Common terms & expressions under WorkChoices

Analysis

Common terms & expressions under WorkChoices

The WorkChoices legislation has introduced many new terms and expressions and, in many cases, these terms and expressions are describing an instrument that already exists.

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The WorkChoices legislation has introduced many new terms and expressions and, in many cases, these terms and expressions are describing an instrument that already exists. There are also descriptions of new institutions which may need clarification. The following is a glossary of the terms and expressions commonly used in WorkChoices which, hopefully, will provide some familiarity to the reader when they appear in future articles.

Allowable award matters: Under WorkChoices an award may include terms about the following matters only: ordinary time hours of work, rest breaks, notice periods and variations to working hours; incentive-based payments and bonuses; annual leave loadings; ceremonial leave; leave for the purpose of seeking other employment; observance of public holidays; monetary allowances for expenses incurred, or responsibilities or skills, or disabilities associated with the work; loadings for working overtime or shift work; penalty rates; redundancy pay (15 employees or more); stand-down provisions; type of employment, eg. full-time, part-time, casual, shift work; conditions for outworkers.

Award Review Taskforce (ART): The ART will examine and report to Government on two projects relevant to the WorkChoices legislation. Firstly, it will examine classification wage structures in all current federal awards and state awards that are moved to the federal jurisdiction with a view to rationalising their structure. Secondly, it will examine all current federal awards with a view to recommending an approach to rationalising those awards.

Australian Fair Pay Commission (AFPC): This is the new wage setting body established under WorkChoices with the primary objective of setting and adjusting minimum and award classification wages, minimum wages for juniors, trainees/apprentices and employees with disabilities, minimum wages for piece workers and casual loadings. The AFPC will be responsible for future variations to wages under a rationalised classification structure (yet to be determined). The role of varying wage rates under awards was previously the responsibility of the Australian Industrial Relations Commission.

Australian Fair Pay & Conditions Standard (AFP&CS): WorkChoices has introduced a number of minimum conditions of employment: annual leave, personal/carer's leave (including sick leave), parental leave (including maternity, paternity and adoption leave) and maximum ordinary hours of work. Existing awards and new agreements negotiated under WorkChoices are required to provide conditions which meet the new standards.

Bargaining agent: A person appointed by an employee or group of employees to represent them in agreement negotiations. A bargaining agent can be a trade union representative, a friend, a relative, a solicitor, or any other adult person on whose advice an employee can rely.

Basic periodic rate of pay: the rate an employee is paid regarding the annual leave standard under WorkChoices which includes the employee's ordinary base rate of pay does not include incentives, loadings, penalties, or other separately identifiable components.

Collective agreement: Under WorkChoices this means an employee collective agreement; or a union collective agreement; or an employer greenfields agreement; or a union greenfields agreement; or a multiple-business agreement.

Constitutional corporation: WorkChoices only applies to an employer who is a 'constitutional corporation'. This term covers a number of different types of companies. This means:- bodies incorporated under the Corporations law of a State or Territory that may be classified as either a trading or financial corporation; foreign corporations; bodies corporate that are incorporated in a Territory; and bodies that are prescribed as bodies corporate under legislation. Examples of businesses which may not be constitutional corporations include sole traders, partnerships and family trusts.

100 employees re unfair dismissal: An employer who employs 100 employees or less is exempt from the unfair dismissal provisions under WorkChoices. The 100 employee threshold is a headcount and not calculated on a full time equivalent basis. The number of employees would include non-award employees and casual employees. The threshold would also have to take into account the number of employees employed in a group of companies, which would include a holding company or subsidiary company.

Guaranteed period base rate of pay: A statutory rate under WorkChoices which applies to an employee absent on paid personal/carer's leave which means the employee is paid at the rate they would have received had the employee worked, eg. shift penalties, etc.

More generous: The test applied to the annual leave, personal/carer's leave and parental leave provisions contained in a pre-existing federal or state award compared to the requisite standard under WorkChoices. The WorkChoices standard applies where the condition is equal to or more generous than the award condition.

The test as to whether the condition is more generous applies to the quantum of leave, however, an employee cannot be disentitled under a WorkChoices standard. For example, a federal award that provides an annual leave entitlement to casuals will continue to apply to casual employees employed under that award. (The WorkChoices annual leave standard excludes casual employees).

Nominal expiry date: This refers to the nominated date specified in a workplace agreement on which the parties expect the agreement to expire or be re-negotiated. The nominal expiry date for a workplace agreement made under WorkChoices cannot be greater than 5 years from the date of lodgement of the agreement. A workplace agreement continues to operate beyond the nominal expiry date until terminated by either party or re-negotiated by the parties.

Nominal hours worked: Nominal hours worked is relevant to how leave is accrued over a period of continuous service. This expression means the sum of the number of hours the employee worked (excluding additional hours) and the number of hours of paid authorised leave taken by the employee over each four week period of continuous service with the employer. Periods of unpaid leave and unauthorised absences are not captured by the definition.

Non-allowable award matters: Matters that are not allowable under awards under WorkChoices include, but limited to:- conversion from casual employment to another type of employment; proportion of employees that may be employed; prohibitions on employing employees in a particular type of employment; maximum or minimum hours of work for regular part-time employees; restrictions on 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; and trade union training leave.

Non-excluded matters: WorkChoices excludes most State or Territory industrial laws, ie. laws dealing with matters regulating the relationships between employers and employees. There are certain State or Territory industrial laws, however, that are included under WorkChoices. For instance, workers compensation, occupational health and safety, long service leave, jury service leave and industrial action affecting essential services. State or Territory laws covering these matters would continue to apply to constitutionally covered employers and employees.

Notional agreement preserving state awards (NAPSA): WorkChoices has changed the status of state awards to that of an agreement under the federal jurisdiction. A reference to a NAPSA in articles relating to WorkChoices is describing what was previously known as a 'state award'. In moving previous state awards into the federal system WorkChoices regards state awards as 'notional agreements' and are now deemed to be a federal industrial instrument.

Unlawful termination: Different to unfair dismissal, this is where the grounds for termination are based on discriminatory issues such as:- race, colour, religion, sex, marital status, sexual preference, age, physical or mental disability, family responsibilities, pregnancy, political opinion, national extraction or social origin; temporary absence due to illness or injury; trade union membership; non-membership of a trade union; carrying out a voluntary emergency management activity; absence during parental leave; filing a complaint against an employer; refusing to negotiate in connection with, sign, extend, vary or terminate an AWA.

Operational reasons: An area of conjecture with respect to unfair dismissal applications. WorkChoices excludes an application for unfair dismissal on the grounds that the employee's employment was terminated for genuine operational reasons or for reasons that include genuine operational reasons. This is defined as reasons of an economic, technological, structural or similar nature relating to the employer's undertaking, establishment or business. Legal opinion is divided on the scope of the definition and the types of reasons for dismissal caught under this expression. This expression does not apply to applications for unlawful dismissal.

Pre-reform award: This expression is referring to a federal award in existence prior to the commencement of WorkChoices.

Pre-reform certified agreement: This expression is describing an agreement made under the Workplace Relations Act prior to the commencement of WorkChoices.

Preserved award term: For an agreement made under WorkChoices certain award entitlements are preserved unless specifically addressed by the agreement. These preserved award conditions are:- annual leave; personal/carer's leave; parental leave including maternity and adoption leave; long service leave; notice of termination; jury service; and superannuation (until 30 June 2008).

Preserved collective State agreement: This expression is referring to a state registered agreement in existence prior to the commencement of WorkChoices.

Preserved individual State agreement: This expression refers to those types agreements which certain states, such as Queensland, provided for the certification of individual work agreements under the authority of the respective industrial relations tribunal.

Prohibited content: A range of content will be prohibited from being included in agreements under WorkChoices. Such content contained in federal awards and state awards will now be unenforceable and, eventually, be deleted as part of the award rationalisation process. The prohibition of Australian Workplace Agreements (AWAs) is a prohibited content in all instruments, whereas, prohibited content contained in existing federal or state agreements will continue to be enforceable.

Protected action: Action by a person is protected action which may be taken by either the employer or the employee(s) during a designated bargaining period relating to the negotiation of an agreement under WorkChoices. The bargaining period is initiated by the giving of written notice to each negotiating party and to the Australian Industrial Relations Commission stating it intends to try to make a collective agreement.

Qualifying period of employment: An expression used with respect to unfair dismissal applications meaning an employee cannot pursue an unfair dismissal on the grounds that it was unfair, harsh or unreasonable if the employee was not employed for the 'qualifying period of employment'. Under WorkChoices this is: 6 months; or a shorter period, or no period, determined by written agreement prior to the commencement of employment; or a longer period determined by written agreement between the employer and employee before the commencement of employment, being a reasonable period having regard to the nature and circumstances of the employment. Under WorkChoices, the 'qualifying period of employment is a different expression, and with a different meaning, to the 'probationary period'.

 

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