WorkChoices regulations – what they mean for you

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WorkChoices regulations – what they mean for you

The long-awaited regulations for the WorkChoices legislation were released by the Federal Government in the middle of the Commonwealth Games yesterday, giving detail on how workplaces will be affected by the new laws.

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The long-awaited regulations for the WorkChoices legislation were released by the Federal Government in the middle of the Commonwealth Games yesterday, giving detail on how workplaces will be affected by the new laws.

Matters covered include secret ballots, medical certificates, prohibited content of agreements and how state laws will be affected.

The regulations and the legislation will come in effect together on 27 March.

While employer groups, the ACTU, individual unions, IR academic specialist and industrial lawyers are poring over the regulations (and already finding unexpected consequences), the Government claims the major changes that the regulations will introduce include:

Secret Ballots

Under the legislation, employees will only be able to take protected industrial action where it is authorised by a secret ballot upon application to the Australian Industrial Relations Commission (AIRC) by an employee, group of employees or union.

The Australian Electoral Commission is the default ballot agent, however other entities may also be the ballot agent.

The AIRC must compile a roll of voters or order the ballot agent to do so. Where a union has applied for a ballot order, only those employees who are members of the applicant union are eligible that are employed in the relevant workplace and are not a party to an AWA can be included on the roll.

Details

The regulations require a party who provides a list of employees (for the purpose of a roll of voters for a secret ballot) to make a declaration as to the accuracy of the list.

The regulations require employees to be made aware of the ballot agent’s contact details, once a ballot order is made and allow them to contact the ballot agent to confirm whether they are on the roll of voters and if not be added to the roll.

The regulations limit the role of scrutineers to observing the ballot count itself, which would eliminate the risk of scrutineers accessing protected information.

Medical Certificates

Under WorkChoices, all employees are entitled to up to 10 days paid personal/carer’s leave.

An employer may request an employee to provide evidence of illness or injury. If such a request is made, the employee must provide a medical certificate or, if this is not reasonably practicable, a statutory declaration.

Section 93A of the Act provides that a medical certificate is a certificate signed by a registered health practitioner

Area of practice

The Regulations confirm that a registered health practitioner can only issue a medical certificate in respect of the area of practice in which that practitioner is registered or licensed under a State of Territory law.

The Act does not authorise the issue of medical certificates by registered health practitioners unless they can do so under the registration scheme established by State or Territory legislation.

The Regulations confirm that a registered health practitioner is not able to issue medical certificates for personal injury and illness under the Act outside their area of professional expertise or terms of registration.

Minister's comment

Workplace Relations Minister Kevin Andrews says these regulations will ‘put to rest the unfounded concerns expressed by some organisations that veterinarians could issue medical certificates for the purposes of the new WorkChoices system’.

However pharmacists are also ‘registered health practitioners’ with a seemingly far wider range of ‘professional expertise’ than, say, a chiropractor. What will be the limits on pharmacists?

To protect against unfairness, the Act also provides that an employee is not required to comply with an employer’s request where reasons beyond their control prevent it.

Minimum wages

The Australian Pay and Classification Scales (APCSs) will be derived from pre-reform wage instruments, typically federal and state awards. Regulations will provide that the following are recognised:

2005 Safety Net Review (2005 SNR)

The Regulations will enable the 2005 SNR increase to flow through to preserved APCSs derived from pre-reform non-federal wage instruments (i.e. State awards).

This is consistent with the Government’s commitment that wages will not fall below the minimum and award classification wages set following the 2005 SNR increase.

Victorian minimum wage orders

The Regulations prescribe Victorian ‘minimum wage orders’ to be pre-reform wage instruments, thereby enabling preserved APCSs to be derived from those instruments.

Slow worker permits

The Regulations prescribe existing Slow Worker Permits as pre-reform wage instruments for a period of two years. The two-year timeframe would provide employees subject to a slow worker permits with an appropriate period within which to make alternative workplace arrangements (e.g. enter into an AWA that provides for the application of the Commonwealth Supported Wage System).

How much people with a severe mental disability will be able to participate in voluntary, fully informed AWAs remains to be seen.

Notional adjustment to express basic rates of pay as hourly rates

The Regulations will clarify how weekly rates and annualised salaries will be notionally adjusted so they are expressed as hourly rates.

Wage guarantee relating to Victoria

The Regulations provide a relevant rate of pay or method of calculating the rate of pay for junior employees, employees with a disability and trainees.

Prohibited content in former State Agreements and Awards

Under WorkChoices former state awards and agreements become notional agreements preserving state awards (NAPSAs) and preserved state agreements (PSAs).

WorkChoices contains a number of measures that are directed at removing industrial relations barriers to apprenticeships and traineeships.

The regulations will specify that anti-AWA provisions and provisions which limit the duration of apprenticeships and traineeships are prohibited from being included in incoming state awards. These regulations will be retrospective, because the provisions in question would have been permissible when the instruments were made in the relevant state system.

The prohibited content for new agreements under WorkChoices set out in Section 101D of the Workplace Relations Act will not apply to former state agreements that come into WorkChoices.

Prohibited content in new federal agreements

The regulation confirm that matters that cannot be included in agreements (prohibited content) include:

  • prohibiting AWAs;

  • restricting the use of independent contractors or on-hire arrangements;

  • allowing for industrial action during the term of an agreement;

  • provisions for trade union training leave, payroll deduction of union fees, payment of union bargaining fees to trade unions, the provision of information to unions about employees, union encouragement or discouragement clauses or paid union meetings;

  • re-negotiation clauses;

  • mandating union involvement in dispute resolution;

  • providing a remedy for unfair dismissal;

  • providing for union right of entry;

  • the forgoing of annual leave credited to an employee, other than in accordance with the Act;

  • terms that prevent the disclosure of details of the workplace agreement by a person bound by the agreement;

  • objectionable provisions;

  • discriminatory terms, and

  • matters that do not pertain to the employment relationship.

Section 101E provides that an employer must not lodge an agreement containing prohibited content and provides a penalty for doing so.

Maritime foreign crews exempt

The regulations confirm that non-citizen crew members of commercial vessels operating under permits granted under section 286 of the Navigation Act 1912 and foreign corporations in their capacity as employers of non-citizen crew members working on ‘permit ships’ are not covered by the Act.

WorkChoices and State laws

The legislation expressly excludes the operation of some laws (ie State and Territory industrial laws) and expressly preserves the operation of other laws (eg occupational health and safety). Section 7C of the Act allows regulations to both expressly exclude or expressly preserve certain laws.

How state laws affect WorkChoices employers and employees

The Workplace Relations Regulations 2006 (WR Regulations) provide that the following matters in State systems will lapse for employers and employees covered by WorkChoices:

  • matters about an award, including the making or variation of an award;

  • matters about wages, including applications to vary awards to amend wages provisions, State wage cases, and applications for general orders to apply to a State, industry in a State, etc relating to wages;

  • matters about an agreement (including certification, variation);

  • matters involving general dispute resolution; and

  • matters about industrial action, including strike pay.

The WR Regulations provide that the following will not lapse for employers and employees covered by WorkChoices:

  • Enforcement and compliance provisions relating to enforcement of rights or obligations which existed prior to the start of WorkChoices under a State or Territory industrial law;

  • State termination of employment provisions - in relation to a termination of employment that occurred prior to the start of WorkChoices;

  • ‘Unfair contract provisions’ where an application is on foot at the start of WorkChoices; and

  • State transmission of business provisions will continue to apply in relation to a transmission of business that occurred prior to reform commencement.

Other aspects

The regulations will also preserve appeal rights under State laws that relate to decisions varying awards for a period of six months to ensure that the result of an appeal can be flowed on to a pre-reform wage guarantee and preserved award entitlements under WorkChoices.

The WR Regulations will also:

  • override the Contracts Review Act 1980 (NSW) to the extent that it provides an unjust contracts jurisdiction in relation to contracts between employers and employees covered by WorkChoices;

  • save provisions in the Industrial Relations Act 1996 (Qld) to the extent necessary to give effect to provisions that provide protections:

    • against termination for making a public interest disclosure under the Whistleblowers Protection Act 1994 (Qld) or a complaint under the Health Rights Commission Act 1991 (Qld); and

    • against termination and other detrimental treatment by reason of performance of duties in an OHS role or making an OHS complaint and provisions in the Industrial Relations Act 1996 (Qld)

State laws dealing with training and federal awards and agreements.

Section 7D of the Act provides that an award or workplace agreement prevails over a law of a State or Territory or a State industrial instrument, to the extent of any inconsistency.

Certain laws are excepted from the operation of section 7D, including a law of a State or Territory dealing with ‘training arrangements’.

The WR Regulations will ensure that federal awards and agreements prevail over state or territory laws dealing with training arrangements to the extent that those laws deal with employment matters that would normally be dealt with in an industrial instrument (eg remuneration, penalty rates, leave loadings).

The WR Regulations will also ensure that child labour laws and anti-discrimination laws will not be overridden by awards or agreements made under the WR Act.

State OHS laws

The Act imposes additional conditions on entering premises pursuant to State or Territory Occupational Health and Safety (OHS) legislation. The WR Act provides that an ‘OHS law’ is ‘a law of a State or Territory prescribed by the regulations for the purposes of this definition.’

The WR Regulations will prescribe:

  • Occupational Health and Safety Act 2000 (NSW)

  • Occupational Health and Safety Act 2004 (Vic)

  • Sections 49G and 49I-49O of the Industrial Relations Act 1979 (WA) to the extent that they provide for or relate to right of entry to investigate a suspected breach of the Occupational Safety and Health Act 1984 (WA) or the Mines Safety and Inspection Act 1994.

Related

Federal IR changes 2005/2006  

 

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