WorkChoices A simpler, fairer, national Workplace Relations System forAustralia
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WorkChoices
A simpler, fairer,
national
Workplace Relations
System forAustralia
CONTENTS
WHY THE NEED FOR CHANGE? 4
WHAT’S CHANGING AND WHAT ISN’T 6
NEW PROTECTIONS FOR MINIMUM WAGES
AND CONDITIONS 8
WORKCHOICES AND AWARDS 13
A SIMPLER, FAIRER SYSTEM 14
HOW WILL THE CHANGES AFFECT YOU? 15
© 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/cca
PROTECTED BY LAW Minimum and award classification wages. Annual leave. Personal/carer’s leave (including sick leave). Parental leave (including maternity leave). Maximum ordinary hours of work. Protection against unlawful termination. Specified existing award conditions like penalty rates, overtime and long service leave. The right to join and be represented by a union. The right to have a bargaining agent. The right to lawful industrial action when negotiating an agreement. Employees can’t be forced to change their existing agreements.
Why the need for change? 4 4
Moving towards one simpler, national system.
Australia continues to change. A fairer system.
Over the last ten years, something We also need to make our workplace
important has been happening in relations system fairer and provide a better
Australian workplaces. Australian workers balance in the workplace for employees
and Australian businesses have started to and employers.
change the way they work. These changes must ensure that award
As a group and individually, more wages and specified existing conditions,
employees and employers have been sitting along with the right to be represented by
down together, talking and working out a union, are protected by law.
their own workplace arrangements. These changes should also provide extra
As a result, both employees and employers help for employees to know their rights.
have benefited. There have also been more And these changes must provide additional
job opportunities created for women and support for employees in cases of unlawful
school leavers. termination.
A stronger economy. A simpler system.
This co-operative approach has been We also need to make our workplace
helping Australia build one of the strongest relations system simpler. Australia has over
economies in the western world. We are 130 different pieces of industrial relations
exporting more. We’ve created over 920,000 legislation, over 4,000 different awards and
new, permanent, full time jobs. Australia’s six different workplace systems operating
unemployment rate has been markedly across the country.
reduced, reaching a 30 year low and
There are too many rules and regulations
interest rates are at historically low levels.
making it hard for many employees and
Securing the future. employers to get together and reach
Australia has come a long way, but we agreement in their workplaces.
can’t stand still. More needs to be done. We also have too much red tape, too much
If we are to grow and prosper, we need to complexity and too much confusion in
continue working together to implement some parts of the current system. It’s bad
fair, practical and sensible changes to for business, it costs jobs and it’s holding
our workplaces. Australia back.
These changes need to provide For all these reasons, the Australian
more choice and flexibility for Government is moving towards one, simpler
both employees and employers national workplace relations system.
in their workplaces, so we It’s called WorkChoices.
can find better ways to Importantly, it will make it much simpler
reward effort, increase for employees and employers to get
wages, and balance work together, talk and work out the workplace
and family life. arrangements that best suit them.
Improving our living standards.
By encouraging people to work together
and by continuing the improvement in
our workplaces, WorkChoices will also help
continue the improvement in our living
standards and quality of life. And that’s
something worth working for.
This booklet outlines how WorkChoices
will affect you. Take some time to read
through it, and if you have any other
questions, just call the WorkChoices hotline
on 1800 025 239 or visit the WorkChoices
website at www.workchoices.gov.au
5 5
What’s changing.
With the introduction of WorkChoices, the
Australian Government will initiate a range of
changes that will make the workplace relations
system simpler, fairer and more flexible.
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.
6
And what isn’t.
Though some things will change with the
introduction of WorkChoices, Australian workers
can rest assured that fundamental protections
will remain.
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.
7
New protections for minimumwages and conditions. 8 8
A NEW, INDEPENDENT WAGE NEW STANDARD CONDITIONS.
SETTING BODY.
1. Hours of work.
To make the system simpler and fairer, a
new and totally independent wage setting WorkChoices will lock in maximum
body will be created with the primary ordinary hours of work of 38
objective of promoting the economic hours per week - an accepted
community standard. It will be
prosperity of the people of Australia. The
possible for ordinary hours to be averaged
Australian Fair Pay Commission (Fair Pay
over a period of up to twelve months.
Commission) will include members that
have experience in one or more of: Employees must receive at least the
business, community organisations, relevant minimum hourly wage as set by
workplace relations and economics. the Fair Pay Commission for each hour
they are required to work.
MINIMUM AND AWARD Additional payment for hours worked in
CLASSIFICATION WAGES. excess of 38 hours will be a matter for
awards and agreements.
As part of its responsibilities, the Fair Pay Ordinary hours of work will remain a
Commission will set and adjust minimum matter that can be included in awards.
and award classification wages: Awards may provide for fewer than 38
A single minimum wage. hours as ordinary hours, but (consistent
Minimum wages for award with the new Fair Pay and Conditions
classification levels. Standard) will no longer be able to provide
Minimum wages for juniors, trainees/
for ordinary working hours above 38
apprentices and employees with disabilities. hours per week.
Minimum wages for piece workers. Award provisions providing for fewer
Casual loadings.
than 38 ordinary hours per week will
continue to operate but award provisions
providing for more than 38 ordinary
After increases to minimum and classifi- hours per week will cease to operate.
cation wages in awards have been made
following the AIRC’s 2005 Safety Net Review,
they will be locked in and not be allowed EXAMPLE
to fall below this level and will increase as Georgina runs a motel in Hobart. Under the
decided by the Fair Pay Commission. relevant award, she is required to pay her
employees penalty rates for work in excess of
the ordinary hours of work under the award
A NEW STANDARD. A SAFETY (38 hours per week). In the new system,
NET GUARANTEED BY LAW. Georgina could offer her employees a
The Government will enshrine in law collective or individual agreement which
minimum conditions of employment: offers a higher hourly rate of pay for all
hours of work, including any hours in excess
of 38 hours per week, which absorbs penalty
NEW STANDARD CONDITIONS
rates for any hours worked beyond 38 per
The minimum conditions include: week. Her employees would have the choice
1. Maximum ordinary hours of work. to accept the agreement or remain covered by
2. Annual leave. the award.
3. Personal/carer’s leave (including sick leave).
4. Parental leave (including maternity leave).
EXAMPLE
These minimum conditions, together with Liljana is a laboratory assistant in the NSW
the minimum and award classification wages coal mining industry and is employed under
set by the Fair Pay Commission, make up an award. Under her award, Liljana’s ordinary
hours of work are 35 hours per week. If
the new Australian Fair Pay and Conditions
Liljana works more than 35 hours per week,
Standard (Fair Pay and Conditions Standard).
she gets paid overtime. In the new system,
All new agreements will be required to Liljana would continue to work a 35 hour
meet the new Fair Pay and Conditions week and be paid for overtime in excess of 35
Standard at all times when the agreement hours per week while covered by her award.
is in operation.
9
2. Annual leave. 3. Personal/carer’s leave.
The new Fair Pay and Conditions The new Fair Pay and Conditions
Standard for annual leave will be Standard for personal/carer’s
four weeks of paid annual leave per year, leave will consist of ten days of paid
with an additional week of paid leave for personal leave per annum after 12 months
certain types of shift workers. of service (pro-rated for employees who
The new Fair Pay and Conditions have not completed 12 months service).
Standard will include key This leave is cumulative.
provisions for pro-rata Up to ten days in any given year
arrangements to cover part-time can be used as carer’s leave. The
employees and those who have not new Fair Pay and Conditions
yet worked for 12 months. Standard will also include two
Currently it is possible for days of paid compassionate leave
employees under an agreement to per occasion. Compassionate
cash out all of their annual leave. leave is leave to visit a seriously
Under WorkChoices, employees ill or dying relative as well as to
may request to cash out up to two attend a funeral.
weeks of their accrued annual leave A further two days of unpaid
entitlement every twelve months. carer’s leave per occasion will be
This can only occur in a situation available in the event of an
where it is explicitly provided for unexpected emergency for
in an agreement that covers the employees who have exhausted
employee; and where the employee their personal leave entitlement
requests the cashing out in writing. or are casual.
It will be illegal for employers to pressure Personal/carer’s leave in awards will be
or force employees to cash out their preserved. Where awards currently
annual leave, and it will also be illegal provide more generous personal/carer’s
for cashing out of annual leave to be leave conditions than the new Fair Pay
a condition of employment. and Conditions Standard, the more
Annual leave in awards will be preserved. generous conditions will apply to those
Where awards currently provide more still covered by awards (both current
generous annual leave conditions than and new employees). Preserved award
the new Fair Pay and Conditions provisions will not form part of the new
Standard, the more generous conditions Fair Pay and Conditions Standard for
will apply to those still covered by agreement-making.
awards (both current and new employees).
Preserved award provisions will not
form part of the new Fair Pay and EXAMPLE
Conditions Standard for agreement- Seamus is a mechanic who is employed in a
making. motor engineering workshop under the
federal Vehicle Industry - Repair, Services
and Retail - Award 2002. Seamus has been
EXAMPLE working there since he completed his
Sarah is a nurse who works shift work in apprenticeship two years ago. Under the
South Australia under the Nurses (ANF- award, Seamus is entitled to 60.8 hours (8
South Australian Private Sector) Award 2003. days) paid personal/carer’s leave each year, of
Sarah’s award entitles her to six weeks which up to 5 days can be taken each year as
annual leave a year. As Sarah’s annual leave carer’s leave.
conditions are more generous than the Fair As the award provision for personal carer’s
Pay and Conditions Standard, Sarah will leave is less than the new Fair Pay and
continue to be entitled to six weeks annual Conditions Standard of 10 days paid
leave a year in the new system while she personal/carer’s leave, of which up to 10
remains covered by this award. days each year can be taken as carer’s leave,
Claire commences working with Sarah under in the new system Seamus will be entitled to
the new system. She is also employed on the the more generous personal/carer’s leave
same basis under the award and just like benefit provided by the Fair Pay and
Sarah will be entitled to six weeks annual leave Conditions Standard while he remains
a year while she remains covered by the award. covered by the award.
104. Parental leave. PROTECTION AGAINST
The new Fair Pay and Conditions UNLAWFUL TERMINATION.
Standard will entitle employees to
Every Australian worker, regardless of
take up to 52 weeks of unpaid parental
the size of the business they work in, will
leave at the time of the birth or adoption
continue to be protected from unlawful
of a child.
termination.
Both parents cannot be on leave at the
same time, other than one week of leave at
the time of the birth or three weeks in the It is unlawful to terminate someone
case of adoption. because of:
The amount of unpaid parental leave is Temporary absence from work
reduced by any amount of other leave because of illness or injury;
taken (including paid maternity, paternity, Trade union membership;
personal or annual leave) by either parent. Non-membership of a trade union;
The new Fair Pay and Conditions Standard Seeking office as, or acting or having
will apply to all full-time, part-time and acted in the capacity of, a representative
eligible casual employees (with at least 12 of employees;
months’ continuous service with their
The filing of a complaint, or the
current employer). An eligible casual participation in proceedings, against
employee is a casual employee employed on an employer;
a regular and systematic basis for a period
Race, colour, sex, sexual preference, age,
of at least 12 months and who has, but for
physical or mental disability, marital
the pregnancy or adoption, a reasonable status, family responsibilities, pregnancy,
expectation of ongoing employment. religion, political opinion, national
Employees will also be entitled to unpaid extraction or social origin;
special maternity leave of an amount as Refusing to negotiate, make, sign,
directed by a registered medical extend, vary or terminate an AWA;
practitioner if the pregnancy terminates
Absence from work during maternity
by means other than a live birth within 28 leave or other parental leave;
weeks of the expected birth date or in the
case of pregnancy-related illness. Temporary absence from work because
of the carrying out of a voluntary
emergency management activity.
Parental leave in awards will be
preserved. Where awards currently
provide more generous parental leave It will also be unlawful for anyone to
conditions than the new Fair Pay and apply duress to an employee in relation
Conditions Standard, the more generous to negotiating and signing an AWA.
conditions will apply to those still Employees who believe they have been
covered by awards (both current and unlawfully terminated will be eligible to
new employees). Preserved award receive up to $4000 worth of legal advice.
provisions will not form part of the This will be based on the merits of their
new Fair Pay and Conditions Standard case if they have a certificate from the
for agreement-making. AIRC and if they are assessed as having
financial need.
Unfair dismissal laws will also continue
to apply to businesses with over 100 staff,
though workers will need to have been
employed by the company for at least six
months before they can make an unfair
dismissal claim.
Businesses with up to and including 100
staff will be exempt from unfair dismissal
laws because previous laws prevented
many businesses from hiring more staff.
This change will help generate more job
opportunities for Australians, particularly
for those who currently don’t have a job.
11Parental leave
protected by law.
12WorkChoices and
awards.
Protection for workers not What will change.
covered by agreements. As the Government has previously said,
Awards will not be abolished. matters such as restrictions on
Employees not covered by a Workplace apprenticeships/traineeships, independent
Agreement will continue to work under contractors and labour hire workers will be
their awards. The new Fair Pay and removed from awards.
Conditions Standard will also apply to
award reliant employees (except where In the legislation, and consistent with its
the relevant award has a more generous long held view, the Government will clarify
provision in which case the more that union picnic days, trade union training
generous provision will apply). The AIRC leave and tallies should not be included in
will continue to be responsible for awards. awards.
Because agreements will be simpler to make
Protecting award conditions. under WorkChoices, enterprise flexibility
In the new system long service provisions are no longer necessary in
leave, superannuation, jury service awards. Skill based career paths will be
and notice of termination will not be matters for the Fair Pay Commission and
included in new awards because they are will also be considered by the Award Review
provided for in other legislation. Taskforce as part of its examination
However these provisions in current of award classification wage structures.
awards will continue to apply to existing
and new employees covered by these Protecting award conditions in
bargaining.
awards. This means award reliant
employees will continue to enjoy the benefit In negotiating new workplace agreements,
of these provisions in their current awards. certain award entitlements will be protected
in the new system, though bargaining can
Award provisions which are more generous
occur on these entitlements and approval of
than the Fair Pay and Conditions Standard
employees is required to change them.
(annual leave, personal/carer’s leave, parental
leave and hours of work) will also continue to
apply. If there is a difference between the The entitlements are:
Fair Pay and Conditions Standard and these
Public holidays.
award conditions, the more generous
provision will continue to apply. Rest breaks (including meal breaks).
Incentive based payments and bonuses.
Annual leave loadings.
EXAMPLE
Allowances.
Tina is a nurse in Victoria. Tina is employed
Penalty rates.
under the Nurses (Victorian Health Services)
Award 2000 which entitles her to 6 months Shift/overtime loadings.
long service leave after 15 years service.
This award condition will be preserved in the
new system. This means that Tina will These entitlements in a new agreement
continue to have the benefit of this long service can only be modified or removed by
leave provision in the award and it will apply specific provisions in that new agreement
to all existing and new employees covered by with the approval of employees.
that award.
If these entitlements aren’t mentioned in
Carolyn commences working with Tina under the new agreement, the award provisions
the new system. She is also employed under
will continue to operate.
the same award and just like Tina will be
entitled to 6 months long service leave after 15 A Collective Agreement or AWA under
years service while she remains covered by the WorkChoices need simply set out how
award. the new agreement will either change or
remove these matters in that agreement.
13A simpler, fairer system.
WorkChoices will make the Workplace
Relations System in Australia simpler and
fairer for both employees and employers.
A SIMPLER AGREEMENT-
MAKING PROCESS.
To reduce delays and uncertainty in
agreement-making, a streamlined process
will be introduced.
All agreements will now take effect from
the date they are lodged with the Office of
the Employment Advocate.
So once an agreement has been lodged it
will start to operate and people can start
working under the new arrangements.
The current complex certification process a new compliance regime that will be
for collective agreements and the approval enforced by the Office of Workplace
process for AWAs will no longer apply. Services (OWS).
Varying or terminating of agreements has The OWS will be given extra resources to
also been simplified. New agreements can ensure employees and employers know
now be varied or extended up to a their rights and obligations and that these
maximum of five years or terminated by are fairly enforced.
agreement between employees and
employers.
ONGOING ROLE OF THE
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION.
Because the new workplace relations
system is based on co-operation, employees
and employers will be encouraged to
resolve disputes between themselves.
To support this aim, the legislation will
include a model Dispute Settling
Procedure that will be included in all
awards and which employees and
employers can choose to use when
resolving their workplace disputes over an
agreement.
The legislation will also establish a
register of private Alternative Dispute
A FAIRER SYSTEM. Resolution providers that will support
Whether you’re an employee or an genuine choice between the AIRC’s dispute
employer, your rights will be protected settling expertise and other dispute
under the new system by the Office of resolution specialists.
Workplace Services. Penalties will apply Disputes can also be referred to the AIRC.
for breaches of awards and agreements. The role of the AIRC will be to mediate
Of course, both employees and employers between the parties and assist them in
will be expected to meet their obligations. reaching their own dispute settlement.
The Fair Pay and Conditions Standard, The AIRC will also have responsibility for
Federal awards and agreements, and any simplifying awards, regulating industrial
State awards and agreements brought action, regulating registered organisations
into the Federal system will all fall under and unfair dismissal matters.
14How will the changes affect you?
WorkChoices will directly cover up to 85% of Australian workers. That includes everyone working for
incorporated companies as well as employees of Australian Government bodies (such as the Australian
Tax Office) and employees working under State awards or agreements who are employed by a
Constitutional corporation. WorkChoices will not affect employees of unincorporated businesses
and those State government bodies not currently in the Federal system. Unincorporated businesses
already in the Federal system will be able to remain in the system for up to 5 years.
PEOPLE ON FEDERAL AWARDS.
If you currently work under a Federal award, your minimum wages and basic
entitlements (such as annual leave, personal/carer’s leave, parental leave and a
maximum 38 hour ordinary working week) will be guaranteed by law under
the new Fair Pay and Conditions Standard. If your award differs from the Fair
Pay and Conditions Standard, the more generous of the two will apply. There
will be protected award conditions such as public holidays, rest breaks,
incentive-based payments & bonuses, annual leave loadings, allowances and
overtime loadings. These protected award conditions can be the subject of
workplace bargaining, though they can only be modified or removed by
specific provisions in an agreement. If these entitlements aren’t mentioned in
the agreement the award provisions will continue to operate.
PEOPLE ON FEDERAL COLLECTIVE AGREEMENTS.
If you currently work under a Federal Collective Agreement, all the working
conditions and entitlements negotiated in that agreement will remain except for
clauses which inhibit the ability of the parties to bargain or are currently
prohibited such as compulsory union bargaining fees for non-union members.
Otherwise, no changes can be made without the approval of the employees to the
agreement. In relation to Collective Agreements made under the new system, the
Fair Pay and Conditions Standard will apply throughout the life of these
agreements, which can be up to 5 years. Because the Fair Pay and Conditions
Standard represents the minimum which all employees are entitled to, wages
and conditions in agreements will always need to be equal to or higher than the
Standard, which may change from time to time.
PEOPLE ON AWAs.
If you currently work under an AWA, the conditions and entitlements you
negotiated in that agreement will remain intact. No changes can be made to your
AWA without your specific approval.
In relation to AWAs made under the new system, the Fair Pay and Conditions
Standard will apply throughout the life of these agreements, which can be up
to 5 years. Because the Fair Pay and Conditions Standard represents the
minimum which all employees are entitled to, wages and conditions in
agreements will always need to be equal to or higher than the Standard, which
may change from time to time.
PEOPLE MOVING INTO THE NEW SYSTEM.
If you currently work under a State award or agreement and are moving to
the national system, your State award or agreement will become a transitional
agreement that applies to your workplace and protects your current working
conditions until replaced by a new agreement. Some content in former State
awards and agreements such as union preference clauses or those which are
currently prohibited in the Federal system will be unenforceable, like
compulsory union bargaining fees for non-union members.
PEOPLE IN VICTORIA.
Because Victoria led the way in referring its workplace relations powers to
the Commonwealth, you will continue to be covered by the Federal system
regardless of whether you are employed by an incorporated company or not.
All employees in Victoria will benefit from the Fair Pay and Conditions
Standard, ensuring that minimum wages and conditions are guaranteed by
law.
15For more information call the WorkChoices
hotline on 1800 025 239 or visit the WorkChoices
website www.workchoices.gov.au
Authorised by the Australian Government, Capital Hill, Canberra, ACT.
Written by Senator the Hon. Eric Abetz, Special Minister of State.
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