What's unenforceable in pre-reform Federal awards

Analysis

What's unenforceable in pre-reform Federal awards

Under WorkChoices a number of provisions contained in pre-reform Federal awards are no longer enforceable. These provisions in pre-reform awards are no longer enforceable because they are not allowable award matters.

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Under WorkChoices a number of provisions contained in pre-reform Federal awards are no longer enforceable. These provisions in pre-reform awards are no longer enforceable because they are not allowable award matters.

While the legislation is quite specific regarding the provisions that are 'allowable award matters', WorkChoices lists approximately 12 provisions which are specified as 'non-allowable award matters'. This list is not limited to the specific provisions prescribed in the legislation.

However, an employer may wish to continue to provide an 'unenforceable' award provision for the sake of maintaining workplace harmony.

Option to cease providing

An employer would not be in breach of the WorkChoices legislation by continuing to apply a non-allowable award matter, although WorkChoices does give the employer the right to cease to continue to provide the matter as a term of the employee's employment.

NAPSAs and pre-reform agreements not in issue

This article is not relevant to an employer with employees covered under a notional agreement preserving State awards (NAPSA), pre-reform certified agreements, preserved State agreements, pre-reform AWAs, preserved individual State agreements, or new workplace agreements under WorkChoices.

An employer must also be a 'constitutional corporation' to be covered by WorkChoices.

What is a pre-reform Federal award?

An employer who was bound by a Federal award prior to the commencement of WorkChoices will continue to be covered by that award, which is referred under WorkChoices as a 'pre-reform award'. This includes employers in the Northern Territory and the Australian Capital Territory who were covered by a 'common rule' Federal award, which applies to all employers under the scope of the award. These awards are subject to the provisions of the WRAct, including the minimum conditions prescribed by the Standard, unless the pre-reform award is more generous in a matter covered by the Standard.

Non-allowable award matters

WorkChoices prescribes a list of provisions which are considered to be 'non allowable matters'. This list includes the following 'non allowable award matters', although it is not limited to these matters:

  1. automatic right to represent employers or employees
  2. conversion to casual employment
  3. number or proportion of employees employed in a particular type of employment
  4. prohibitions on employing employees in a particular type of employment
  5. maximum or minimum hours of work for part-time employees
  6. restrictions on training arrangements
  7. restrictions on the engagement of independent contractors
  8. restrictions on the engagement of labour-hire workers
  9. union picnic days
  10. tallies in the meat industry
  11. dispute resolution training leave, and
  12. trade union training leave

Unenforceable provisions under pre-reform Federal awards

As the following award matters are not included on the list of 'allowable award matters' prescribed under WorkChoices they are 'non allowable award matters' for the purposes of WorkChoices. Consequently, these provisions no longer need to be observed by the employer.

This list of award provisions is not exhaustive.

The list of award provisions below is not exhaustive.

Accident pay: This normally provides for a 'make-up' payment representing the difference between the amount of workers compensation paid by the insurer (usually the award rate) and the 'actual' rate of pay (applicable over award payment) for an employee absent on workers compensation. The maximum period of payment varies from 26 weeks to 52 weeks, depending on the relevant award. In addition, it usually continues to be payable to an employee even after the cessation of their employment with the employer.

Blood donor leave: This is normally paid leave for the purpose of donating blood at a recognised blood bank, such as the Red Cross. Generally, an employee was entitled to one hour's paid leave on each occasion for that purpose, subject to satisfactory proof being provided by the employee.

Casuals - minimum engagement: A common feature of pre-reform Federal awards is the provision of a minimum payment to casual employees for each start. This may vary from two hours to a minimum payment of one day for each start.

As this is no longer an allowable award matter the employer can waive this provision, however it may be difficult to persuade a casual employee to attend for work if the incentive is not considered by the employee as sufficient to justify attendance.

Company vehicles: Where the pre-reform award only requires the means of transport to be provided by the employer, this will no longer be enforceable. This provision is common in awards covering occupations such as sales representatives or real estate agents, which usually require the employer to provide all means of transport to the employee.

If the means of transport are not provided by the employer a 'locomotion' allowance and/or kilometre charge usually applies when the employee is required to provide their own motor vehicle. This allowance is an allowable award matter for the purposes of WorkChoices (a monetary allowance for expenses incurred in the course of employment) and the employer is obliged to continue to pay such an allowance.

Court appearances: This provision, common in the public sector and education sector, usually deals with the situation of an employee being subpoenaed as a witness in court proceedings. Some provisions differentiate between being subpoenaed as a witness for the Commonwealth or Crown (usually paid attendance) as opposed to subpoenaed as a witness in a private capacity (usually leave without pay).

Defence Force Reserve leave: This entitlement usually provides leave for those employees who are members of the Defence Force General Reserve scheme to undertake a minimum number of days training each financial year. This usually includes one compulsory two week camp. The leave is usually provided on the basis of a 'make-up pay', taken in conjunction with annual leave, or as unpaid leave.

Emergency Services leave: A common provision in industry awards that are exposed to the dangers of natural disasters, eg bushfires, floods, etc, is allowing those employees who are members of a voluntary emergency service organisation, eg State Emergency Service, leave to attend to incidents that have been designated a 'state of emergency'. This type of leave may be paid or unpaid.

There is separate Federal and State legislation which protects a volunteer emergency service employee from dismissal or victimisation by an employer.

Hospital leave: A common in the clothing industry, it usually provided that where an employee suffers an injury at work, which is not related to a workers' compensation claim, and requires attendance at a doctor or hospital during working hours, the employee was normally entitled to up to four hours leave on the day of the accident.

Leave without pay: This is a common provision in public sector awards, which is unpaid leave of absence from employment consented to by the employer. This type of leave is different from an absence due to the employee's personal illness or injury. As it is usually a discretionary form of leave rather than an employee right, the availability of this award provision may, in reality, remain unaffected by WorkChoices.

Meals: A common award entitlement in the hospitality industry prescribes that where the employer provides facilities for the partaking of meals an employee shall be provided with a meal free of cost whilst such employee is engaged on employment duties.

Medical examinations: A common provision in the mining industry that usually allows for free medical examinations to be provided by the employer on an annual basis. In addition, blood and urine samples will be taken every three months for analysis, usually to ensure the absence of toxic minerals in the body, rather than as an alcohol or drug testing facility.

Suspension: Whether this is an allowable matter is subject to some conjecture. A stand-down provision in a pre-reform award is 'allowable' but there is some doubt as to whether 'suspension' falls into this category.

The term 'stand-down' is usually describing a situation where an employee cannot be usefully employed because of circumstances beyond the employer's control, eg strike, breakdown of machinery, power failure, etc, and consequently the employee is stood down without pay. Conversely, the term 'suspension' is usually describing a situation where an employee is stood down from duties to allow an investigation to occur as a result of an alleged misdemeanour or accident at work.

It is usually associated with a disciplinary process rather than the operational reasons which form the basis for 'stand-down'. The difficulty for the employer is enforcing a suspension which is unpaid. There is little likelihood of an employee complaint where suspended on full pay.

Related

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