Industrial Action
All industrial action except for protected action has been outlawed, as has industrial action during the term of an agreement. Tough new conditions in Workchoices also requires secret ballots before industrial action is taken and require that a minimum
of four hours pay must be docked if employees take industrial action. Additionally, employers are able to lock employees out in an industrial dispute and employers no longer have to wait for a s166A certificate for access to common law remedies for unprotected action.
S 170MX arbitrated awards has been replaced with a provision for a workplace determination. This is the only circumstance where the AIRC can arbitrate. The remedy allows the Minister to issue a declaration where industrial action is threatening
peoples life, safety or the welfare of the economy.
Right of Entry
Workchoices has introduced very tough right of entry rules. Unions have no right of entry at AWA or collective non union agreement workplaces for discussion and recruitment. In order to investigate a breach at any workplace, officials are required
to give at least 24 hours notice. If they require entry to investigate a breach of an AWA, the affected employee must provide written consent.
When investigating a breach, unions may only have access to the records of union members, unless they have an order from the AIRC to investigate the non union member and comply with the employers’ requests as to where they can meet with the workers. There is a ‘fit and proper purpose’ test in order to gain these permits. Additionally, the grounds on which the permits can be revoked have been expanded.
Freedom of Association
Workchoices made substantial changes to freedom of association laws. These were designed to water down the provision that unions relied upon in the waterfront dispute in 1998. In this dispute unions claimed that sacked workers were being injured in their employment because of their entitlement to an industrial instrument. During the dispute, this only ad to be one of the reasons why there were dismissed. With the Workchoices changes, it has to be the sole or dominant reason.
Transmission of Business
Agreements and awards that transfer to a new employer will only survive for 12 months. However, due to a Family First amendment, redundancy entitlements due to employees will last at least two years after the transmission of business. Though, they could still be lost if employees signed a new agreement, as redundancy pay is not a ‘protected’ award condition under Workchoices.
The implementation of the Fairness test legislation enforces the notion that prohibition on AWA duress applies when an employer who has acquired a business seeks to continue employment with a condition that an AWA be signed.
Termination of Agreements
Agreements which have passed their nominal expiry date can be terminated by either party by giving 90 days notice, with the AFPC’s and the protected award conditions a safety net if a replacement agreement is not agreed upon.
Dispute Resolution
There are no longer compulsory powers of conciliation and arbitration vested in the AIRC. Instead of this, the AIRC will provide voluntary dispute resolution services. The only exception to this is terminating a bargaining period where industrial action is threatening life or causing damage to the economy.
Unlawful Termination
It is illegal to terminate employment for discriminatory reasons. These include union membership, sex, race and pregnancy or for refusing to sign or vary an AWA. Unlawful termination claims are heard in either the Federal Court or the Federal Magistrates Court. Employees making such a claim, are provided up to $4000 worth of legal advice from the Government.
Institutions
The Government’s reforms have greatly altered the AIRC. They have done this by removing its wage-setting and agreement making function. However it retains some powers for unfair dismissal, bargaining and dispute resolution purposes. With its legislation, it has established the Fair Pay Commission, Workplace Authority (previously the Office of the Employment Advocate), Workplace Ombudsman (previously the Office of Workplace Services) and the Australian Building and Construction Commissioner (ABCC).
Building and Construction
The Government will retain its industry specific construction legislation, plus the ABCC. The ABCC has wide reaching investigative powers. Also to be retained is the building code of conduct and guidelines.