Fact v fiction and WorkChoices

Analysis

Fact v fiction and WorkChoices

With industrial relations being an important election issue there have been a number of statements made in connection with the WorkChoices legislation that have either been at the very least misleading, or in other instances incorrect, in their interpretation.

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With industrial relations being an important election issue there have been a number of statements made in connection with the WorkChoices legislation that have either been at the very least misleading, or in other instances incorrect, in their interpretation.

In particular, the campaign by unions with respect to television advertisements and media statements may possibly have misled many employers regarding certain aspects of WorkChoices.

This article looks at some of the statements made in the media and attempts to explain the facts surrounding the individual circumstances presented in these public forums and the accuracy of the claims made by the various interested parties.

Australian Workplace Agreements (AWA) — benefits withdrawn?

Recently, the ACTU has authorised television advertisements identifying certain employment conditions which have been withdrawn from AWAs. While there is a capacity within an AWA for an employee to forgo a number of previously provided award entitlements, there are certain employment conditions that cannot be foregone.

Minimum conditions

When considering public statements by interested parties in the industrial relations debate, it should be noted that the following minimum conditions apply to an AWA (or collective agreement) made under WorkChoices:

  • the relevant wage rate under the Australian Pay and Classification Scales (APCS) or Federal Minimum Wage (FMW) (whichever is relevant)
  • a maximum of 38 ordinary hours per week plus reasonable additional hours (with averaging over 12 months by agreement)
  • four weeks annual leave each year for full-time and part-time employees (pro rata), and agreement to cash out certain amounts of leave
  • 10 days personal/carer's leave for full-time and part-time employees (pro rata), including two days compassionate leave
  • two days unpaid carer's leave for all employees (including casual employees)
  • 52 weeks unpaid parental leave for full-time, part-time and long-term casual employees
  • a minimum period of notice of termination of employment by the employer, based on years of continuous service with the employer
  • specified public holidays, and
  • unpaid meal breaks (unless specifically excluded by the agreement)

Award provisions which can be modified or excluded

The following award provisions may be modified or excluded from an AWA:

  • declared public holidays and payments related to work on a public holiday
  • rest breaks (including meal breaks)
  • incentive-based payments and bonuses
  • annual leave loadings
  • monetary allowances
  • penalty rates
  • outworker conditions, and
  • shift and overtime loadings

Public holidays

The ACTU recently claimed that 22.5% of AWAs have axed 'declared public holidays' as a condition of employment. In the case of an AWA made under WorkChoices, an employee cannot forfeit an entitlement to a declared public holiday as this would be in breach of the WorkChoices legislation.

This claim could be the result of an absence of any provision in the AWA regarding public holidays, meaning the declared public holidays in the WorkChoice legislation will automatically apply. The absence of a specific provision regarding public holidays in the AWA does not remove an employee's entitlement to this condition.

Conversely, if the claim is related to pre-WorkChoices AWAs, this may be the case as an employee could have forfeited an entitlement to public holidays, provided the AWA met the (then) 'no disadvantage test'. The Office of Workplace Services website indicates that an employer could be prosecuted for not paying an employee for a public holiday falling on a day where the employee works 'guaranteed hours'.

Public holiday payment

The ACTU also claimed recently that 52% of AWAs registered under the new Act have abolished public holiday pay. This was particularly the case with Anzac Day.

This claim could be misleading in that an employee must receive pay for their 'guaranteed hours' on the day the holiday falls, ie their ordinary day's pay for the day. While public holiday provisions under an award, including payment for the day, are a 'protected allowable award condition', ie can be modified or excluded by a WorkChoices agreement, the practical impact is the penalty rates for working on a public holiday may be modified or excluded by an agreement.

Meal breaks

There are claims that a high percentage of AWAs have had meal breaks removed as an entitlement. As with public holidays, meal breaks are a 'protected allowable award matter' meaning meal breaks may be modified or excluded from an AWA.

However, where the AWA is silent on the provision of meal breaks, the minimum entitlement under the WRAct will apply. The minimum entitlement under WorkChoices is a 30 minute unpaid meal break after five hours work. However, in removing meal breaks from an agreement, an employer should monitor employees to consider the possible occupational health and safety implications, particularly where the nature of the work involves continuous shift work, where ordinary daily hours exceed 10 hours, or work that involves regular rostered overtime.

Work on a public holiday

Conflicting comments in the media regarding the demands by employers to require their employees to work the Anzac Day public holiday have created some confusion for employers. Under WorkChoices, an employer may request an employee to work on a particular public holiday.

The Act also provides that the employee may refuse the request (and take the day off) if the employee has reasonable grounds for doing so. Although the right of an employee to refuse to work a public holiday existed in principle prior to WorkChoices, the WRAct has identified a number of different circumstances to be taken into account in determining the 'reasonableness' of the employee's refusal to work on the holiday.

The issue of 'reasonableness' in this context is untested at this stage before the relevant Federal court. This WorkChoices provision appears to make it more difficult for an employer to direct an employee to work on a public holiday.

Unfair dismissal

The new unfair dismissal laws under WorkChoices have become a particularly contentious issue between unions and the Federal Government and employer bodies.

The new laws restrict the category of employees who have access to a remedy if dismissed. The main changes were an exemption for those employers who employ 100 employees or fewer, which represents the majority of businesses in Australia, and the right of an employer, with more than 100 employees, to dismiss an employee for 'operational reasons'.

Originally, government material summarising WorkChoices suggested this phrase referred to a redundancy, however recent decisions by the Australian Industrial Relations Commission (AIRC) appear to have taken a broader interpretation of the term, meaning an employer's decision to (say) cut costs is considered an operational reason for dismissal, so that other similar reasons could now fall under the broad description of 'operational reason'.

Legally published wage rates

There have been recent media articles questioning the enforceability of wage rates under the Australian Pay and Classification Scales (APCS) consequent to decisions issued by the Australian Fair Pay Commission (AFPC).

The absence of authorised orders detailing the new wage rates was raised by WorkplaceInfo at the time of the AFPC's initial decision. At this stage, it would appear that there are approximately 100 pre-reform Federal awards and NAPSAs whose wage rates under the APCS have been published on the WorkChoices website. This leaves the vast majority of wage rates related to pre-reform Federal awards and NAPSAs unpublished, creating uncertainty for employers.

In addition, there have been issues raised about the legitimacy of the wage rates published. The government agency with the authority to prosecute an employer under a WorkChoices industrial instrument is the Office of Workplace Services (OWS).

Since the introduction of WorkChoices, however, the OWS has successfully prosecuted employers with respect to underpayment of wages, meaning wage rates determined by the Department of Employment and Workplace Services, which appear on the WorkChoices website, are considered to be sufficiently 'authorised' for the relevant Federal court to prosecute an employer. However, the publication of 'orders' detailing the wage rates for each classification under the APCS relating to all pre-reform Federal awards and NAPSAs would be of considerable benefit to employers.

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