Youth wages in awas no longer exempt from discrimination laws

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Youth wages in awas no longer exempt from discrimination laws

Federal Regulations that exempted age-based youth and training wages in Australian Workplace Agreements from discrimination laws have been disallowed.

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Federal Regulations that exempted age-based youth and training wages in Australian Workplace Agreements from discrimination laws have been disallowed.

Background

On June 22, 2000 the Workplace Relations Amendment Regulations 2000 (No. 1), SR 2000 No. 121 of 2000, were gazetted and commenced. The Regulations intended to ensure that the lawful operation of age-based youth wages in Australian Workplace Agreements (AWAs) continued after June 23, 2000.

The amendment regulations related to s170VG(2)of the Workplace Relations Act 1996, which provides that in making, varying or terminating an AWA the employer must ensure that the AWA includes the provisions relating to discrimination that are prescribed by the regulations. Regulation 30ZIof the Workplace Relations Regulationsprescribes that the provisions relating to discrimination are set out in Schedule 8of the Regulations. Prior to the amendment in June, subparagraph (d)(i) of Sch 8 provided that where AWAs were approved prior to June 23, 2000, then the payment of junior rates of pay was NOT prohibited.

The amendment regulations, which commenced on June 22, 2000, had the effect of ensuring that age-based youth and training wages in AWAs were permanently exempt from age discrimination laws. This brought AWAs into line with the provisions of the Workplace Relations Legislation Amendment (Youth Employment) Act 1999, which exempted aged-based youth and training wages in awards and agreements from age discrimination laws.

The disallowance of Regulations

Section 48(4)of the Acts Interpretation Act 1901provides that:

If either House of the Parliament, in pursuance of a motion of which notice has been given within 15 sitting days after any Regulations have been laid before that House, passes a resolution disallowing any of those Regulations, any regulation so disallowed thereupon ceases to have effect.

On August 17, 2000, the federal Labor Party in the Senate with the support of the Democrats voted to disallow the Workplace Relations Amendment Regulations 2000 (No. 1), (No. 121 of 2000).

The support of the ALP in passing last year's junior rate legislation was conditional on the fact that the federal Commission would consider the merits of incorporating age-based youth and training wages in awards and agreements on a case-by-case basis. It is this view and the claim that regulations pertaining to AWAs would bypass this process, that led the ALP to seek the disallowance of the Regulations.

Implications of disallowed Regulations

The implications of the disallowance are twofold. Firstly, the disallowance is not retrospective and therefore, the regulations remained valid for the period June 22, 2000 to August 17, 2000. Section 48(6)of the Acts Interpretation Act 1901provides that where Regulations have been disallowed, they have the same effect as repealed Regulations. In this regard, s50of the Acts Interpretation Act 1901provides that any rights, privileges, obligations or liabilities acquired, accrued or incurred under the repealed regulations are not affected.

The second implication of the disallowance is that after June 23, 2000, AWAs will not be able to incorporate age-based youth and training wages as they will not be exempt from age discrimination laws. This is in contrast to awards and agreements, which pursuant to s88BB(4) of the Workplace Relations Act 1996are exempt from age discrimination laws.

 

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