existing arrangements (e.g. the Islands;
unlawful termination provisions).
The Commonwealth, including its
authorities;
USE OF THE Waterside, maritime and flight crew
employers; and
CORPORATIONS POWER
All employers and employees in Victoria.
The use of the corporations power will
allow the Australian Government to
directly establish legislated minimum WorkChoices will cover the field.
wages and conditions at a national level Employers and employees covered by
for the first time. WorkChoices will not be subject to
WorkChoices will cover up to 85 per cent regulation by state employment laws.
of employees across Australia1, primarily, Laws which will remain regulated by the
but not exclusively, those employed by states are those such as occupational
constitutional corporations. Constitutional health and safety laws, workers
corporations are the financial, trading and compensation laws, trading hours, public
foreign corporations covered by holidays and long service leave. Some
paragraph 51(xx) of the Constitution. By existing federal awards refer to state laws
and large this includes companies and that cover conditions such as long service
incorporated businesses. leave. Employees covered by these awards
will continue to have access to these
Just like today under WorkChoices if an conditions. If the relevant federal award
employer is incorporated under state or doesn’t include provisions for long service
federal legislation it will also need to be a leave state legislation will continue to
financial or trading corporation to be a apply.
constitutional corporation.
People employed by employers who do not
The activities of a corporation will fall within the above categories –
determine whether it is a trading or including unincorporated businesses in
financial corporation. The High Court the state system and some state
approach to what constitutes financial or government employees - will (where they
trading activities has been broad. For are not already in WorkChoices) remain in
example, football clubs, a state their respective state systems until state
superannuation board, the Red Cross governments refer their workplace
Society, a city council, and a public relations powers to the Australian
hospital have all been considered to be Government.
financial or trading corporations.
After a five year transitional period, and
unless state governments refer their
powers, non-constitutional corporations in
WorkChoices will cease to be covered by
WorkChoices (for more information, see
section 13 below regarding transitional
arrangements for non-constitutional
corporations currently in the federal
system moving into the state systems).
ABS, Employee Earnings and Hours, May 2004 (Cat No 6306.0), unpublished data.
1
1179614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 12
1279614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 13
2. Australian Fair Pay Commission
2.1 Responsibilities of the Australian
Fair Pay Commission . . . . . . . . . . . . . . . . . . 13 EXAMPLE
2.2 Operation of the Australian Vivienne is a childcare worker who is paid
Fair Pay Commission . . . . . . . . . . . . . . . . . . 14 according to her award classification under
the Children’s Services (Australian Capital
2.3 Structure of the Australian Territory) Award 2005. Vivienne has received
Fair Pay Commission . . . . . . . . . . . . . . . . . . 14 the increase from the 2005 Safety Net
Review. In the new system, the Fair Pay
Commission will be responsible for setting
To make the system simpler and fairer and adjusting Vivienne’s wages. Vivienne’s
a totally new independent wage setting wages in the new system will not fall below
their current level and will increase as
body will be established with the primary
determined by the Fair Pay Commission.
objective of promoting the economic
prosperity of the people of Australia.
The Government will establish the In setting minimum wages for trainees
Australian Fair Pay Commission (Fair Pay (including part time and full time
Commission) to set and adjust a single apprentices) the Fair Pay Commission will
minimum wage, minimum wages for be required to ensure there are
award classification levels, minimum appropriate specific rates established for
wages for juniors, trainees/apprentices each category of trainee. This will remove
and employees with disabilities, minimum any current gaps in the coverage of
wages for piece workers and casual loadings. minimum wages for training that impede
the employment of trainees and part time
Minimum and award classification wages and full time apprentices.
will be protected at the level set after the
inclusion of the increase from the AIRC’s In the interim, to encourage the
2005 Safety Net Review case. Minimum employment of school based trainees
and award classification wages will be (including school based apprentices and
locked in and cannot fall below this level students attending the new Australian
and will increase as decided by the Fair Technical Colleges) from the beginning of
Pay Commission. the 2006 school year, the legislation will
ensure federal and state awards that bind
a constitutional corporation have
2.1 RESPONSIBILITIES appropriate minimum wages and
OF THE AUSTRALIAN conditions.
FAIR PAY COMMISSION The legislation will include wage
provisions based on existing federal award
Under the legislation the Fair Pay
wage arrangements for school based New
Commission will be independent of
Apprenticeships that have been agreed by
Government. This means the Government
the Australian Council of Trade Unions
cannot reject Fair Pay Commission
(ACTU) and employers, and subsequently
decisions. The Fair Pay Commission will:
approved by the AIRC.
Set and adjust the federal minimum wage;
Set and adjust minimum award
classification rates of pay;
Set and adjust federal minimum wages for
juniors, trainees (including school based
apprentices) and employees with
disabilities;
Set and adjust minimum wages for piece
workers; and
Set and adjust casual loadings.
1379614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 14
2.2 OPERATION setting wages in Australia. Rather than
arbitrary and artificial claims between
OF THE AUSTRALIAN employer organisations and unions, the
FAIR PAY COMMISSION Fair Pay Commission will adopt a
consultative approach with all interested
Legislative parameters stakeholders.
The primary objective of the Fair Pay
Commission will be to promote the
economic prosperity of the people of 2.3 STRUCTURE
Australia. OF THE AUSTRALIAN
FAIR PAY COMMISSION
In giving effect to this objective the Fair Membership
Pay Commission will have to consider:
The capacity for the unemployed and low
The Fair Pay Commission will be made up
paid to obtain and remain in employment; of five members: a Chairman who can be
appointed for a period of up to five years
Employment and competitiveness across on a full-time or part-time basis, and four
the economy;
Commissioners who can be appointed
Providing a safety net for the low paid; and for a period of up to four years on a
Providing minimum wages for junior part-time basis.
employees, and employees to whom
training arrangements apply and
The membership and structure of the Fair
employees with disabilites that ensure Pay Commission will focus the Fair Pay
those employees are competitive in the Commission on economically responsible
labour market. minimum wage decisions, which take into
account the needs of the Australian
economy as a whole, with a focus on the
Setting and adjusting minimum wages low paid and unemployed. Fair Pay
Commission members will be appointed
The Government has indicated that the under the new legislation. The Chairman
first decision of the Fair Pay Commision of the Fair Pay Commission will be
will be no later than Spring 2006. The required to have high level skills in
Fair Pay Commision will take into account business or economics. Other Fair Pay
the time since the AIRC’s 2005 Safety Net Commission members each must have
Review decision. experience in one or more of the
The Fair Pay Commission will following: business; community
independently determine the timing, scope organisations; workplace relations; and
and frequency of wage reviews, the economics.
manner in which wage reviews are to be
conducted and the date on which wage- The Secretariat
setting decisions are to come into effect. The Fair Pay Commission will be
The Fair Pay Commission can also supported by a Secretariat that is a
undertake or commission research and statutory agency. The function of the
monitor and evaluate the impact of its Secretariat will be to assist the Fair Pay
wage-setting decisions. Commission in the performance of its
The Fair Pay Commission’s decisions will functions.
be independent of Government and cannot
be appealed. The Fair Pay Commission’s
decisions will give notice of when any pay
increase will take effect.
The Fair Pay Commission will consider
any simplification of wage and award
classification structures recommended by
the Award Review Taskforce.
A better process for setting wages
The Fair Pay Commission represents a
long overdue shift from the historically
legalistic and adversarial process for
1479614_G_A4_0510_p11-18 6/10/05 5:26 AM Page 15
3. The Australian Fair Pay
and Conditions Standard
3.1 Standard conditions . . . . . . . . . . . . . . . . 15
EXAMPLE
3.2 Compliance and disputes about the
Fair Pay and Conditions Standard . . . . . . . 18 Georgina runs a motel in Hobart. Under the
federal Motels, Accommodation and Resorts
3.3 Interactions between the Fair Pay Award 1998, she is required to pay her
and Conditions Standard, instruments and employees penalty rates for work in excess of
other laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 the ordinary hours of work under the award
(38 hours per week). In the new system,
Georgina could offer her employees a
The Government will enshrine the collective agreement or AWA which offers a
following minimum conditions in federal higher hourly rate of pay for all hours of
work, including any hours in excess of 38
legislation for the first time: annual leave,
hours per week, which absorbs penalty rates
personal/carer’s leave (including sick for any hours worked beyond 38 per week.
leave), parental leave (including maternity Her employees would have the choice to
leave) and maximum ordinary hours of accept the agreement or remain covered by
work. These conditions, together with the award.
wages set by the Fair Pay Commission,
will make up the Australian Fair Pay and
Conditions Standard (the Fair Pay and
Conditions Standard). Under WorkChoices EXAMPLE
all new agreements will be required to Billy is an unemployed job seeker who is
meet the Fair Pay and Conditions offered a full-time job as a shop assistant by
Standard at all times. Costas who owns a clothing retail store in
Canberra. The clothing store is covered by a
federal award. The job offered to Billy is
3.1 STANDARD CONDITIONS contingent on him accepting an AWA.
Hours of work The AWA Billy is offered provides him with
the relevant minimum award classification
The legislation will lock in maximum wage and explicitly removes other award
ordinary hours of work of 38 hours per conditions.
week, an accepted community standard. As Billy is making an agreement under
It will be possible for ordinary hours to WorkChoices the AWA being offered to him
be averaged over a period of up to twelve must at least meet the Fair Pay and
months. Conditions Standard.
Employees must receive at least the The AWA Billy is offered explicitly removes
relevant minimum hourly wage as set by award conditions for public holidays, rest
the Fair Pay Commission for each hour breaks, bonuses, annual leave loadings,
allowances, penalty rates and shift/overtime
they are required to work. Additional
loadings.
payment for hours worked in excess of
38 hours will be a matter for awards and Billy has a bargaining agent assisting him
agreements. in considering the AWA. He understands the
details of what is in the AWA and the
Penalty rates will remain part of awards protections that the Fair Pay and Conditions
and agreements. Penalty rates can only be Standard will give him including annual
modified or removed by an express provision leave, personal/carer’s leave, parental leave
in a new agreement (see section 4.4). and maximum ordinary hours of work.
Because Billy wants to get a foothold in the
Ordinary hours of work will remain an job market, he agrees to the AWA and
allowable award matter. Awards may accepts the job offer.
provide for fewer than 38 hours as ordinary
hours, but consistent with the Fair Pay
and Conditions Standard awards will no
longer be able to provide for ordinary
working hours above 38 hours per week.
1579614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 16
EXAMPLE EXAMPLE
Liljana is a laboratory assistant in the NSW Anthony works as a metal machinist and
coal mining industry and is employed under is covered by the federal Metal, Engineering
the federal Coal Mining Industry (Staff) Award and Associated Industries Award 1998.
2004. Under her award, Liljana’s ordinary Anthony is a seven-day shift worker, that is,
hours of work are 35 hours per week. If he is rostered to work regularly on Sundays
Liljana works more than 35 hours per week, and public holidays. Anthony’s award provides
she gets paid overtime. Under WorkChoices, him with five weeks annual leave a year.
Liljana would continue to work a 35 hour Anthony’s annual leave entitlement under
week and be paid for overtime in excess of 35 the award of five weeks is the same as the
hours per week while covered by her award. new Fair Pay and Conditions Standard for
shift workers. Therefore in the new system
he will be covered by the Fair Pay and
The Fair Pay and Conditions Standard Conditions Standard.
will also provide that an employer may
require an employee to work reasonable
additional hours. Currently it is possible for an agreement
to permit employees to cash out all of
their annual leave. In WorkChoices,
This approach reflects the AIRC’s employees may request to cash out up to
reasonable hours test case decision, which two weeks of their accrued annual leave
determined that an employee may refuse to entitlement every twelve months. This can
work additional hours where working this only occur in a situation where it is
would result in the employee working explicitly provided for in the agreement
hours which are unreasonable having that covers the employee. It will be
regard to: unlawful for employers to pressure or
Any risk to employee health and safety; force employees to cash out their annual
The employee’s personal circumstances leave, and it will also be unlawful to make
including any family responsibilities; employment conditional on cashing out
The needs of the workplace or enterprise; of annual leave. The OWS will enforce
and compliance with these employee
protections. The decision whether to
The notice (if any) given by the employer of
request to cash out a portion of annual
the additional hours and by the employee
of his or her intention to refuse it. leave is solely the decision of the
employee. The employee is best placed to
judge their work-life balance. The request
If an employee believes they are being to the employer must be made in writing.
unreasonably required to work overtime Subject to the terms of any agreement
that matter should be handled in which allows the cashing out of annual
accordance with the model dispute settling leave, employers will be able to refuse a
procedure which will be included in the request to cash out annual leave.
new legislation.
EXAMPLE
Annual leave
Col’s children have grown up and left home
The Fair Pay and Conditions Standard for and he and his wife are now saving for a
annual leave will be four weeks of paid holiday. The collective agreement at Col’s
annual leave per year. There will be an workplace permits the cashing out of two
additional week of paid leave for shift weeks of annual leave every twelve months.
workers who work in businesses that Col would like to cash out two weeks of
operate 24 hours, seven days a week annual leave to help him save extra money
and regularly require employees to work to spend on his holiday.
shifts on weekends. The Fair Pay and Col will only be able to cash out his leave
Conditions Standard will include if he specifically requests to do so and his
provisions for pro-rata arrangements to employer agrees to do so. Col’s employer
cover part-time employees and those who can refuse his request.
have not yet worked for 12 months.
Annual leave in awards will be preserved.
Where awards currently provide more
generous annual leave conditions than the
new Fair Pay and Conditions Standard,
1679614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 17
the more generous conditions will apply to Standard to consolidate existing award
those still covered by awards (both current entitlements in this area. Employees are
and new employees). These preserved award generally not able to take other forms of
provisions will not form part of the new personal leave (e.g. carer’s leave) to visit a
Fair Pay and Conditions Standard for sick or dying relative or attend a funeral.
agreement making. This process is discussed Federal awards usually include around
in greater detail in the Awards Section two days per occasion of either bereavement
(for further information see section 6.1). leave or compassionate leave. Compassionate
leave is wider in scope than bereavement
leave as it includes leave to visit a seriously
EXAMPLE ill or dying relative as well as to attend a
Sarah is a nurse who works shift work funeral. As with unpaid carer’s leave,
in South Australia under the Nurses (ANF - employees may be required to produce
South Australian Private Sector) Award evidence, such as a medical certificate or
2003. Sarah is regularly rostered to work a statutory declaration, when claiming
over seven days of the week (including
Sundays and public holidays) and her award
this leave.
entitles her to six weeks annual leave a year. In total, the Fair Pay and Conditions
As Sarah’s annual leave conditions are more Standard will consist of ten days of paid
generous than the Fair Pay and Conditions personal leave per annum with two
Standard Sarah will continue to be entitled additional unpaid personal leave days for
to six weeks annual leave a year in the
caring purposes for employees who have
new system while she remains covered
by this award. exhausted their personal leave entitlement,
and two days of paid compassionate leave
Claire commences working with Sarah under per occasion.
the new system. She is also employed on the
same basis under the award and just like Personal/carer’s leave in awards will be
Sarah will be entitled to six weeks annual preserved. Where awards currently
leave a year while she remains covered by provide more generous personal/carer’s
the award. leave conditions than the new Fair Pay
and Conditions Standard, the more
generous conditions will apply to those
Personal/carer’s leave still covered by awards (both current
The Fair Pay and Conditions Standard for and new employees). Preserved award
personal/carer’s (including sick leave) provisions will not form part of the new
leave will consist of ten days of paid personal Fair Pay and Conditions Standard for
leave per annum after 12 months of agreement making. This process is
service (pro-rated for employees who have discussed in greater detail in the Awards
not completed 12 months service). This Section (for further information see
leave is cumulative. Up to ten days in any section 6.4).
given year can be used as carer’s leave.
A further two days of unpaid carer’s leave EXAMPLE
per occasion will be available in the event Seamus is a mechanic who is employed in a
of an unexpected emergency for motor engineering workshop under the
employees who have exhausted their federal Vehicle Industry - Repair, Services
personal leave entitlement or are casual. and Retail - Award 2002. Seamus has been
working there since he completed his
This additional unpaid personal leave apprenticeship two years ago. Under the
entitlement recognises that situations Award, Seamus is entitled to 60.8 hours
requiring employees to provide care can (eight days) paid personal/carer’s leave each
be frequent and unpredictable. By year, of which up to five days can be taken
incorporating this additional leave into each year as carer’s leave.
the Fair Pay and Conditions Standard the The Award provision for personal/carer’s
Government is acknowledging and leave is less than the new Fair Pay and
accommodating these circumstances by Conditions Standard of 10 days paid
providing flexible working arrangements personal/carer’s leave, of which up to 10 days
to enable employees to meet their caring can be taken each year for caring purposes.
responsibilities. Therefore, in the new system, Seamus will be
entitled to the more generous personal/carer’s
The Fair Pay and Conditions Standard will leave benefit provided by the Fair Pay and
also include two days of paid compassionate Conditions Standard.
leave per occasion. Compassionate leave is
included in the Fair Pay and Conditions
1779614_G_A4_0510_p11-18 6/10/05 3:57 AM Page 18
Parental leave Under WorkChoices these will be protected
and extended to ensure compliance with
The Fair Pay and Conditions Standard will and enforcement of the Fair Pay and
entitle employees to take up to 52 weeks Conditions Standard.
of unpaid parental leave at the time of the
birth or adoption of a child. The existing WorkChoices will also introduce a model
arrangements for unpaid parental leave dispute settling procedure (DSP) that will
under the WR Act will continue to apply be used in disputes about the Fair Pay and
and be protected by law under the Fair Conditions Standard (see section 8.1 for
Pay and Conditions Standard. more information on settling disputes).
The Fair Pay and Conditions Standard for
parental leave will apply to all full-time 3.3 INTERACTIONS
and part-time employees with at least 12
months continuous service and to eligible
BETWEEN THE FAIR PAY
casual employees. To be eligible, a casual AND CONDITIONS STANDARD,
employee must have been employed on a INSTRUMENTS AND
regular and systematic basis for a period
of at least 12 months and have a
OTHER LAWS
reasonable expectation of ongoing In relation to agreements made under
employment. WorkChoices, the Fair Pay and Conditions
Standard will apply throughout the life of
The parental leave provisions in the Fair
these agreements, which could be up to
Pay and Conditions Standard reflect an
five years. Because the Fair Pay and
award standard that has served Australia
Conditions Standard represents the
well and has been in place for full-time
minimum entitlements for all employees’
and part-time employees for over fifteen
wages and conditions, new agreements
years and for eligible casual employees
will always need to be equal to or higher
since 2001.
than the Fair Pay and Conditions
Parental leave in awards will be preserved. Standard which may change from time
Where awards currently provide more to time during the life of the agreement.
generous parental leave conditions than
State and federal agreements made under
the new Fair Pay and Conditions
the old system will continue to operate in
Standard, the more generous conditions
their current form and will not need to be
will apply to those still covered by awards
updated against the Fair Pay and
(both current and new employees).
Conditions Standard. In addition, the Fair
Preserved award provisions will not form
Pay and Conditions Standard will not
part of the new Fair Pay and Conditions
apply to existing agreements including
Standard for agreement making.
those brought in from the state systems.
This process is discussed in greater detail This is because parties have entered into
in the awards section (for further agreements under existing laws.
information see section 6.1).
Current award provisions covering
annual leave, personal/carer’s leave and
3.2 COMPLIANCE AND parental leave will be preserved and
those that are more generous than the
DISPUTES ABOUT THE Fair Pay and Conditions Standard will
FAIR PAY AND CONDITIONS continue to apply to existing and new
STANDARD employees still covered by awards.
Preserved award conditions will not
The WR Act currently provides an form part of the Fair Pay and Conditions
extensive compliance regime to ensure Standard for agreement making.
employees get their correct terms and
conditions of employment as set out in
awards, collective agreements and AWAs.
The compliance regime allows specified
persons (usually employers, employees,
unions or inspectors) to enforce civil
penalties and/or the recovery of
underpayments where employees are
not paid properly.
1879614_G_A4_0510_p19-30 6/10/05 3:57 AM Page 19
4. Agreements
4.1 Simpler agreement making . . . . . . . . . .19 employers and employees seeking their
own legal advice and assistance.
4.2 Simplified lodgement, variation and Employees will of course be able to have
termination of agreements . . . . . . . . . . . . . .20
access to their union representatives and
4.3 Types of agreement . . . . . . . . . . . . . . . . .21 the right to appoint and consult with a
bargaining agent (who can act on their
4.4 Protecting award conditions behalf in relation to an AWA or an
in bargaining . . . . . . . . . . . . . . . . . . . . . . . .22 employee collective agreement).
4.5 Agreement content . . . . . . . . . . . . . . . . .23 WorkChoices will also protect employees
under 18 who are entering into an AWA
4.6 Transitional arrangements . . . . . . . . . . .24 by requiring the approval of a parent or
guardian to the AWA before the agreement
4.7 Relationship between types of agreements,
can be lodged with the OEA.
other instruments and the Fair Pay and
Conditions Standard . . . . . . . . . . . . . . . . . . .24 Employers and employees will be able to
ask the OEA to check agreements before
4.8 Agreement dispute resolution . . . . . . . .25
they are lodged to ensure that they do not
contain prohibited content (see section 4.5
for further information on prohibited
content).
4.1 SIMPLER AGREEMENT
The OEA will provide employers with an
MAKING information statement that employers
OEA managing lodgement must give employees when seeking their
approval of an agreement. The
In WorkChoices, agreement making will information statement will include
be significantly easier for both employees employer rights and responsibilities in
and employers. A lodgement-only system agreement making and the protections
for all agreements will be introduced. In and services available to employees during
support of the new lodgement system a the agreement making process.
statutory declaration attesting that the
agreement was negotiated in compliance
EXAMPLE
with the law will need to be lodged with
the agreement. The statutory declaration Tariq recently arrived in Australia and is still
coming to terms with the English language.
will replace the current complex, time
The employees at the factory where Tariq
consuming and legalistic certification and works are about to vote on a proposed
approval processes. collective agreement. The OEA will be able to
All agreements will be lodged with the assist Tariq to understand the agreement he
OEA, will commence on lodgement and will be voting on by explaining the terms of
the agreement in a way so that Tariq
will need to meet the Fair Pay and
genuinely understands the process and what
Conditions Standard throughout the life of is proposed in the agreement. Tariq will also
the agreement. have access to a bargaining agent to assist
him in the negotiation process.
Assistance with agreement making
The OEA’s role will include providing
advice to both employers and employees The OEA will also be able to explain the
on agreement making. This will be similar content of agreements in ways appropriate
to its current functions under the WR Act, to an employee’s specific needs including,
which requires the OEA to provide advice for example, the circumstances of persons
and assistance to employees and from a non-English speaking background
employers on their rights and obligations. and young persons. In addition, a parent
This service will be free, and available to or appropriate adult will be required to
all employees and employers. However, the consent to the content of an AWA on
advice will not replace or prevent behalf of any employee under 18.
1979614_G_A4_0510_p19-30 6/10/05 3:57 AM Page 20
making, there will be an improved
EXAMPLE compliance regime with financial penalties
Bernard is a 17 year old school student who for failing to follow the procedural
works as a cinema usher on the weekend requirements.
under the Entertainment and Broadcasting
Industry - Cinema Award - 1998. Bernard’s A broader range of remedies, including:
employer would like to negotiate an AWA setting aside or varying an agreement;
with Bernard. To ensure Bernard is not compensation; financial penalties; and
agreeing to something inappropriate, injunctive relief, will be available against
Bernard will have to obtain the signature of any employer who lodges an agreement
an appropriate adult consenting to the without obtaining employee approval, and
content of Bernard’s AWA. Bernard will also against anyone who engages in false or
be able to appoint a bargaining agent (which misleading conduct, coercion or duress
can include a parent, other adult or a union during the agreement making process.
representative).
It will be unlawful to dismiss Bernard if he is
unable to obtain appropriate adult consent. Employers and employees bound by the
agreement will be able to bring these claims
to the OWS for assistance, enforcement and
The OEA will provide employers with a if necessary prosecute any breaches.
declaration form to be used when lodging Prosecutions may be pursued by:
agreements. This will assist employers to An employer bound by the agreement;
ensure that they are providing accurate
information when lodging agreements. An employee bound by the agreement;
A union bound by the agreement;
A union on behalf of an employee bound by
4.2 SIMPLIFIED the agreement (provided an employee has
LODGEMENT, VARIATION asked the union to act on his/her behalf
and the union is entitled to represent the
AND TERMINATION industrial interests of the employee in
OF AGREEMENTS relation to the work carried out by the
employee under the agreement);
Requirements for lodgement If the agreement is an AWA, a bargaining
The process for making both collective agent of an employee or employer bound
agreements and AWAs will be simpler. by the agreement;
Prior to seeking employees’ approval of an A workplace inspector; and
agreement, employers will be required to Any other person specified in regulations.
provide a consideration period of at least
seven days. At no later than the beginning
of the seven day consideration period, Claims against any employer who lodges
employers will be required to provide an agreement without obtaining employee
employees with ready access to the approval, and against anyone who engages
proposed agreement with an information in false or misleading conduct, coercion or
statement from the OEA. duress during the agreement making
The OEA information statement will process can be brought to the OWS.
ensure employees have information about
the agreement making process. It will EXAMPLE
inform employees that they can obtain Eric believes his employer coerced him and
advice about agreement making from the several other employees into supporting a
OEA. It will include the date and method collective agreement. Eric can contact the
of the vote for an employee or union OWS with his complaint.
collective agreement. The OWS will investigate the complaint, and
The seven day consideration period can if the OWS believes that the complaint is
genuine, the OWS will prosecute Eric’s
be waived by the employees, but only employer for a breach of the WR Act.
where all employees who would be
covered by the agreement agree to do so
in writing. For collective agreements, a These protections will ensure that employees’
valid majority of employees will need to approval of the agreement was genuine.
approve the agreement.
There will also be in-built protections in
To ensure that employers meet the the agreement making process to ensure
procedural requirements for agreement that claims are genuine.
20You can also read
