WorkChoices = fewer choices?

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WorkChoices = fewer choices?

Instead of the Federal Government's claim that its WorkChoices legislation increased the options available to employers and employees, the legislation actually reduces their options by imposing various requirements on the parties. John Della Bosca, the NSW Minister for Industrial Relations, made this claim in an address to NSW HR Week, held in Sydney by the Australian Human Resources Institute Limited (AHRI) on 5 September 2006.

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Instead of the Federal Government's claim that its WorkChoices legislation increased the options available to employers and employees, the legislation actually reduces their options by imposing various requirements on the parties. John Della Bosca, the NSW Minister for Industrial Relations, made this claim in an address to NSW HR Week, held in Sydney by the Australian Human Resources Institute Limited (AHRI) on 5 September 2006.

An imposition?

Della Bosca noted that the legislation contains a lengthy list of 'prohibited content' items, that it is unlawful to include in collective agreements and Australian Workplace Agreements.

Previously, if employers and employees agreed to include items from the list in their agreements, they could do so. Now, however, they are prohibited from doing so, even if they both want to - hence the claim by Della Bosca that 'choice' has been curtailed.

Examples

A small business offers a job to an employee, who before accepting the offer says that he/she would like the agreement to provide for a remedy in the event of an unfair dismissal. If the business had more than 100 employees, the employee (after the qualifying period ended) would be protected by the legislation's 'unfair dismissal' provisions, but employees of smaller businesses are excluded from coverage.

The employer has no intention of dismissing its employees 'unfairly' and wants to attract high-quality employees away from larger employers, so it is prepared to insert such a clause in the agreement negotiated with the employee, in order to gain acceptance of the job offer. However, it cannot do so, because remedies for unfair dismissal are on the list of 'prohibited content'.

Another example is payroll deductions of employees' union membership fees. It is unlawful to discriminate against an employee on the basis of membership or non-membership of a union, so if the employee wants to belong to a union the employer has to accept that decision.

An employer might believe it is more convenient for the pay office to make automatic deductions for union fees when it already does so for other payments such as health fund premiums or loan repayments, than it is to have the onsite union delegate contact each individual employee to collect payments (which may end up being done at least partially during work time and with office emails). Again, however, this item is 'prohibited content'.

Penalties

Della Bosca pointed out that the Act prescribes large financial penalties for including 'prohibited content' items in agreements, so employers need to be fully aware of the relevant provisions in WorkChoices.

Increased government interference

He suggested that these provisions actually increase the level of Government interference in agreement-making, and provide less scope for the parties to negotiate contents rather than more. He also referred to the construction industry, which now has 'seven or eight' bodies (mostly federal ones) with investigative or interrogative powers over it.

Finally on this point, Della Bosca claimed that when provisions are imposed on the parties as per the above scenario, it will have potentially harmful effects on morale, productivity and employee retention - and therefore business costs.

Race to the bottom?

According to Della Bosca, WorkChoices will make it harder for ethical employers to remain competitive. Common rule awards set a range of minimum conditions, including pay rates, that every employer had to comply with, which prevented unscrupulous employers from undercutting their rivals' employment costs (unless of course they breached the provisions).

Now, all that is required is compliance with the much-reduced scope of conditions under the Australian Fair Pay and Conditions Standard and the yet to be released Australian Pay and Classification Scales.

Competition

Della Bosca argued that even the most ethical employers may be forced to cut employee entitlements in order to compete with opportunistic rivals who cut costs to gain a short-term advantage - and when they do, the opportunists might cut further to regain their advantage, hence the 'race to the bottom'.

Remedies

Although employees do have access to remedies for breaches of various provisions of WorkChoices, these remedies are generally cost-prohibitive for them, as the former role of the Industrial Relations Commission as an 'independent umpire' has been considerably reduced.

Collaboration

Della Bosca referred to the successful preparation for the 2000 Olympic Games in Sydney, despite a highly unionised workforce and many logistical pressures.

This showed that collaboration between the parties works much better than what he described as 'a quagmire of rules'. He suggested that this spirit of collaboration cuts through ideologies and is Australia's 'secret weapon' for getting many things done and being globally competitive. However, he claimed that the 'ideological motives' of WorkChoices will place that advantage at risk.

Further information

Further information about HR Week is available from AHRI.

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