Tag Archives: industrial relations australia

Employment law

The Government’s Industrial Relations System

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What is the Government’s industrial relations system? Workchoices came into effect in early 2006 as a sweeping reform. The coalition maintains that Workchoices is the best system for Australia. They believe it has provided employees with greater flexibility to achieve a proper work/life balance. Below is a brief summary of what the Governments industrial relations policy and legislation includes.

National System

The Government relied on the Constitution’s corporations power in an attempt to implement a national industrial relations system. However, some State Government employees plus employees of unincorporated organizations do not fall within this power and are not affected by Workchoices. The Commonwealth Government still has five states which have not signed over their state industrial relations powers to operate alongside the federal system. So far Victoria is the only state to do so.

No Disadvantage Test

The Fairness test which has been implemented under Workchoices is effectively a ‘no disadvantage test.’ However, the fairness test differs slightly as it takes into account both monetary and non monetary compensation, provides for ‘fair’ rather than ‘full’ compensation, allows the Workplace Authority to consider an employees personal circumstances and it does not apply to AWA’s where the person who is a party to that AWA is earning over $75 000. Agreements begin to operate from the date they are lodged with Workplace Authority. However, most are subject to the
fairness test and if the agreement fails the test, then the employer is obligated to provide back pay to the employee to compensate for the money not paid. The Fairness Test has largely neutralized Workchoices. In fact, in terms of its practical application, it could almost be said that the Prime Minister withdrew Workchoices when he introduced the Fairness Test in May 2007. The usual supporters of the Government such as the National Farmers Federation were not consulted, and have been forlornly lobbying
ever since to have the test withdrawn.

Unfair Dismissal

This now becomes the principle point of difference between the alternative Governments. The Labor Party will restrict the jurisdiction only by ballooning the probation period out to twelve months for small business. The Coalition attitude remains. In workplaces which have fewer than 100 employees, employees will have no entitlement to make unfair dismissal claims. Where workplaces have more than 100 employees, they are only exempt from unfair dismissal if they can demonstrate that the dismissal was for a reason including operational reasons. Both maintain the same stance on Unlawful termination (see below). But, details on Agreement Making Under the Liberals:
Minimum Conditions Under Workchoices, employees are entitled to various statutory conditions. This is the Australian Fair Pay and Conditions (AFPC) standard in addition to other nominated ‘protected’ award conditions.

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.