National v State System

Introduced WorkChoices to attempt to achieve its goal of a national system

Uniform national system requiring the States to either refer their powers or introduce mirror or complimentary legislation

Minimum Conditions

Under WorkChoices statutory minimum conditions apply (AFOC + nominated "protected" award conditions).

AFPC includes:

• 10 days personal leave, plus 2 days paid compassionate leave and a further 2 unpaid personal leave days for emergencies;
• 4 weeks annual leave (plus an additional week for shift workers);
• 12 months unpaid parental leave;
• a 38-hour week, with reasonable additional hours; and
• the Federal minimum wage.

“Protected" award conditions are:

• penalty rates;
• shift and overtime loadings;
• monetary allowances;
• annual leave loading;
• public holidays;
• rest breaks; an
• dincentive-based payments
  
   

Forward with Fairness policy guarantees 10 statutory minimum conditions, with a further 10 conditions enshrined in awards

The statutory minimums are:

• a 38-hour week (with reasonable additional hours);
• parental leave, which parents can take separately as 12 months unpaid leave, or with one parent requesting an additional 12 months, to total 24 months either way;
• a right for parents to request flexible work arrangements until their child reaches school age;
• 4 weeks annual leave (plus an additional week for shift workers);
• 10 days personal and carer's leave, plus 2 days paid compassionate leave and an additional 2 days of unpaid personal leave for emergencies;
• public holidays;
• a Fair Work Information Statement containing details of employees' rights and entitlements;
• notice of termination and, for workplaces with 15 or more employees, redundancy pay; and
• long service leave

Awards

Awards less relevant.

Reducing allowable matters, including:

• removing union picnic days;
•  trade union training leave; and
• restrictions on engaging independent contractors and labour hire workers
  

Simplifying and reducing the number of awards.

Simplified awards will contain a further 10 minimum employment standards. These include:

• minimum wages;
• the type of work performed;
• arrangements for when work is performed;
• overtime rates;
• penalty rates;
• minimum annualised wage or salary arrangements;
• allowances including reimbursement of expenses and disability based payments;
• leave and leave loadings;
• superannuation; and
• dispute settling procedures

Minimum Wages

AFPC's determinations are based on submissions and consultation.

AFPC determines the timing, scope and frequency of wage reviews.

Submissions from all Australians will be invited and encouraged.

Fair Work Australia's determination will have to be fair to Australian working families, promote employment growth, productivity, low inflation and downward pressure on interest rates.

Work/Life Balance

Work Choices has given employees greater flexibility to balance work/life issues.

Initiatives to be introduced to allow employees, with the agreement of their employer, to take double their annual leave at half pay.

Initiatives to be introduced to enable both parents to take up to 52 weeks unpaid parental simultaneously after the birth of a child.

Initiatives to be introduced to give all working grandparents 1 week's unpaid leave after a grandchild is born.

Initiatives to be introduced to provide 52 weeks unpaid leave for grandparents working in businesses with more than 100 employees after the birth of a grandchild.

Work/life provisions in minimum conditions and awards.

Promised $12 million to encourage small businesses - via grants of between $5,000 and $15,000 - to pursue practices that help employees balance their family obligations.

AWAs

Promotes AWAs over all other forms of agreement-making.

Introduction of the fairness test significantly reinstated protection for employees who earn less than $75,000.

 
 

 

Eventually abolish AWAs.

Will allow existing deals (including pre-fairness test agreements) to run their full terms, and allow businesses currently using AWAs to introduce new ones (Individual Transitional Employment Agreements) for a 2 year period, expiring December 31, 2009.

Provide for individual employment arrangements - such as on rostering, and start and finish times - via flexibility clauses to be included in each award and agreement.

Collective Bargaining

An employer can refuse to bargain for a collective deal even if the overwhelming majority of employees want one.

Employers choose what agreement operates at their workplaces.

No obligation to bargain in good faith.

 

If an employer refuses to bargain for a collective deal, Fair Work Australia will determine the level of support for it among the workforce, and if a majority of employees want to bargain collectively, the employer will be required to do so in good faith.

Obligation on all parties to bargain in good faith, with Fair Work Australia to assist them to do so, and to have the power to make orders when they are not.

Pattern Bargaining

Pattern bargaining prohibited

Will allow multi-employer collective bargaining for low paid employees or those who have not historically had access to collective bargaining, such as employees in the community services sector, cleaning and child care industries.

Other Agreement Types

Employer greenfields agreements.

Union greenfields agreements.

Abolish employer reenfields agreements.

Allow non-union collective bargaining, with no union input at all if that is what employees want.

No-Disadvantage Test

Fair Work Australia will assess an agreement against the relevant award before it approves a deal, with employees having to be better off overall against the safety net.

Fair Work Australia to approve deals "on the papers" and within 7 days.

Prohibited Content

Prohibited content under Work Choices, includes those that:

• prohibit AWAs;
• restrict the use of independent contractors or labour-hire arrangements;
• allow for industrial action during the term of an agreement;
• provide for trade union training leave, bargaining fees to unions or paid union meetings;
• provide that any future agreement must be a union collective agreement;
• mandate union involvement in dispute resolution; and
• provide a remedy for unfair dismissal

Compulsory Bargaining Agents’ Fees

Life of Agreements

Industrial Action

WorkChoices introduced the outlawing of industrial action during the term of an agreement; requiring secret ballots before industrial action; and requiring that workers are docked for a minimum of 4 hours if they take industrial action.

Employers can lock employees out in a dispute.

Employers no longer have to wait for a s166A certificate for access to common law remedies for unprotected action.

 

Retaining key provisions of WorkChoices, including the outlawing all industrial action other than protected action; the requirement for secret ballots (which Fair Work Australia will conduct) before protected action; the ban on protected industrial action during the life of an agreement; the ban on strike pay; and employers' entitlement to lock out employees.

Parties affected by unlawful industrial action will be able to go straight to court to seek orders - including interim orders - without the need for an equivalent to a s166A certificate.

Suspending or termination the bargaining period, compulsory arbitration

AIRC can still suspend or terminate a bargaining period for a raft of reasons, including if pattern bargaining is taking place; if people's health and safety or the economy are threatened, and if third parties are threatened with significant harm.

AIRC can order a cooling-off suspension where this would assist the parties to resolve the matters at issue.

Right of Entry

Unions have no right of entry for discussion/ recruitments purposes at AWA workplaces or those covered by collective non-union agreements.

To investigate a breach at any workplace, officials have to give 24 hours notice.

Unions can only access the records of union members when investigating a breach, unless they have an AIRC order to investigate a non-member, and they have to comply with employers' requests on where they can meet with the workers.

Secondary Boycotts

Freedom of Association

Watered down the provision unions relied on in the waterfront dispute - that sacked workers were being injured in their employment because of their entitlement to an industrial instrument.

Now has to be the sole or dominant reason for dismissal.

Transmission of Business

Agreements and awards transmitted to a new employer survive only 12 months.

Employees' redundancy entitlements last 2 years after a transmission of business, though they could still be lost if employees signed a new agreement as redundancy pay is not a "protected" award condition.

Termination of Agreements

Current rules apply to terminating AWAs.

No mention of the rules that apply to terminating collective agreements.

Dispute Resolution

Unfair Dismissal

Employees at workplaces with fewer than 100 workers have no entitlement to make unfair dismissal claims.

Employers whose workplaces employ more than 100 employees are also exempt from unfair dismissal claims if they can show the dismissal was for a reason including operational reasons.

Reinstate unfair dismissal protection for all employees, with a remedy based on a "fair go all round".

Particular measures for small business.

Employees at workplaces with fewer than 15 workers can claim unfair dismissal if employed for at least 12 months.

Employees at workplaces with greater than 15 workers can claim unfair dismissal if employed for at least 6 months.

Employees cannot bring a claim within the first 6 months of their employment.

Unlawful Termination

Termination for discriminatory reasons, including union membership, sex, race and pregnancy, and refusing to sign or vary an AWA is unlawful.

Claims heard in the Federal Court or Federal Magistrates' Court.

Paid Maternity Leave

Introduced its baby bonus.

Does not support a paid maternity leave scheme.

Institutions

AIRC retained for unfair dismissal, bargaining, and dispute resolution purposes.

Established the Fair Pay Commission, Workplace Authority, the Workplace Ombudsman and the ABCC.

 

Fair Work Australia will have an independent judicial division and its inspectorate will have specialist divisions that can focus on persistent or pervasive unlawful behaviour.

Building and Construction

Retain industry specific construction legislation.

Retain the ABCC, which has far-reaching investigative powers.

Retain the building code of conduct and guidelines.

Retain the BCII legislation.

Retain the ABCC until 2010, thereafter transfer to a specialist division of Fair Work Australia.

Independent Contractors

Independent contractors out of federal industrial regulation.

Independent contractors are defined via the common law.