The Guardian 20 February, 2008
New award system:
a small step forward
Anna Pha
The Workplace Relations (Transition to Forward with Fairness) Bill 2008 provides the initial steps towards the abolition of Australian Workplace Agreements (AWAs), the centrepiece of the former Howard government’s highly unpopular WorkChoices system. The Transition Bill also instructs the Industrial Relations Commission to begin the process of stripping back and rationalising awards.
From the date on which the legislation comes into force there will be no new AWAs. Employers in workplaces where there are AWAs may use new individual transitional employment agreements (ITEAs) to hire new and existing employees. The ITEAs must meet a new "no disadvantage test", replacing the WorkChoices so-called "fairness test", under which ITEAs must not disadvantage an employee against an applicable collective agreement, or where there is no such collective agreement, an applicable award. ITEAs will have a nominal expiry date of no later than December 31, 2009.
The ITEAs are a transitional arrangement. As from January 1, 2010 the only form of individual contract permitted will be under common law. There will be no more individual contracts under the jurisdiction of the Workplace Relations Act.
The fallback position as AWAs and ITEAs are terminated is the relevant collective agreement, or if there is not one, then the full award. It will no longer be possible for employers to wipe out or undermine award conditions.
The government is also seeking to remove from the Skilling Australia’s Workforce Act provisions that make funding to TAFE colleges conditional on offering AWAs. It is committed to removing similar restrictions on universities.
National Employment Standards
The government has issued a discussion paper proposing 10 legislated (statutory) National Employment Standards (NES) and is seeking comments by April 4, 2008.
The matters dealt with by the NESs are:
(1) Maximum weekly hours of work
(2) Requests for flexible working arrangements
(3) Parental leave (and related entitlements)
(4) Annual leave
(5) Personal/carer’s leave and compassionate leave (includes sick leave)
(6) Community service leave
(7) Long service leave
(8) Public holidays
(9) Notice of termination and redundancy pay
(10) Fair Work Information Statement.
The paper proposes specific provisions and raises many important issues for discussion. These conditions represent key minimum entitlements for all employees in Labor’s new system. They are the only protection for workers not covered by an award or collective agreement. The NESs do not cover minimum wages which are contained in the new awards.
Award rationalisation
The NESs constitute one of two components of the new "safety net". The other component is a new system of rationalised awards.
The bill directs the Industrial Relations Commission to commence rationalization of awards which may contain up to 10 allowable matters, which cannot exclude or undermine the 10 NESs. The new "modern awards", as they are referred to in the bill, will be able to elaborate on the specific matters (but not long service leave) covered by the NESs and on certain additional matters specified in the legislation.
For example, they might contain provisions providing for pay and conditions for outworkers if that is relevant to the industry covered by the award. They could contain leave loadings (the proposed NES on annual leave does not provide for a leave loading), superannuation, procedures for consultation and dispute settlement, annualisation of wages.
They could cover types of employment such as full-time, regular part-time, casual, shift work, rostering, rest breaks, variation of working hours, and the span of ordinary hours of work. In the area of wages they could include junior rates, trainee rates, piece rates, bonuses, overtime payments and penalty rates.
The bill would allow many important provisions of awards that were stripped by the Howard Coalition government.
These provisions "may only be included in a modern award to the extent that they provide a fair minimum safety net".
The inclusion of right of entry provisions such as for interviewing an employee or inspecting or viewing work performed on premises is not permitted. These areas are confined to the provisions of the Workplace Relations Act.
The Commission will play a central role in issuing orders and approving and varying modern awards.
The awards will be primarily along industry lines, and it can be expected that the rationalization process will result in far fewer awards.
The government plans to have the NES and new awards commence at the beginning of 2010. They have a tight time-line, short periods of consultation and the Coalition have already begun thwarting their efforts in Parliament.
It is important that the legislation and discussion document on NESs are studied carefully and trade unions, left political parties and other progressives make submissions. The bill and discussion paper do make proposals that would be an improvement on WorkChoices. They are a start, but a great more is needed.