Australia: WorkChoices – Brave New World

The WorkChoices Legislation has injected a significant degree of complexity into what already was an intricate industrial relations system, founded upon a number of disparate and at times eclipsing Federal & State laws and industrial instruments. This article looks briefly at what AWAs are and whether employers should consider using them. It also summarises the current position with respect to the record keeping requirements under WorkChoices.

AWAs are one of a number of different types of workplace agreements provided under WorkChoices. What distinguishes an AWA from collective types of workplace agreement is that it is an individual agreement made between an employer and an employee. Unlike a common law contract of employment, an AWA must be registered with the Office of the Employment Advocate (OEA).

Unlike a common law contract an AWA, when made and registered with the OEA, displaces awards, certified agreements and other types of industrial instrument which would otherwise determine certain conditions of employment. This means that employers, through AWAs, have a significant amount of flexibility and are basically free to negotiate with employees whatever terms and conditions of employment they wish, subject to some statutory safeguards such as the AWA not including any "prohibited content" and ensuring that the AWA complies with minimum requirements set out in the Australian Fair Pay & Conditions Standard.

Properly drafted, AWAs can permanently remove from the workplace, the applicability of awards and other industrial instruments which would have otherwise covered the employee with the exception of certain conditions known as "protected award conditions" which are not extinguished by the AWA and which remain dormant, only to become operative again in the event that the AWA terminates and no further workplace agreement is entered into.

Workplace agreements, whether entered into with individuals (AWAs) or on a collective basis, offer employers the opportunity to overcome anomalies in their workforce created by different types of employees and operations in different States and Territories. However, extreme care should be exercised when drafting AWAs or indeed workplace agreements generally. A useful introduction to AWAs and workplace agreements generally may be found on the website of the OEA at www.oea.gov.au.

Prior to WorkChoices, record keeping requirements imposed federally were limited. However, under WorkChoices, all employers that are constitutional corporations (eg; trading companies) are required to formally keep records in accordance with the legislation. Record keeping requirements include keeping such details as the employee’s name, date of birth, whether full or part time, when employment commenced and whether the employee is a casual, temporary or permanent employee. There are also requirements with respect to pay records and the information which must be maintained for each employee. There are also detailed requirements for employee payslips.

An issue of major concern to employers in recent times was the requirement for employers to keep records of the daily start and finishing times for every employee. That situation has, to some extent, been alleviated under changes introduced to WorkChoices at the end of last year. The obligation of employers to keep records with respect to start and finishing times is now limited to employees who are entitled to receive overtime payments (whether such entitlement arises under common law or an industrial instrument) and employees who earn less than $55,000 per annum. If an employee earns over $55,000 (as indexed) then employers will only be required to record starting and finishing times if such employee is entitled to receive overtime payments. The record keeping requirements, however, are still quite onerous. As a reprieve to employers, the Government has given employers until the 27 March 2007 to have their systems ready. Thereafter workplace inspectors will be able to demand access to records and if those records are not compliant, employers can be fined up to $2,750 per offence for companies.

For more information, please visit:

Office of the Employment Advocate (www.oea.gov.au)

WorkChoices Helpline (www.workchoices.gov.au)

Office of Workplace Services (www.ows.gov.au)