It is an irony of the federal election that whilst WorkChoices is recognised as being the chief reason that Labor was elected to government, its new workplace relations system will be firmly based on WorkChoices.
The ALP's Forward with Fairness policy puts the uniform national industrial relations system established by WorkChoices under the Commonwealth's corporations power as its centrepiece and as a critical economic reform for the nation. Indeed, the Labor Government will be seeking to cover employees of unincorporated employers not currently subject to WorkChoices through a referral of powers from the State ALP governments. Victoria has had a single uniform system since the Kennett government referred its industrial relations power in 1996 and this will become the national model despite the expected protestations from State industrial relations tribunals which have become increasingly irrelevant.
WorkChoices introduced new legislated minimum standards for most employees including a minimum rate of pay, a maximum hours standard of 38 hours per week plus "reasonable additional hours", ten days sick / carer's leave per annum, bereavement leave and unpaid parental leave for 12 months. The ALP's Forward with Fairness will carry forward these conditions and add five new legislated minimum standards guaranteeing public holidays, notice of termination and redundancy pay (but only for employers with 15 or more employees ala WorkChoices) and harmonization of long service leave traditionally dealt with by State legislation. New parents will be given a right to take unpaid parental leave simultaneously for the first 12 months and an additional 12 months for one parent plus the right to request a return to part-time work until the child reaches school age, but all of this subject to an employer's right to refuse the request on reasonable business grounds. Curiously, the legislative minimum standard will also require employers to provide all new employees with an Information Statement about the employee's rights and entitlements and to union representation. If the Coalition do not like this, they might like to cast their minds back to the Workplace Relations Fact Sheet all employers were required to provide their employees or be fined in the lead up the election.
The Forward with Fairness recommits the ALP to the award system which was to be phased out under WorkChoices. However, the ALP's commitment is to a modern simple award system to provide industry detail on Labor's legislative minimum standards. Labor's new awards are to be limited to the so-called "allowable matters" under WorkChoices and the Commission's first task is to heighten the urgency of the award rationalization process commenced under WorkChoices to prepare the groundwork for the ALP's new industrial relations system to commence on 1 January 2010. Awards won't apply at all to Howard's battlers who are now earning over $100,000 in the mining sector or elsewhere.
As has been well documented, the ALP will preserve the union hated AWAs already in place for up to five years under WorkChoices and provide further transitory relief until the end of 2009 for employers who wish to sign up new individual statutory agreements to be known as Individual Transitional Employment Agreements "(ITEAs") where AWAs are already in place. Even with the abolition with AWAs, awards will now contain individual flexibility clauses which can be negotiated between an employer and employee at the enterprise on a no disadvantage basis. For instance, it can be agreed that an employee will start early and finish early and the employer will not need to pay penalty rates as is currently permitted under the Fairness Test applicable to AWAs.
Exit polling suggested that the aspect of WorkChoices which voters found to be most abhorrent was the abolition of unfair dismissal rights for employees of firms with 100 employees or less. In now appears the Labor Government will not be reintroducing unfair dismissal laws until 2010 so as to address the concerns of small business. The Labor Government will work with the small business sector to create a new Fair Dismissal Code so that where an employer has genuinely complied with the Code, it will be deemed to be a fair dismissal. There will be no formal written submissions, cross-examination and no hearing. The ALP will retain the WorkChoices qualifying period to bring a claim of six months for most organizations and extend it to 12 months for employees of small employers with fewer than 15 employees.
Much has been made of the Labor Government's retention of the rules governing union rights of entry to workplaces and secret ballots before industrial action under WorkChoices. The only radical departure from WorkChoices is the introduction of the new duty upon employers to bargain with unions in good faith where a majority of employees at the workplace want a union agreement. This is the introduction of the so-called "50% +1" rule used for collective bargaining in the UK and the US. Whilst employers will be required to recognize a union's right to bargain collectively on behalf of employees and negotiate in good faith with the union, there will be no requirement to make an agreement or be made subject to compulsory arbitration.
With Labor committed to releasing a full exposure draft of the legislation for public consultation and comment over the course of 2008 and not being in a position to roll out its new system until 1 January 2010, business is likely to find the more things change … the more they stay the same...
Tim Greenall is a Special Counsel at Madgwicks Lawyers and a Senior Lecturer in Law at La Trobe University.
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