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The Workplace Relations Bill: Some Sticking Points
Steve O'Neill
Economics, Commerce and Industrial Relations Group
Speakers addressing the Labour Market Reform session at the Conference
of Economists (Australian National University (23-25 September
1996) commented on whether amendments to the Workplace Relations Bill
(WRB) would hamper the labour market reform process. Professor Judith
Sloan (Flinders University) and Michael Costa (NSW Labor Council) commented
on areas of the Bill which may or may not be amended following the Senate's
Report on Considerations of the Workplace Relations and Other Legislation
Amendment Bill 1996. (The WRB re-titles and substantially amends the
Industrial Relations Act.)
Which provisions might be so affected? Those issues addressed at the
Conference are set out below (including a brief explanation of the provisions).
1. Allowable Award Matters. Proposed section 89A limits the jurisdiction
of the Australian Industrial Relations Commission (AIRC) to 18 matters.
Award clauses deemed to be outside the 18 matters listed in proposed subsection
89A (2) (eg superannuation provisions) will, after an 'interim period'
(18 months), be rendered unenforceable. Proposed section 88B curtails
the arbitration power of the AIRC by limiting it to award safety net issues.
(Note that where parties attempt to negotiate a certified agreement, the
AIRC retains a role in arbitrating matters, including non-allowable matters,
not resolved during negotiations).
2. Paid Rates Awards. Proposed sub-section 89A (3) stipulates
that awards made by the AIRC be minimum rates awards, and that 'paid rate'
awards should be varied over the interim period to comply as minimum rates
awards (which means, inter alia, that the award pay rates should be separated
from any 'over-award' components).
After this time, parts of an award not consistent with allowable matters
will cease to apply (Item 44 in Schedule 5 of the WRB).
3. Part-time employment. While the WRB will allow the AIRC to
include in awards provisions governing part-time work (proposed subsection
89A (2) ®), this will not extend to such provisions governing maximum
or minimum hours, nor stipulate the proportion of the workforce to be
so employed (proposed subsection 89A (4)).
4. Australian Workplace Agreements. AWAs are provided
for in Schedule 11 of the WRB. An AWA is to become effective after the
time of its filing with the Employment Advocate (proposed sections 170VN
and 170VO). It has been argued that the AIRC should have the function
of vetting AWAs. (Jurisdictional issues affecting state awards and employment
agreements and federal agreements are outlined below under State or
Federal Jurisdiction?)
5. Equal Pay. The present Act at sections 170BA-170BI provides
the AIRC with powers to determine equal pay issues on both award issues
and in over-award areas. Schedule 8 of the WRB repeals these provisions,
although the WRB includes a number of equal pay provisions in respect
of determining award pay (proposed section 88B (g)); in agreements (proposed
sections 170XM & 170XT) and through the role of the Employment Advocate
(proposed section 83BB).
6. Right of Entry. Currently the AIRC and the Industrial Registrar
can authorise entry into prescribed workplaces. More commonly, award provisions
may provide for right of entry of union officials. The current provision
granting union officials right of entry, section 286 (of the Industrial
Relations Act) is to be repealed and replaced by a new section 286
and section 286A which restrict entry upon invitation from a union member.
The WRB proposes section 127AA which will render current entry provisions
in awards unenforceable.
7. Enterprise Branches. Proposed section 201A requires the rules
of unions to allow for the formation of enterprise branches. These will
have a certain degree of autonomy from the union. Proposed sections 232A-232L
prescribe the manner in which members in a workplace can form (and dissolve)
such a branch.
8. State or Federal Jurisdiction? The current 'fast-tracking'
provisions (sections 111 1A - 111 1H) are to be repealed. Proposed section
111AAA will require that a transfer to federal jurisdiction be in the
public interest (and not just in the interests of the parties). Under
proposed section 152A, a corporation bound by a federal award will not
be bound by a State award unless it applies to be so bound.
Proposed subsection 152 (2) prevents federal awards automatically overriding
State employment agreements.
As well, proposed subsection 152 (3) would allow unincorporated firms
the ability to seek enterprise agreements at the State level by ensuring
that such an agreement will override a federal award.
9. Conveniently Belong. This principle affects the membership
of registered unions and employer associations in so far as applications
to cover a certain section of membership can be approved or rejected under
the conveniently belong principle (sections 189 & 204 of the Industrial
Relations Act). The WRB repeals these provisions but retains
and modifies the current section 118A to allow the AIRC to settle potential
demarcation disputes by making orders on union coverage.
10. 'Disamalgamation' of unions. The WRB introduces the option
for unions formed from amalgamations since February 1991 to revert to
their previously registered constituent parts, or, allow the branches
of such unions to be formed as 'organisations' and registered. Proposed
sections 253ZH-253ZU cover the disamalgamation process. While the notion
of reversing the union amalgamation scheme is contentious, Michael Costa
claimed that it was unlikely that the provisions would be amended.
11. Junior Rates. Under the current Act, junior rates of pay
(ie those based on age) were to be removed from awards by mid- 1997 (subsections
150A(2)(b) & (4)). Pay rates were to be set according to competency
standards. The WRB repeals section 150A and proposes subsection 143 (1D)
which provides that pay rates based on age are not discriminatory.
12. Termination. The current legislative provisions on termination
rely on the external affairs power of the Constitution. This will no longer
be the case. Proposed subsections 5 (8) & 5 (9) allow the States to
confer certain powers on the AIRC and Federal Court in respect of termination
(and so retain a role for State tribunals in termination matters - note
also proposed subsection 152 (4)). The proposed termination provisions
are to apply to federal award employees but such employees employed by
unincorporated enterprises may lose access to their award provisions on
termination (only notice of termination will be an allowable matter)
and not be covered by the proposed legislative provision. Much hinges
on the response of the States.
Other aspects of termination also relate to the allowable matters issue.
For example, procedures governing the method and process of redundancy
would not appear to be an allowable matter, while provisions setting out
the quantum of redundancy pay would continue in federal awards (subsection
89A (2) (m)).
13. Industrial Action. The WRB proposes (sections 187AA &
187 AB) to render illegal, pay accruing to employees engaged in industrial
action (currently defined in subsection 4 (1) of the Industrial Relations
Act)).
This means that where bans are imposed (for example, on the installation
of new equipment) while other work is performed, the provisions will make
it illegal for employers to pay their employees.
Note that more detail on the provisions of the WRB is provided in the
PRS Bills Digest No.96: The Workplace Relations and Other Legislation
Bill 1996.
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