AIRC must be ‘ruthless’ when modernising awards

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AIRC must be ‘ruthless’ when modernising awards

Award modernisation is ‘complicated, difficult and boring’ and the AIRC will have to be ‘ruthless’ in getting the process completed by the deadline of 31 December 2009, Commission vice president Michael Lawler has told a conference in Sydney.

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Award modernisation is ‘complicated, difficult and boring’ and the AIRC will have to be ‘ruthless’ in getting the process completed by the deadline of 31 December 2009, Commission vice president Michael Lawler has told a conference in Sydney.
 
Lawler was speaking at the 3rd Annual Industrial Relations Forum - organised by Tonkin Corporation in association with the Industrial Relations Society of NSW.
 
He also said that modernising awards so that they did not disadvantage employees nor add to employers’ costs was an ‘impossibility’.
 
Lawler said he understands the Federal Government is proposing a new IR Act ‘from scratch, not amending a monstrosity’ - the current Workplace Relations Act, which runs to 1700 pages.
 
Lawler said the AIRC expects the formal request this week from the Minister regarding award modernisation , and doesn’t expect it to be much different from what was contained in the Explanatory Memorandum.
 
Profound impact
 
However, Lawler said the process would have a potentially profound impact on employers and employees.
 
‘Demarcation will be a big issue,’ he said. ‘Employers don’t want “turf wars” fought out in the workplace.’
 
Prohibitions
 
Lawler said there are prohibitions as to what could be in a modernised award. He said award coverage cannot be extended to managers who were previously award free, but in the public sector awards do cover managerial positions - as high as deputy secretary.
 
Also modernised awards cannot apply to new occupations where the work is similar to that which has traditionally been award free, nor to high income workers. (Labor has set a figure of $100,00 above which awards do not apply.)
 
Impossible
 
He said that the requirement under the interim IR legislation that award modernisation would not disadvantage workers or increase costs to employers is an ‘impossibility’.
 
Under the legislation, modernised awards cannot have State or Territory based differences, except for during the five-year transition period.
 
Lawler said nurses in New South Wales are the highest paid after a 17.5% work value case a couple of years ago.
 
‘They are paid more than other nurses in Australia,’ he said. ‘If there is a nurses award (and not a health award that covers nurses classifications) it will be subject to a single rate.'
 
Some worse off
 
‘You can’t do this without reducing the pay of NSW nurses or increasing that of Vic or WA nurses. So some will be worse off and some better off.’
 
He said in cases like this the AIRC will have to balance the criteria and ‘make a call at the end of the day’.
 
Lawler said that under the modernisation process the initial task of the AIRC president must be to consult with major employer and employee organisations.
 
He then must release a clear program and timetable for the modernisation of awards, and the whole process must be finished by 31 December 2009.
 
Complex process
 
‘Award simplification took five years, and this is a more complex process,’ he said.
 
We are not going to be able to be conducted in the normal fashion. There will have to be some ruthlessness by the AIRC.’
 
Lawler said the timeframe will be ‘exceptionally difficult’ to meet. The traditional process of a report back to employer organisations and unions for further input will ‘go by the way’, he said.
 
Lawler said he had looked at the industry areas he covers and ‘it does one’s head in’.
 
‘Difficult and boring’
 
‘It is complicated, difficult and boring,’ he said. ‘The timetable means we will have to be ruthless.'
 
‘It will be a web page consultation process at first. Every submission will go up on the web page in such a way as people will be easily able to look up what they want.’
 
He said the process does not lend itself to conventional hearings by the AIRC. There will be some hearings, but he was not sure how that will work.
 
Lawler said there could be a Full Bench to look at the overall process and subordinant benches to look at ‘families’ of awards.
 
He said the AIRC would have to go through the list of awards and NAPSAs and isolate the federal enterprise awards, which won’t be touched. All awards in which the Commonwealth is a respondent, including Territories, or to which Victoria's Government is a respondent (it has ceded its IR powers to the Commonwealth) will be treated as enterprise awards.
 
Choose one award
 
The subordinant benches would target ‘families’ of awards and choose one award to be modernised and then fold the others into it.
 
Lawler said that ‘in the best of all possible worlds’ Australia would have about 18 awards, but this is not going to happen.
 
‘Whether it will be 40, 60 or 100 I don’t know,’ he said. ‘Will we have a clerks’ award, or clerk classifications in other award?’
 
He said that if workers in the disability and charitable sector were covered by the same award as other workers then the charities would go broke. He also wondered whether workers in the aged-care sector would be in the nurses award or a separate aged-care award.
 
Lawler said every modernised award will have to have an ‘award flexibility’ clause so that employers and employees can agree on the requirements of individual workplaces; but these cannot disadvantage employees.
 
De facto AWAs
 
He forecast that these flexibility clauses will become ‘de facto AWAs’ subject to a no-disadvantage test.
 
‘They will be pre-WorkChoices AWAs in substance if not in name,’ he said.
 
Lawler said ‘industry specific detail’ can be included in awards, such as the fact that nurses get six weeks annual leave, however long-service leave, right of entry, and union preference cannot be addressed in the new awards.
 
He said once a modernised award is made, it can’t be appealed or challenged except to go to the High Court. ‘Interested parties’ may use this process to delay the making of a modernised award, he said.
 
No right of appeal
 
In answer to questions, Lawler said that while there was no right of appeal over a modernised award, they could be varied ‘from time to time’.
 
He said that if employers or employee groups had concerns or questions over a particular areas they should ‘pick up the phone and ring the Panel head. Individual commissioners would be responsible for individual industry, but under the supervision of subordinate panels.
 
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