Coalition ‘tweaks’ could bring back WorkChoices: ACTU


Coalition ‘tweaks’ could bring back WorkChoices: ACTU

A Coalition Government could make ‘enormous’ changes to the Fair Work legislation just through the regulations, including unfair dismissal provisions and pay and conditions, the ACTU has claimed.


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A Coalition Government could make ‘enormous’ changes to the Fair Work legislation just through the regulations, including unfair dismissal provisions and pay and conditions, the ACTU has claimed.
It says that at least 198 regulations could be changed to disadvantage workers.
Yesterday, Opposition Leader Tony Abbott said that while WorkChoices was ‘dead, buried and cremated’ he could not ‘give an absolute guarantee about every single aspect of workplace relations legislation’.
Can’t say ‘no change ever’
‘Obviously I can't say that there will never, ever, ever for 100 or 1,000 years time be any change to any aspect of industrial legislation,’ he said.
Opposition IR spokesman Eric Abetz said the FW regulations might be ‘tweaked’.
‘It would be very brave to say you would never have to tweak a regulation or make a ministerial direction,’ he said.
ACTU president Ged Kearney said the worst of WorkChoices could return to Australian workplaces through changes to regulations and ‘tweaks’ that do not require legislative amendment.
She said two million workers could lose protection from unfair dismissal through changes to the Small Business Fair Dismissal Code.
Individual contracts
‘Other changes to regulations could effectively reintroduce individual contracts for millions of workers,’ Kearney said.
‘This would mean cuts to workers’ take home pay and basic award conditions such as overtime pay, penalty rates, public holiday pay, allowances and leave loading — the same as occurred under WorkChoices.’
‘The truth is there is enormous scope for the Coalition to alter the operation of the Fair Work Act simply by regulation. Abbott has left a back door open for the return of WorkChoices.’
Kearney said a preliminary analysis by the ACTU shows there are at least 198 separate sections in the Fair Work Act and the three related Acts that enable the Minister to enact changes by regulation.
Tried it before
‘The Liberals have tried this sort of action before,’ she said.
‘The Howard Government, prior to having a Senate majority, attempted to change regulations so as to strip unfair dismissal rights from a large number of Australian employees, only to be frustrated by the then Senate.’
‘WorkChoices is what the Liberals believe in, so why would working people think they would do otherwise if they are elected?,’ Kearney added.
Potential changes to regulations
[View the current legislation:
The following are some of the potential changes to regulations by the Coalition identified by the ACTU:
  • Modify the Small Business Fair Dismissal Code provided for by s388 of the Act, so as to reduce or remove the unfair dismissal protections for up to two million employees of small business.
  • Make regulations under ss127 or 129 of the Act to permit Modern Awards or Enterprise Agreements to include terms that are contrary to the National Employment Standards allowing reductions in minimum conditions.
  • Make regulations under ss22(2)(c) or 22(4)(a)(ii) to exclude periods of employment from counting towards an employee’s period of service (eg for purpose of calculating redundancy pay).
  • Make regulations under ss127 or 129 of the Act to prohibit terms that may remove workers’ job conditions being included in Modern Awards or Enterprise Agreements.
  • Amend or repeal reg 1.04 of the Fair Work Regulations 2009 (‘the Regulations’) to restrict the definition of ‘designated outworker terms’ for the purposes of s12 of the Act.
  • Amend the definitions contained in reg 1.07 of the regulations, to allow employers to avoid the obligation to pay Notice or Redundancy pay.
  • Make any further regulations for the purposes of s178(3) of the Act to introduce further restrictions or controls on the qualification or appointment of Bargaining Representatives for agreement negotiations.
  • Modify the Model Flexibility Term prescribed in the regulations pursuant to s202(5) of the Act to increase the number of conditions of employment susceptible to individual negotiation.
  • Modify the Notice of Representational Rights prescribed by the regulations, or the means by it may be given to employees under reg 2.04.
  • Modify or repeal reg 2.13 of the regulations, which sets out the High Income Threshold for the purposes of s333 of the Act, to reduce award coverage or unfair dismissal protection.
  • Make any regulation or other law as referred to in s342(c) of the Act to reduce the scope of actions which constitute ‘Adverse Action’ for the purposes of the General Protections provisions.
  • Modify or repeal reg 3.01 or 6.04 of the regulations to reduce unlawful dismissal protections for workers who are suffering from an illness or an injury.
  • Modify the regulations to increase the application fees payable by workers or their representatives making applications to Fair Work Australia in relation to Unfair Dismissal or contravention of the General Protections.
  • Make regulations under s437(6) of the Act to create more onerous requirements on the making of an application for a protected action ballot.
  • Modify regulations made under Div 9 of Pt 3-3 of the Act dealing with payment for protected industrial action constituted by partial work bans.
  • Modify or make any further regulations under ss492(4), 494(3) or 521 or concerning the rights of employees to have access to representation at work or advice in relation to Health and Safety laws.
  • Make regulations under s534(1)(h) of the Act to provide exemptions in relation to the requirement to notify Centrelink of and consult with Unions regarding redundancies.
  • Modify or repeal any regulations made under Div 3 of Pt 3-6 of the Act regarding the content of Employee Records and Payslips.
  • Modify the Model Dispute Settlement term provided by the regulations for the purposes of s737 of the Act.
  • Make regulations under s28 of the Act to exclude the operation of any further state and territory laws that protect workers rights in certain states.
  • Make or modify regulations under ss31–34 of the Act that would exclude the Act from applying to particular categories of workers and giving them rights and protections.


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