WorkChoices: some developments from the coalface

Analysis

WorkChoices: some developments from the coalface

Some comments on how employers and employees are adapting to specific aspects of the WorkChoices legislation - and what the possible consequences of their actions might be - were provided at a seminar conducted by the Australian Human Resources Institute (AHRI) in Sydney on 21 June 2006.

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Some comments on how employers and employees are adapting to specific aspects of the WorkChoices legislation - and what the possible consequences of their actions might be - were provided at a seminar conducted by the Australian Human Resources Institute (AHRI) in Sydney on 21 June 2006.

Ken Brotherson, Partner at Blake Dawson Waldron, Solicitors, provided an overview of the changes implemented by WorkChoices, and made the following observations about the practical implementations of some of its features.

Regulation of agreements is 'like OHS legislation'

Brotherson noted that the onus of making sure AWAs and collective agreements are compliant with the legislation - and the consequences of not doing so - now rests with employers. He stated that this situation is similar to OHS legislation, in that the legislation tells you what to do to comply, but no-one checks that you have actually done so at the time of making and lodging the agreement. However, if the matter were to be investigated later on (eg by the Office of Workplace Services) and a breach of requirements found, sanctions against the employer could apply.

OEA role

This situation has come about because of a change in the role of the Office of the Employment Advocate, with whom agreements are lodged. For example, agreements no longer have to meet a 'no disadvantage' test when compared to a relevant award, and they are taken to have commenced as at the time they are lodged.

Note that this situation could apply to both the content of agreements and the process of making them (as distinct from the 'paperwork', which will be checked). The Office of Workplace Services might investigate an agreement, or the process of making it, if someone complained about it, as has happened in some widely reported cases already.

However, the Employment Advocate can offer the service of reviewing the content of a proposed agreement before it is made and lodged, if a party to the agreement requests it to do so. As to whether a review can occur within a time frame that suits the parties, it will be necessary to contact the Office for further advice.

Once you depart from the award, there's no going back

Brotherson noted that once employers and employees regulate employment via workplace agreements, they can never return to regulation by an award later on. Once an agreement expires, it can be replaced by a new agreement, or else only the minimum requirements of the Australian Fair Pay and Conditions Standard must be complied with.

Because AWAs take precedence over all other employment arrangements, the above process can also happen gradually if the employer experiences staff turnover or recruits new employees.

While existing employees remain under award or collective agreement coverage, the employer can place new employees under AWAs. Apparently, as each AWA has a different expiry date, it would be extremely difficult if not impossible to revert to awards, or for collective arrangements to be renegotiated, later on.

Looking for ways around 'prohibited content'

Commentators have referred to many of the 'prohibited content' (from agreements) as 'anti-union' provisions. Some unions are apparently seeking to preserve some of the provisions by negotiating with employers to establish a 'deed' or 'memorandum of understanding' with the employer. The most common example appears to be preservation of payroll deduction of employees' union membership fees. According to Brotherson, a few employers have agreed to such arrangements, although most have declined.

The problem with such an agreement is that it cannot be registered in any way. This means that having it enforced in the event of a dispute will be very difficult, with common law action appearing to be the only means, and that avenue is unclear.

NSW Commission and ADR action

The New South Parliament has amended the NSW Industrial Relations Act 1996 to insert a new section 146A - Commission may exercise certain functions conferred on it by agreement.

Section146A however provides:

  1. no specific indication that it covers federal disputes, eg the reference to an 'industrial matter' is presumably the NSW definition of one; and
  2. scope includes arbitration of dispute by NSWIRC - whereas the federal ADR provision is to resolve matters without arbitration.

Will the amendments enable parties to a dispute under the federal legislation to confer status on the NSW Industrial Relations Commission as an ADR provider? If possible, this would appear to be provide an alternative to the federal Department of Employment and Workplace Relations register of ADR providers.

Further information

Further information about this seminar is available from the AHRI website.

Related

Prohibited content v non-allowable award matters

New workplace agreements under WorkChoices

  

 

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