Coverage of WorkChoices - employer questions about WorkChoices

Q&A

Coverage of WorkChoices - employer questions about WorkChoices

Here are some questions and answers addressing some coverage issues and WorkChoices - touching on AWAs, non-award employees and off-shore jurisdiction.

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Here are some questions and answers addressing some coverage issues and WorkChoices - touching on AWAs, non-award employees and off-shore jurisdiction.

This is another in a series of articles on the most commonly asked questions by employers on aspects of the WorkChoices legislation. It is intended that this series will assist employers in understanding the complex issues raised by the new legislation and, in some instances, highlight areas that may require further legislative amendment or may be potentially areas of future legal challenge.

As with all articles with respect to WorkChoices the commentary is based on the presumption that the employer is a constitutional corporation, unless otherwise specified.

AWAs

Q. We wish to offer Australian Workplace Agreements (AWAs) to employees working on offshore oil/gas platforms off both the coast of Australia and New Zealand. Can we do this?

A. A pre-reform AWA will continue to operate even after the nominal expiry date has elapsed unless terminated or replaced by a new AWA.

If a pre-reform AWA is terminated and not replaced, an employee's entitlements will come from any applicable certified agreement or collective agreement, or an applicable award.

Q. We wish to offer Australian Workplace Agreements (AWAs) to employees working on offshore oil/gas platforms off both the coast of Australia and New Zealand. Can we do this?

A. Not necessarily.

The minimum conditions required to be observed in an AWA are the WorkChoices Standard, ie Australian Pay and Classification Scale (APCS), annual leave, personal/carer's leave, parental leave, 38 hour working week, Federal minimum wage, default casual loading of 20% (unless higher under the APCS), the prescribed paid public holidays, notice of termination by the employer, and meal breaks.

In addition, certain award conditions are 'protected' and must be included in the agreement unless these protected award conditions are expressly modified or excluded by the parties. Also, an AWA made under WorkChoices cannot contain provisions that are regarded by the Act as 'prohibited content'.

Non-award employees

Q. We wish to offer Australian Workplace Agreements (AWAs) to employees working on offshore oil/gas platforms off both the coast of Australia and New Zealand. Can we do this?

A. The minimum wage ($12.75 per hour), 38 ordinary hour week, four weeks' paid annual leave, 10 days' paid personal/carer's leave, two days compassionate leave, 52 weeks' unpaid parental leave, prescribed paid public holidays, right to reasonably refuse to work a public holiday, notice of termination by the employer, and an unpaid meal break after five hours continuous work.

There may also be other minimum entitlements bestowed by State or Territory employment legislation, eg long service leave.

Any other conditions of employment are subject to negotiation by the parties.

Off-shore jurisdiction

Q. We wish to offer Australian Workplace Agreements (AWAs) to employees working on offshore oil/gas platforms off both the coast of Australia and New Zealand. Can we do this?

A. The Workplace Relations Act (which incorporates WorkChoices) defines an 'Australian-based employee' to mean, amongst other things, an employee whose primary place of work is in Australia, in Australia's 'exclusive economic zone' or in, on, or over Australia's 'continental shelf'.

An 'Australian employer' means, amongst other things, an employer that carries on in Australia, in Australia's 'exclusive economic zone' or in, on, or over Australia's 'continental shelf' an activity whose central management and control is in Australia. This means employees performing work inside the 'exclusive economic zone' or the 'continental shelf' would be covered by Australian law.

As for employees in New Zealand, the conditions of an AWA could still apply provided they did not contravene NZ employment laws.

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