With the successful passage of the Labor Government’s Fair Work Bill through the Federal Parliament the much hated WorkChoices legislation will cease to exist on 1 July 2009.
The harsh and unjust WorkChoices legislation which was passed by John Howard’s Liberal/National Party Government threatened every employee’s wages and conditions and stripped away protection against unfair dismissal for employees.
It will now be dumped in the rubbish bin on 1 July 2009.
Congratulations to all Delegates, HSRs and members who participated in the campaign since 2005 to oppose and overturn the WorkChoices legislation.
Your hard work in attending meetings and rallies, publicising the issues to members, signing petitions, visiting Members of Parliament together with the SDA’s telephoning of members in marginal seats produced this result.
Congratulations to you all!
We hope that the Liberal and National Parties never again try to pass such extremist legislation to strip away the rights and entitlements of employees.
Fair Work Bill
Much of the new legislation is expected to start on 1 July 2009 but significant parts start on 1 January 2010. The main points are outlined below:
National Employment Standards
The 10 legislated National Employment Standards together with minimum pay rates (which are reviewed annually) apply to everyone from 1 January 2010. They also apply to those on existing enterprise agreements and to those who are on AWAs approved before April 2008.
Modern Awards
The new modernised awards which reduce 3000+ awards down to 150-200 industry and occupation awards start on 1 January 2010. They may contain 10 allowable matters in addition to the 10 NES.
Modern awards are reviewed every 4 years by the new industrial commission called Fair Work Australia.
However, wages are reviewed annually by Fair Work Australia.
All enterprise agreements made from 1 January 2010 must meet the better off overall test (BOOT) against the relevant modern award.
Bargaining in Good Faith
There is a requirement for an employer and a union to bargain in good faith.
This means they need to meet, to disclose relevant information and to participate in the negotiating process.
Fair Work Australia may make orders directing a party which is not bargaining in good faith.
Enterprise Agreements
All agreements must be collective agreements. There are no individual agreements like AWAs.
Where the union has members it is legally entitled to be involved in the negotiations and cannot be excluded by the employer.
An agreement may include all matters relating to the employer-employee relationship and most matters relating to the employer-union relationship.
All enterprise agreements must meet the better off overall test (BOOT) against the relevant modern award. Fair Work Australia must check enterprise agreements to ensure they pass the BOOT test.
The NES and the award rates of pay (as varied from time to time) apply as minimum standards regardless of anything in the enterprise agreement.
Fair Work Australia
A new industrial commission called Fair Work Australia will cover the duties now performed by the Australian Industrial Relations Commission, the Australia Fair Pay Commission and the Workplace Authority.
All existing members of the Australian Industrial Relations Commission will be appointed to Fair Work Australia.
Unfair Dismissals
The Fair Work Bill restores employees’ rights to challenge an unfair dismissal.
An employee who has served a six months qualifying period with an employer may take an unfair dismissal case to Fair Work Australia.
An employee in a small business needs to serve a twelve month qualifying period to take an unfair dismissal case. “Small business” from 1 January 2011 means a business employing less than 15 full-time, part-time and regular casual employees. Prior to 1 January 2011 “small business” means a business employing 15 equivalent full-time employees.
The Government has removed the jurisdictional exemption from taking an unfair dismissal case if it is for “operational reasons”.
Employees have 14 days after the date of dismissal to lodge a claim with Fair Work Australia.
Union Issues
Whilst we are very pleased to see WorkChoices finally abolished unions want to see improvements in the new legislation in some areas including:
- Content of enterprise agreements. The content under the new legislation is much better than under WorkChoices but parties should be able to include any matters they negotiate between themselves in their enterprise agreement without restriction.
- Right of entry. There are still fairly strict right of entry provisions affecting Union Officials.
- Enterprise Awards may continue to exist. Any enterprise award which is not abolished needs to be brought up to the standard of the relevant modern award.
- AWAs and enterprise agreements made under WorkChoices continue to exist indefinitely. There needs to be a date by which they cease to exist or are brought up to the standard of the relevant modern award applying the BOOT test.
- Fair Work Australia only has the power to arbitrate on workplace disputes where the employer and employee/union agree. Prior to WorkChoices the Commission had the final power to arbitrate when all other steps to resolve the issue had failed. This power needs to be restored to Fair Work Australia.
Further Legislation
Another piece of legislation – the transitional and consequential legislation – has been introduced into Parliament by the Federal Government. This will mainly deal with provisions covering the transitional period as the Fair Work Bill takes effect. It is important that this legislation is passed by the Parliament to finish the job of moving to a new industrial relations system.
