The Work Choices Bill The Practical Implications

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The Work Choices BillThe Practical Implications
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Key Policy Principles

• Less emphasis on external industrial instruments
• Less reliance on third-party representation
• Greater emphasis on workplace and individual
  bargaining
• Promotion of flexible working arrangements
• Greater choice for employers

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Unfair Dismissal

• Employers of up to and including 100 employees
  will be exempt from unfair dismissal laws.
• An employee includes part time employees and
  casual employees engaged on a regular and
  systematic basis for a period or a sequence of
  periods for at least 12 months.
• For businesses with more than 100 employees there
  is now a standard 6 month probationary period.
  Unfair dismissal claims can not be taken for
  termination of employment during this period.
• No jurisdiction to hear claims of termination
  based on operational reasons.
• How will the Commission interpret termination of
  an assignment by a client?

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Unfair Dismissal

• Employees of corporations, or Victorian, NT or
  ACT employers will no longer have access to the
  following jurisdictions
• State unfair dismissal
• State unlawful termination
• State unfair contracts
• Federal unlawful termination if claimed in state
  EEO jurisdiction

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Unlawful Termination

• Protection against unlawful termination will
  remain
• temporary absence from work because of illness or
  injury
• trade union membership
• discriminatory status
• The Federal government will provide 4000 worth
  of legal advice to eligible employees who believe
  they have been unlawfully terminated.
• Unfair termination law applies to all
  constitutional corporations as well as employees
  in Victoria, NT and the ACT.

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Agreement Making

• Australian Workplace Agreements will be available
  to be negotiated between employers and individual
  employees.
• Collective agreements will no longer be certified
  the Australian Industrial Relations Commission
  (AIRC), but will be lodged by with the Office of
  the Employment Advocate (OEA).
• There will be five types of collective agreement
• Employee Collective Agreement
• Union Collective Agreement
• Union Greenfields Agreement
• Employer Greenfields Agreement
• Multiple Business Agreement

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Agreement Making

• Greenfields agreements can only be of 12 months
  duration.
• Multi-employer agreements must be first
  authorised by the OEA.
• Employer Greenfields agreements do not require
  union agreement.
• The no disadvantage test has been abolished.

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Agreement Making

• Mandatory content includes
• A nominal expiry date
• Dispute settling procedures
• Must meet the Australian Fair Pay and Conditions
  Standard (AFPCS)
• Minimum award rate of pay (including casual
  loading)
• Maximum of 38 ordinary hours
• 4 weeks annual leave
• 10 days personal leave
• Parental leave

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Agreement Making

• Prohibited Content
• Matters not pertaining to the employment
  relationship
• Restrictions on offering AWA
• Restrictions on use of independent contractors
  and labour hire
• Trade union training leave
• Paid union meetings
• Union bargaining fees
• Unfair dismissal remedies
• Industrial action during life of agreement

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Agreement Making

• Protected Content
• (unless specifically written out of agreements)
• Public holidays
• Meal breaks
• Rest pauses
• Incentives
• Leave loading
• Penalty rates
• Shift loadings
• Overtime penalties

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Agreement Making

• An employee may appoint a bargaining agent to
  assist them in negotiating an individual or
  collective agreement.
• A union must have a member and must have the
  capacity to represent eligible employees in
  order to be a recognised bargaining agent.
• An employee must have a copy (or access to a
  copy) of an agreement and an information
  statement for at least 7 days before voting
  (collective) or agreeing (AWA).
• An employee (AWA) or collective of employees
  (collective agreement) may agree to waive the 7
  day requirement outlined above.

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Agreement Making

• In order for a vote for a collective agreement to
  be successful a majority of employees casting a
  valid vote must vote in favour of the agreement.
• Agreements (other than greenfields) must be
  lodged within 14 days of approval by employees.
• Agreements become operative from the date of
  lodgment rather than the date of certification by
  the AIRC or approval by the OEA.

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Agreement Making

• Australian Workplace Agreements will continue to
  be approved by the OEA.
• Both forms of agreement can operate for up to 5
  years (as opposed to the current 3 years).
• Upon expiry of the agreements the employer may
  choose to terminate an AWA or collective
  agreement with 90 days notice and then the
  employee will default back to the relevant award
  or Fair Pay Standard plus protected award
  entitlements.

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Bargaining

• No protected action unless approved by a secret
  ballot.
• No protected if it is in pursuit of prohibited
  content.
• Protected action not available before the nominal
  expiry date of an EBA.
• New grounds for suspending or terminating
  bargaining periods.
• Applications to the AIRC to stop or prevent
  unprotected industrial action must be heard
  within 48 hours or an interim order issued.
• Applications for tort for damages resulting in
  unprotected industrial action may now go direct
  to court and will not involve the AIRC.
• AIRCs dispute settlement role (conciliation,
  mediation and issuing of determinations), apart
  from its powers to suspend or terminate
  bargaining periods or issue orders for the
  suspension or prevention of industrial action,
  will only be available where all parties to the
  dispute agree.

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Transmission

• If no employees move across to a new purchaser of
  a business there is no transmission
• If employees move across to new purchaser of a
  business the applicable award and agreement will
  apply for 12 months only.
• AIRC may become involved as to whether there is
  transmission.

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Potential Obstacles

• A looming High Court challenge by the States
• State industrial tribunals may continue to have
  overlapping jurisdiction
• The reforms are far-reaching and complex and
  prone to drafting errors and contrary
  interpretations by the Courts
• Industrial disputes may increase temporarily due
  to protests against the reforms and
  experimentation with new industrial tactics

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Timelines for the process

• Possible proclamation late February / Early March
• Senator Barnett to discuss

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Implications for RCSA members

• Period of uncertainty while proposed reforms are
  caught up in a political process and High Court
  challenge.
• Potential for industrial disruption as part of
  union protests against the new laws.
• State Governments likely to respond with measures
  designed to protect elements of their policy
  framework.
• Businesses will need to be informed about the
  impact of the changes as things become clearer.

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Policy Considerations

• Communication with clients will remain vital to
  ensure consistency of approach
• Employees are our assets and respect is vital
• Recognise the importance of covering essential
  terms in agreements over and above the 5 standard
  terms
• Sustainability through respect for individuals
  and their life beyond work

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Further Information

• www.workchoices.gov.au