Federal Workplace Relations Amendment (Work Choices) Bill 2005 summarised

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Federal Workplace Relations Amendment (Work Choices) Bill 2005 summarised

The Federal Workplace Relations Amendment (Work Choices) Bill 2005 introduced into Parliament today manifests the changes earlier released in non-legislative form by the Government.

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The Federal Workplace Relations Amendment (Work Choices) Bill 2005 introduced into Parliament today manifests the changes earlier released in non-legislative form by the Government. The details of the Bill will require close examination to fully understand the practical implementation of the legislation.

One area that will attract the attention of opponents to the legislation are the provisions effectively taking over the jurisdiction of the States in relation to the industrial relations of constitutional corporations.

Summary

Commencement

The legislation will generally commence on Royal Assent. Note that changes affecting school-based apprentices and trainees will commence on Proclamation.

Federal Minimum Wage

Guarantee of standard Federal Minimum Wage (FMW) is provided. Employees must be paid a basic periodic rate of pay - ie FMW except in relation to junior employees and disabled worker where lower pay regimes are currently in place.

Casual loadings

A guaranteed casual loading percentage is provided as a default casual loading percentage of 20%, subject to the power of the Fair Pay Commission (AFPC) to adjust the percentage to reflect industry conditions etc.

Hours of work

An employee must not be required by an employer to work more than an average of 38 (ordinary) hours per week over the employee’s applicable 'averaging period'.

Annual leave

Guarantee of annual leave of 4 weeks is provided with an entitlement to cash-out annual leave by agreement.

Carer's leave

Up to 2 days unpaid carer’s leave for each occasion is provided in the Bill. This entitlement extends to casual employees.

Maternity leave

Unpaid maternity leave under essentially the same conditions as currently apply is provided in the legislation.

Types of workplace agreements

Australian Workplace Agreements, Employee collective agreements, Union collective agreements, Greenfields agreements, and Multiple-business agreements are provided for in the Bill.

Protected allowable award matters

Protected allowable award matters means the following matters:

  1. rest breaks;
  2. incentive-based payments and bonuses;
  3. annual leave loadings;
  4. observance of days declared by or under a law of a State or Territory to be observed generally within that State or Territory, or a region of that State or Territory, as public
    holidays by employees who work in that State, Territory or region, and entitlements of employees to payment in respect of those days;
  5. monetary allowances for:
    (i) expenses incurred in the course of employment; or
    (ii) responsibilities or skills that are not taken into account
    in rates of pay for employees; or
    (iii) disabilities associated with the performance of particular
    tasks or work in particular conditions or locations;
  6. loadings for working overtime or for shift work;
  7. penalty rates;
  8. outworker conditions;
  9. any other matter specified in the regulations.

Coercion and duress

Provisions against coercion and duress by employers, unions and employees are contained in the Bill.

Preserved award entitlements

Special provisions apply to 'preserved award entitlements' - covering established award conditions such as

  1. annual leave;
  2. personal/carer’s leave;
  3. parental leave, including maternity and adoption leave;
  4. long service leave;
  5. notice of termination;
  6. jury service;
  7. superannuation

Prohibited award clauses

The matters noted in earlier information from the government have been included in the Bill so, for example, provision that AWAs are barred is not an allowable clause.

Review and simplification of awards

The AIRC must review all current awards and determine whether the awards include terms that may not be included in awards and so simplify awards. This will take some time but there would be time pressure on the Commission as current awards are not subject to variation until the review is completed.

Variation of existing awards

The Commission must not make an order varying an award except:

  1. as a result of an award rationalisation process; or
  2. as a result of an award simplification process.

New employer bound by award

Certain modified transmission provisions are included in the Bill - considerably weakening the application or carry-over of awards/existing conditions to new employers.

Unfair dismissal

Apart from excluding employers of fewer than 100 employees from the unfair dismissal laws, the Bill also puts considerable emphasis on justifying dismissal for genuine operational reasons or for reasons that include genuine operational reasons. In such circumstances, an employee could not argue than the dismissal was unfair.

Unlawful dismissal

An application alleging unlawful termination of employment must not be made by an employee if other termination proceedings have already been commenced in respect of the termination of employment.

Alternative dispute resolution

The Bill gives a new and important role to the alternative dispute resolution processes - separate from the role of the AIRC.

Industrial action

Industrial action is father restricted by the Bill - see previous article.

Criminal proceedings may be started against a person for conduct that is substantially the same as conduct in relation to which an order under a civil remedy provision, requiring the person to pay a pecuniary penalty, could be made.

Right of entry restricted

Similarly union right of entry has been restricted by the Bill - see previous article.

Courts

The Federal Magistrates Court has jurisdiction penalties and prosecutions and related matters under the legislation, along with the Federal Court.

States industrial coverage

The Bill goes into considerable detail to cover the transfer of industrial coverage from State instrument to the federal system - to cover constitutional corporations.

Notional agreements preserving State awards are agreements that will exist pending the resolution of the objects of the legislation. The legislation aims to preserve for a time the terms and conditions of employment, as they were immediately before the reform commencement, for those employees.

The aim is to encourage employees and employers for whom those terms and conditions have been preserved to enter into workplace agreements during that time.

Victoria

As the Federal Government has power to directly legislate in relation to IR in Victoria, there are provisions fast tracking the implementation of the standards on pay and conditions to be set by the Fair Pay Commission. It would appear that the current legislative and common rule award provisions would continue to apply pending the setting of the relevant standards by the Fair Pay Commission.

Renumbering the Workplace Relations Act

The Bill was presented as amending the Workplace Relations Act 1996 so renumbering is required to reflect the extensive changes.

The Bill

Workplace Relations Amendment (Work Choices) Bill 2005  - access page

The Bill is on the Parliament website

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