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Employment law

Giving the primary focus to collective rather than individual bargaining

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The policy centres around collective enterprise agreement making, as opposed to individual agreements such as Australian Workplace Agreements (AWA’s) or statutory individual contracts.Agreements may be made between employers and unions or employers and groups of employees in a workplace who are not union members.

Collective Greenfield Agreements may also be negotiated between an employer and a union. There will be an approval process for agreements through Fair Work Australia.
The Participants who engage in Collective Bargaining will be required to do so in good faith. This includes attending meetings, disclosing relevant information, responding quickly to proposals, giving genuine consideration to proposals and refraining
from capricious or unfair conduct which undermines freedom of association or collective bargaining.

Labor has emphasised that it “believes that Australian Workplace Agreements should not be a part of Australia’s future.”2

The estimate is that 5% of the Australian workforce is a party to an AWA. The ALP intends to move all of that 5% off AWAs by 2010. It will do this by means of Individual Transitional Employment Agreements, or ITEAs. Although all existing
AWAs will run their full course of up to five years post the election, upon expiry of an AWA the employee will be moved to an ITEA – that is what the document will then be called. These instruments will function as a ‘bridge’ from the expired AWA to another industrial instrument, such as an award or collective enterprise agreement, and are intended to expire by 31 December 2009 at the latest. Labor’s projected chronology of the transition process notes that the last possible expiry date for any AWA will be 31 December 2012.3 Thus, its intention appears to be that those employees who were previously covered by an AWA will ultimately move to awards, collective agreements or common-law contracts.

A likely outcome is that in a large number of cases where AWAs apply, nothing will be done by the parties to them prior to the end of 2009. That probably means the relationship will become award – free, and the AWA will then revert to the status
of a common law contract.

Employees who wish to collectively bargain will be able to do so. In a unionised workplace, they can elect to have the relevant union act as their bargaining agent; alternatively, employees in both unionised and union-free workplaces may bargain
directly with their employer, with promised assistance from Fair Work Australia.

Industrial Action

With the exception of a stronger role for the umpire, Labor’s new approach to industrial action is identical to that of the Howard Government. Protected action will only be allowed during an approved bargaining period for a collective enterprise
5 agreement; industrial action will be prohibited if it is in support of pattern bargaining; and a secret ballot must be held if protected action is proposed. The only difference is that Labor would assign the responsibility for supervision of the processes surrounding protected industrial action to Fair Work Australia.4

Employment law

10 National Employment Standards

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The following minimum standards will apply to all employees irrespective of their industry or occupation.
• Hours of work – there will be a 38 hour standard week for full-time employees. Additional hours could be required where those hours are not unreasonable.
• Parental leave – it will be possible for both parents to have separate periods of 12 months unpaid parental leave and the ability of one parent to request an additional 12 months leave.
• Flexible work for parents – there will be a right to request flexible work arrangements up until children reach school age. This may only be refused on reasonable business grounds.
• Annual leave – full time employees will be entitled to 4 weeks paid annual leave (pro-rated for part-time employees).
Shift workers will be entitled to 5 weeks paid annual leave.
• Personal, carer’s and compassionate leave – full time employees will be entitled to 10 days paid personal/carer’s leave per year (pro-rated for part-time employees), 2 days per year of paid compassionate leave and 2 days unpaid personal leave
for genuine caring purposes and family emergencies.
• Community service leave – there will be paid leave for prescribed community service activities such as jury duty and emergency services duties.
• Public holidays – 8 national public holidays will be guaranteed in addition to state and local public holidays, alternatively there will be a right to be paid appropriate penalty rates or other compensation when an employee is required to work on a public holiday.
• Provision of information in the workplace – employers will be obligated to provide employees with information regarding their rights and entitlements at work.
• Termination of employment and redundancy – up to 4 weeks notice of termination of employment will be required for all employees based on a sliding scale according to years of service and a statutory entitlement to redundancy pay for employees in workplaces with 15 or more employees.
• Long service leave – the current arrangements will remain in state or federal laws until a national standard is established.
Up to 10 more minimum employment standards in awards
Labor has placed great emphasis on the importance of the award system within its proposed national IR system. Words and phrases such as “flexible”, “family-friendly”, “efficient” and “safe” are much in evidence in its Policy Implementation Plan.
It intends to have awards ‘modernised’ and ‘simplified’ by the AIRC. It also intends these modernised awards to apply (by Common Rule, presumably) to all employees who are not covered by a collective agreement or a common-law contract. Labor has also fashioned a proposed award safety net for those earning less than $100,000, consisting of 10 additional standards, or ‘award matters.’

These include:
• Minimum wages – this includes skill based classifications, career structures, incentives based payments, bonuses, wages and apprentices and trainee arrangements.
• Type of work performed – this includes permanent, casual, using flexible work arrangements or job sharing.
• Arrangements for when work is performed – this includes hours of work, rostering, rest breaks and meal breaks.
• Overtime rates – will be provided for working long hours.
• Penalty rates – will be provided for employees who work unsocial, irregular or unpredictable hours or on weekends, public holidays and as shift workers.
• Annualised wage or salary arrangements – this will have regard to the patterns of work in an occupation, industry or enterprise as an alternative to the payment of penalty rates.
• Allowances – this includes the reimbursement of expenses, higher duties and disability payments.
• Leave and leave loading – including arrangements for taking leave
• Superannuation Consultation – including representation and dispute settling procedures.
Under Labor’s proposal, awards will not be extended to cover employees who are traditionally award free. However, they will be reviewed every four years to ensure they remain relevant to those covered by their terms.
Those earning at least more than $100,000 can presumably look after themselves during the negotiating process; Labor claims that this will provide “flexibility for those who are doing well.”
As has been the case for many years, awards will still probably set minimum, and not prescribed conditions. The tradition of “over award” conditions or payments will be allowed to continue, we may expect.
This element of their policy appears to have little purpose other than to re-assure the union movement. It will have little effect by way of restoring centralised wage fixing or similar, which began to disappear under the previous Labor Government, which actively encouraged decentralised one off agreements.