One of the initiatives of the Rudd Government, as part of
its workplace relations reform, is the implementation of an
award modernisation process. (The first stage taken by the
Government was to amend the Workplace Relations Act
("the Act") via its transitional industrial
relations legislation amendment bill.)
The responsibility for the award modernisation process
has fallen on the Australian Industrial Relations Commission
("AIRC"), and to this end, the President of the
AIRC, Justice Giudice, issued a statement on 29 April 2008
outlining the timetable the AIRC has set down with regard to
the process and its completion by December 2009. The
statement, which can be accessed on the following link:
outlines the legislative basis under which the award
modernisation process will occur and the factors to which the
AIRC must have regard, which are various and broad ranging
but include: promoting the creation of jobs, high levels of
productivity and high levels of workforce participation;
protection of young people and the low paid; the need to
eliminate discrimination in the workplace, and also the need
to assist employees with work/family balance.
As outlined by the President, modern awards may include
terms relating to: minimum wages, types of employment, when
work is performed, overtime rates, penalty rates, annualised
wages and salaries, allowances, leave and leave loadings,
superannuation and procedures for consultation,
representation and dispute settlement. In certain
circumstances, modern awards may also include provisions
which interact with proposed national employment standards of
which there are 10. These standards include: maximum weekly
hours of work; requests for flexible working arrangements;
parental leave; annual leave; personal/carer's leave and
other leave; public holidays; and notice of termination and
redundancy pay. These minimum standards will underpin the
modern awards to provide, according to the Government, a
comprehensive safety net for all employees.
The AIRC has advised that, where convenient and
appropriate, industries will be grouped together in one
modern award. In some cases, several industries may be dealt
with together. Further, the AIRC has advised that this will
be a "fluid" process and that some industries may
move from one award grouping to another. Within each industry
or occupation, the principal Federal Award will usually be
the starting point for drafting, although the AIRC advises
that other non-enterprise awards in the same industry may be
As the next stage of the process, the Commission will be
conducting a program of consultation (between now and the end
of May) particularly in relation to the draft list of
priority industries and occupations, the draft model award
flexibility clause and the draft timetable set down. The
draft list of priority industries in the list of 19, include
aged care, higher education, clerical occupations and
Of note is the proposed award flexibility clause to be
inserted in modern awards, which has the purpose of allowing
an employer and employees to modify the application of the
standard award provisions to a particular workplace within
the limits specified in the relevant award clause. This will,
of course, also be subject to the no disadvantage test.
The timetable set down by the AIRC is ambitious with 12
December 2008 being listed as the final date for the making
of priority modern awards – that is, those currently
listed in the 19 occupations/industries.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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