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ever since to have the test withdrawn.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.