WorkChoices - Senate amendments through House


WorkChoices - Senate amendments through House

The House of Representatives today accepted the Senate’s amendments and passed the WorkChoices industrial relations legislation.


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The House of Representatives today accepted the Senate’s amendments and passed the WorkChoices industrial relations legislation.

The significant changes arising from the Senate amendments are:

The Australian Fair Pay Commission

The Australian Fair Pay Commission (AFPC) will commence from Royal Assent. This means the AFPC can be established ahead of the WorkChoices legislation commencing, but it also allows the AFPC to commence information gathering and research that it can use later in its wage fixing role.

Small business redundancies

The provision that small business (fewer than 15 employees) will not have to pay four weeks’ severance pay for redundancies will also commence from Royal Assent, well ahead of the rest of the legislation.

Union Greenfield agreements

Union Greenfield agreements will also have a nominal life of up to 5 years, the same as AWAs, union and non-union collective agreements. Non-union greenfield agreements will have a life of 1 year.


WorkChoices provides that a range of current terms and conditions in instruments - to the extent that they are 'allowable award matters' - are protected. This means that they apply to the employee under a workplace agreement unless the agreement expressly modifies or excludes the condition.

These protected conditions are: -

  • Rest breaks, including meal breaks
  • Incentive payments and bonuses (but not tallies)
  • Annual leave loadings
  • Public holidays
  • Monetary allowances for reimbursement, skill or disabilities
  • Overtime and shift loadings
  • Penalty rates
  • Outworker conditions
  • Other matters specified by regulation.


The Senate amendments give outworker conditions a special status so that they apply if the workplace agreement provides a lower standard of protection to the outworker.

The Senate amendments also provide that an entity which can be covered by WorkChoices (such as a constitutional corporation) can be bound by the outworker conditions of an award although not acting as an employer. This means that the outworker conditions can apply to an entity higher up the supply chain.


As well, the Senate amendments clarify that the normal ban on restricting contractors in award - because restrictions on contractors are not 'allowable award matters' - do not apply in outworker conditions.

Public Holidays

The Senate amendments provide a day off with pay for seven identified public holidays and a right to reasonably refuse to work on an identified public holiday. These are:

  • New Year’s Day
  • Australia Day
  • Anzac Day
  • Good Friday and Easter Monday
  • Christmas Day and Boxing Day.

Australian Fair Pay and Conditions Standard

WorkChoices provides that four conditions of employment – ordinary hours, annual, personal/carers’ and parental leave – are subject to a universal statutory minimum.

Under the Senate amendments if frequency of payment of wages is not specified in an award, agreement or contract of employment then payment must be at least fortnightly in arrears.

Averaging hours

Under the unamended legislation, hours were to be 38 a week (plus ‘reasonable’ overtime) and could be averaged over 12 months. That averaging period is now more flexible.

Annual leave and workers compensation

Changes have also been made to accrual of annual leave, including clarifying that time on workers’ compensation counts towards annual leave (see detail in attached article).

The Senate amendments also clarify that

  • time on workers’ compensation accrues service for personal/carer’s leave; and
  • that an employee on workers’ compensation may take paid carer’s leave in conjunction with the workers’ compensation unless these entitlements would be prevented by the operation of a federal or state workers’ compensation law. (An employee cannot take sick leave in conjunction with workers’ compensation.)


WorkChoices provides for its commencement on the date of proclamation or six months after Royal Assent, whichever occurs first, with one exception.

Schedule 4 Part 1 provides a power to make regulations about transitional matters arising from amendments to be made to the Workplace Relations Act 1996 after the commencement of WorkChoices and a power to make regulations amending acts which are consequential on the WorkChoices amendments. These regulation powers will commence on Royal Assent.

The Senate amendments have the effect of making three other parts of the act come into effect on Royal Assent. They are:

  • the AFPC provisions
  • the small business severance pay exemption
  • school based apprentice and traineeship provisions (schedule 3 of the Bill).

These commencements include any regulation making power within the provisions.

Detailed treatment

The Director of Australian Business Industrial has prepared a detailed treatment of the significant changes to WorkChoices legislation arising from the Senate amendments – December 2005.


Federal IR changes 2005


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