Workplace relations act amendments

Analysis

Workplace relations act amendments

This HR Link is the second part of a detailed summary of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999.

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This HR Link is the second part of a detailed summary of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999. The first part was in HR Link 199. The Bill is currently before a Senate Committee.

Two areas of the Act'soperation the Bill seeks to reform are unfair dismissals and the making and processing of agreements and union rights in this process. These issues are summarised here.

 

Termination of employment

The amendments insert disincentives for speculative unfair dismissal applications and seek to reduce the burden of claims on employers. In particular, late applications will only be granted if the Commission finds that doing so is 'equitable'. This can only happen if the Commission finds that:

  • the circumstances of the delay are 'exceptional';
  • there is an 'acceptable' explanation of the delay;
  • the applicant took action to contest the termination within 21 days; and
  • there is no prejudice to the employer in granting the late applications.

The Bill expands the costs jurisdiction so that costs will be available against an applicant who makes an application or commences a proceeding where:

  • it should have been apparent that the application did not have a reasonable prospect of success;
  • the applicant acted unreasonably in failing to discontinue or agree to a settlement; or
  • the applicant caused costs by an unreasonable act or omission.

Where conciliation fails, the Commission must indicate the likely success of the application on the basis of what was before it in conciliation.

 

Certified agreements

The Bill simplifies the certification requirements and reduces the capacity of third parties to intervene. The amendments enable certification of an agreement by the Registrar without a hearing. Application for certification must be by a direct party to the agreement who can apply to have the agreement referred to the Commission. The Registrar may also refer an application to the Commission: in some instances of non-compliance; if requested by another party; or if one or more unions have not validly executed the certified agreement.

Compliance with the agreement making provisions in the Act will be easier. For example, prerequisites such as nominal terms and dispute settlement procedures will now be inferred into agreements if they are not already in the agreement. Other changes include:

  • employees must be given a copy of the agreement at least 14 days before approving it;
  • the Commission has discretion to certify an agreement where terms are varied after it has been circulated to employees;
  • employees commencing after the agreement is circulated must be given a copy and have the agreement explained but can approve the agreement on the same day as existing employees.

Other amendments to note include:

  • where the agreement is made with one or more unions and approved by employees it is deemed to be a certified agreement with employees and properly approved if the union(s) then do not sign off on it;
  • anti-AWA clauses are prohibited and may be removed from existing agreements;
  • the Commission can order that a successor is not bound by an agreement applying at a workplace; and
  • representation during agreement proceedings by an organisation which is not a direct party is by member request only.
AWAs

The Bill aims to simplify the process of making and approving AWAs. The Bill requires the Employment Advocate to prepare an information statement and an employee must be given a copy before making an AWA. The AWA must be signed and dated by the employer and the employee. There is a five day 'cooling off' period for a new employee and a 14 day period for an existing employee (unless the employee earns more than $68,000 pa). If an employee withdraws consent for an AWA during the cooling off period the AWA is taken not to have commenced.

The Bill repeals 'AWA protected action', that is, the capacity for an employer or employee to undertake protected industrial action during negotiations for an AWA.

Generally, an AWA must satisfy the 'no-disadvantage test' unless it applies to an employee who receives more than $68,000 remuneration per year. In this situation, the 'no disadvantage' test is deemed to be passed unless explicitly requested by a party to apply it.

Under the Bill it is not necessary to offer 'comparable employees' the same AWA. Further, an AWA applies to a successor employer unless the Employment Advocate makes an order that it does not.

The Bill gives the Employment Advocate the power to designate an award for the 'no disadvantage' test if the employee is award free.

 

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