Prohibited content v non-allowable award matters

Analysis

Prohibited content v non-allowable award matters

The difference between prohibited content and non-allowable award matters under WorkChoices can be confusing.

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The difference between prohibited content and non-allowable award matters under WorkChoices can be confusing. The difference is explained and the continued application of certain provisions that are excluded by WorkChoices is considered here.

With the introduction of the new workplace relations system now in force under WorkChoices some employers have raised concerns about the possibility of inadvertently breaching the new legislation. As with any new law, compliance can be difficult where the wording is either ambiguous or the new terms and expressions are unfamiliar and subject to interpretation. This is certainly the case in relation to some of the provisions introduced under WorkChoices. Uncertainty regarding new areas of the legislation will continue until challenged before the relevant court or tribunal.

This article attempts to identify where compliance may be an issue and where current arrangements, frowned upon by WorkChoices, may continue to apply in the workplace.

Overview

It is important for employers to understand that restrictions on the observance of employment conditions under WorkChoices apply to new workplace agreements and, to a lesser extent, pre-reform federal awards.

Pre-reform instruments

For example, 'prohibited content' only applies to new workplace agreements whilst provisions referring to 'non-allowable award matters' only apply to pre-reform federal awards. Neither of these matters apply to notional agreements preserving state awards (previously state awards), preserved state agreements, or pre-reform AWAs (with the exception of a provision that restricts the negotiation of an AWA).

Terminology

Some employers may be confused by the difference in the meaning of the terms 'non-allowable award matters' and 'prohibited content'. Employers may think that to continue to observe 'non-allowable award matters' in their workplace is 'prohibited' and may be in breach of the Workplace Relations (WR) Act. For example, WorkChoices renders certain provisions prescribed in pre-reform federal awards as 'non-allowable award matters' and, consequently, unenforceable.

Non-allowable - unenforceable

Whilst there is no longer any legal compulsion for the employer to continue to provide these conditions for those employees covered under a pre-reform federal award, their continued observance by the employer does not appear to breach the legislation. However, there may be some exceptions to this. For example, a union picnic day may only apply to a 'financial member of the union'. Such a provision could be construed as a breach of freedom of association and, therefore, expose the employer to possible breach of the WR Act. This difference is important as many employers whose employees are covered under a pre-reform federal award may wish to continue to provide existing award conditions in the interests of industrial harmony. .

Non-allowable award matters unenforceable

Under WorkChoices, a number of existing provisions in pre-reform federal awards no longer apply. Under a pre-reform federal award, the following matters are regarded as a non-allowable award matters and, therefore, unenforceable:

  • conversion from casual employment to another type of employment;
  • the number or proportion of employees that an employer may employ in a particular type of employment;
  • prohibitions on an employer employing employees in a particular type of employment;
  • maximum or minimum hours of work for regular part-time employees;
  • restrictions on the range or duration of training arrangements;
  • restrictions on the engagement of independent contractors;
  • restrictions on the engagement of labour hire workers;
  • union picnic days;
  • tallies in the meat industry;
  • dispute resolution training leave;
  • trade union training leave.

It seems the employer could continue to observe these provisions contained in an award without penalty, however, an employer is in breach of the Act if the parties attempt to have 'prohibited content' matters included in a new workplace agreement.

Prohibited content and new agreements

The WR Act provides for penalties where an employer lodges a new workplace agreement under WorkChoices with the Office of the Employment Advocate (OEA) and the agreement contains prohibited content and the employer was reckless as to whether the agreement contained prohibited content.

Prohibited content includes:

  • deductions of union dues;
  • trade union training leave;
  • paid leave to attend union meetings;
  • provision bestowing an automatic right to represent either party to an agreement;
  • restrictions on the engagement of independent contractors;
  • restrictions on the engagement of labour hire workers;
  • the forgoing of annual leave other than prescribed by the Act
  • the provision of information about employees to a trade union;
  • provision which encourages or discourages another person from joining or remaining a member of an industrial association;
  • a provision that permits a person to engage in or organise industrial action;
  • a provision that confers a remedy to an unfair dismissal;
  • a prohibition of disclosure of details of the workplace agreement by a person bound by the agreement.

Enforcement of minimum entitlements by OWS

The Office of Workplace Services (OWS) is responsible for the enforcement and compliance under WorkChoices of the following category of employee entitlements:

  • a term of the Australian Fair Pay & Conditions Standard (AFPCS);
  • a term of a pre-reform federal award;
  • a term of a workplace agreement;
  • a term of a pre-reform certified agreement;
  • a term of a pre-reform Australian Workplace Agreement (AWA);
  • a term of a notional agreement preserving state awards;
  • a term of a preserved state agreement;
  • a term of an award or order of the Australian Industrial Relations Commission (AIRC);
  • meal break entitlements;
  • public holiday entitlements; or
  • extended parental leave entitlements.

Penalties

Penalties can also be sought for a breach of:

  • workplace determinations;
  • undertakings about post-termination terms and conditions;
  • record keeping requirements under the Workplace Relations Regulations 2006.
Interpretation of existing instruments

An employer with employees employed under a pre-WorkChoices industrial instrument will continue to be required to comply with the minimum conditions of employment prescribed by them.

Non-compliance

Any non-compliance issues relating to a previous state-based industrial instrument, ie a notional agreement preserving state awards (NAPSA) or a preserved state agreement or preserved individual state agreement, can be heard before the Federal Magistrates Court or the Federal Court of Australia. The Office of Workplace Services is the relevant government prosecuting authority.

Representation

An employee may access other agents to represent them in the relevant court or tribunal with respect to any alleged breach of Workplace Relations Act or its Regulations. This representation could include a union (where the employee is a member), employer association (with respect to an employer), or legal practitioner.

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