4.0 TERMS OF REFERENCE
(a) Whether the various State Industrial jurisdictions can or will
provide adequate protection for workers employed under State Agreements.
The submissions and evidence identifies that each State Government
has enacted legislation that provides for particular forms of agreements
to be entered into. There is a wide variety of minimum standards underpinning
those agreements, a wide variety of protection for parties negotiating
and entering into agreements and finally a wide variety of protection
for workers employed under those agreements.
This Term of Reference questions whether the State jurisdictions “provide
adequate protection for workers employed under State Agreements”.
The question of what is adequate protection for workers is debatable
and not an absolute concept. Consequently, it is not appropriate for
this Committee to judge individual State's jurisdiction. The Workplace
Relations and Other Legislation Amendment Bill under consideration
by this Committee does not, nor would it be appropriate for it to override
the State jurisdictions and impose different protections for workers
employed under State Agreements than those currently provided for.
The existing range of protections for employees currently under State
Agreements is a consequence of the legislation enacted by each Sovereign
State Parliament. As observed by ACCI:
… It is simply not appropriate to sit there and state that,
because there are differences, that is inappropriate.
These Parliaments are elected and answerable to electorates. Industrial
legislation was a feature of each State election campaign. An electorate
spoke in terms of electing both Governments. The appropriate way to
deal with these issues is through joint Federal/State discussions. We,
for our part, have been attempting to initiate those discussions for
some years. This Government has taken that step. The previous Government
simply refused to do anything. [55]
The Committee was also advised that a likely future development was
for the Victorian State Government to cede its powers on industrial
relations to the Federal Government. This was explained as follows:
Mr John - Not if the situation that the Victorian Government
appears to be considering, and considering actively, in conjunction
with the Commonwealth comes about. From my understanding of public
statements and discussions that we have had with the Minister for
Industrial Relations, the Commonwealth's desire to have either complementary
legislation to reflect the decisions that it has taken in federal
legislation implemented by the various states, if they were put into
place, then the Commonwealth would be able to enforce its guarantee.
Senator Sherry - If that happens, given your discussions with
the Victorian Government. do you have any idea of the timing of such
a proposal by the Victorian Government?
Mr John - I can only refer to the statements that Mr Birrell
has made to the Victorian Parliament. They indicate that detailed consideration
of a referral of powers will occur later this year. The focus that the
Victorian Government is now taking is on both the content of the Government's
workplace reform package and the passage of that package through the
Federal Parliament. [56]
This development would be an important step forward in the Government's
desire to harmonise Australian industrial relations' systems.
Section 152
The Opposition Senators make much of the fact that s.152(2) and (3)
provides that a Federal award is not binding on any employee whilst
their employment is regulated by a State employment agreement.
This provision is entirely consistent with the Government's policy
released prior to the election “Better Pay for Better Work”
which states:
13.2 As a general principle employees and employers should have the
right to choose the jurisdiction and nature of the legal relationship
that they wish to enter. Employees who enter into an agreement under
State law with their employers should not have to suffer that contract
being negated by an application by a union for Federal coverage by
the AIRC. However, employees who are covered by the Federal award
and wish to remain under the award will continue to remain under the
Federal system.
Employees currently employed under Federal awards have the choice to
remain. Should however an employer dismiss an employee under a federal
award for refusing to enter into a State employment agreement, that
employee is protected from such action by being entitled to access the
unfair dismissal jurisdiction at the AIRC.
Equally, the State jurisdictions generally have provisions prohibiting
an employer forcing an employee into accepting a State employment agreement
against their will.
Opposition Senators also express concern that the principle of s152
is that a State agreement would override a Federal award and argue that
this is a radical reversal of normal industrial relations practice.
This however, ignores the fact that prior to amendments in 1993, the
Federal Industrial Relations legislation included a provision s41(1)(d)
that, as explained by ACCI:
Mr Hamilton - Firstly, I wish to address the very important
issue of State enterprise agreements and Section 152. Those amendments
have to be seen in the proper context. The context is that from 1904
until 1992 the balance between Federal and State systems was regulated
by a section which looked exactly the same. Section 41(1)(d) and Section
111(1)(g) provisions, which provide a balance between Federal and
State systems, were totally unchanged from 1904 until 1992. Even with
those provisions there was a gradual drift from state to federal systems
given the fact that a Federal tribunal was deciding the extent of
its own, in effect, coverage. The inevitable result was a drift from
State to Federal.
In 1992, for the first time since 1904, the balance between Federal
and State systems was changed by the Federal Government as a response
to requests from trade unions. The change was directed at the Victorian
industrial relations system as an attempt to override and nullify
amendments made to the Victorian industrial relations system - a direct
challenge to that system. Those 1992 amendments brought about a period
of intense conflict between Federal and State systems.
This Bill here starts to restore a process of a cooperative relationship
between Federal and State systems which is absolutely essential if
we are to bring about a harmonised process of joint Federal-State
legislation and one national system based on joint Federal-State legislation.
Without that sort of cooperative environment, that result would be
impossible. An important element of the Bill is the way in which Federal
and State Governments will cooperate in their legislation and tailor
legislation.
The other thing that it has done is that the important principle of
promoting agreements is given full recognition so that if we are to
promote agreements we have to accept that agreements should be given
primacy over awards, whether Federal or State. So the two key elements
of this Bill are, firstly, a very positive attempt to restore cooperative
relationships. A reversal of the period of intense conflict brought
about 1992 legislation which was a direct response to requests from
trade unions - legislation which was unprecedented given that the relevant
provision had been in place since 1904 at the very inception of a Federal
arbitration system. It was quite astonishing legislation. [57]
The Chamber of Commerce and Industry of Western Australia also explained
the critical need, met by Section 152, of allowing small unincorporated
employers access to agreements:
Mr McCarthy - Workplace agreements under the Federal Bill
are restricted to constitutional corporations. Currently, a Federal
award can issue overriding State awards and State agreements through
the conciliation and arbitration powers. If the Bill issues, then
corporations can get workplace agreements whereas others cannot. We
will have Federal awards issuing, albeit with more scrutiny and care
than at present, and small employers disadvantaged.
I can take the example of one particular industry - a large industry
in Western Australia, the agricultural industry - and alert you to
the proportion of union members in that sector. Of a labour force
of 21,526 - these are statistics from the ABBS; I can get the official
source, if you like - the number of union members is 737. That is
3.42 per cent of the workforce.
So, in that sector, which has a large proportion of non-incorporated
bodies, you have the prospect of a union, as a registered organisation,
getting a Federal award, notwithstanding the fact that it only has 3.42
per cent of the workforce as union members, that Federal award applying
to all employers and employees who are respondents to that award, and
the non-incorporated bodies then not having the opportunity to get individual
agreements - which may be highly desired by the employee and the employer
- because State agreements will not override Federal awards in the absence
of the Section 152 that is proposed in this Bill. So what you have,
in the absence of 152, is a trap that employers - particularly smaller,
non-incorporated employers - get into and cannot get out of. [58]
(b) The implications for the Australian Economy
Very little was put by the union movement in evidence to the Committee
on this Term of Reference. The ACTU did not elaborate on their written
submission on the economic impact of the Workplace Relations and
Other Legislation Amendment Bill.
Many employer submissions however, did focus on the critical need for
further labour market reform and the economic necessities for this.
An economist from the Chamber of Commerce and Industry of Western Australia
in evidence to the Commission, explained:
Ms Cusworth - The labour market reform process which this Bill
is a very important part of is itself only a part of an ongoing process
of micro-economic reform which has been pursued across Australia for
a number of years by Governments of various political persuasions, and
at various levels of Government. Labour market deregulation is probably
the most important of all of that micro-economic reform agenda. It must
be seen not as an end in itself but primarily as a means to an end.
The objectives of the whole process are to enhance productivity growth
and hence to secure rising living standards for the Australian community
as a whole and to assist in reducing the still unacceptable high levels
of unemployment which persist across Australia. [59]
This position was equally supported by the Business Council of Australia
in evidence:
The Business Council is seeking reform of the industrial relations
system to promote and facilitate the sorts of employer relations that
are the best way of improving competitiveness. What we are talking about
is the high productivity, high wage route of harnessing the competencies,
the ideas and the commitment of all the people in an enterprise to pursue
customer needs in the best way possible. This requires an industrial
relations framework which is decentralised and flexible but subject
to a basic safety net and hence conducive to enterprises and their employees
working out effective and cooperative arrangements that balance the
needs of both the business and the people that work in it. We are coming
to a position of supporting the Workplace Relations Bill because we
see it as a mechanism for achieving the sort of reform that we want.
It is not an ideological attachment to the issues but a practical one
of its being, in our view, an effective way of improving Australia's
living standards and, in particular, the level of unemployment which,
at 8½ per cent or so is, in our view, quite unacceptable. [60]
(c) Whether the provisions of the Workplace Relations
and Other Legislation Amendment Bill will fulfil Australia's
international obligations and whether the provisions of the Workplace
Relations and Other Legislation Amendment Bill will affect
Australia's international relations.
With respect to this Term of Reference there were competing opinions
put to the Committee. Submissions opposing the Workplace Relations
and Other Legislation Amendment Bill generally adopted the position
that in some part the Workplace Relations and Other Legislation Amendment
Bill was contrary to Australia's international obligations in that
it breached one or other of the ILO's conventions. Much of this argument
however, is flawed in that it is based on the assumption that this Workplace
Relations and Other Legislation Amendment Bill, in isolation, must
satisfy all of Australia's ILO's convention obligations.
As explained by the Department of Industrial Relations in its submission
to the Committee, it is quite appropriate that Australia meet its ILO
convention obligations through a combination of legislation both State
and Federal.
Evidence for the view that the Workplace Relations and Other Legislation
Amendment Bill is not contrary to Australia's international obligations
was provided by a number of organisations including ACCI:
Senator Ferguson - Much was said in the ACTU's submission
about the ILO convention in relation to the promotion of collective
bargaining as one of our international obligations which must be met.
I suggested to them that perhaps there were other international obligations,
such as individual human rights and freedom of association, that needed
to be taken into consideration when determining whether or not the
legislation fulfilled their obligations. Have you any further comments
to make on the issue of the promotion of collective bargaining?
Mr Noakes - I did not hear the ACTU remarks this morning,
but I have had an opportunity to read their submission. I think it
is incorrect in a number of respects on these issues. I said in my
opening remarks that, in my view, the criticisms made of the Workplace
Relations and Other Legislation Amendment Bill in that sense were
misplaced. Conventions 87 and 98 are the principal ones which Australia
has ratified and is bound to observe. The appropriate article of convention
98, which is the most important one, states:
Measures appropriate to national conditions shall be taken, where
necessary, to encourage and promote the full development and utilisation
of machinery for voluntary negotiation between employers and employers'
organisations and workers' organisations, with a view to the regulation
of terms and conditions of employment by means of collective agreements.
That needs to be taken in the context of the system which is in place.
It is incorrect to attempt, as the ACTU submission does, to apply
criticisms made of the Employment Contracts Act in New Zealand to
our present system and our proposed new system.
This Workplace Relations and Other Legislation Amendment Bill,
in my view - and I speak as a member of the Committee which oversees
this convention within the ILO - puts a greater emphasis on collective
agreements than it does on individual agreements and on the whole collective
process through awards and certified agreements. So it is not possible
to say - which it might be possible to say about the New Zealand legislation
- that collective and individual arrangements are put on an equal footing.
I do not believe that they are put on an equal footing in the provisions
of this Workplace Relations and Other Legislation Amendment Bill.
In any case, the interpretation of these provisions is a rather difficult
business and it does require, as I have said, a study of the total system
rather than a simple extrapolation of one part of it. [61]
What is clear from a number of submissions on this point is that there
are also doubts about Australia's existing Industrial Relations Act
1988 on this same question and there were also doubts about Australia's
previous industrial relations legislation.
(d) The effect of similar provisions in other countries
It is not possible to respond to this Term of Reference with any accuracy
given there is no directly comparable set of industrial relations provisions
operating in any other country.
Parties both for and against the Workplace Relations and Other Legislation
Amendment Bill drew parallels with the United Kingdom, New Zealand
and the United States of America. However, none of these countries have
the same combination of awards by the established AIRC as a safety net
underpinning a choice of individual or collective agreements as is proposed
by this Workplace Relations and Other Legislation Amendment Bill.
Arguments that the Workplace Relations and Other Legislation Amendment
Bill promotes a system like New Zealand ignore the fact that this
Workplace Relations and Other Legislation Amendment Bill maintains
the awards system which was abolished in New Zealand. Secondly, the
Workplace Relations and Other Legislation Amendment Bill provides
for compulsory arbitration which again was abolished in New Zealand.
Similarly, any comparison between the industrial relations system proposed
by this Workplace Relations and Other Legislation Amendment Bill
with that currently operating in the United States of America ignores
the continued retention of the Australian Industrial Relations Commission
and the continued existence of the award system under this Workplace
Relations and Other Legislation Amendment Bill.
Mr John - The Bill advances an industrial relations systems
that, while evolving, continues the connections with Australia's industrial
traditions. Some, even amongst VECCI's membership, would argue, and
argue strongly, that it does this to a greater degree than is required
because of what is the critical importance of allowing businesses
to gain access to a system of industrial regulation that is fair,
yet will produce the competitive performance that must be achieved
for Australia and Australians to prosper. The Bill does not abolish
the award system. The Bill is not comparable to the New Zealand Employment
Contracts Act.
The Bill does not allow for the introduction into Australia of United
States-style bargaining. The Australian Industrial Relations Commission
is continued in existence; its role and influence continue to be a
major force in determining standards under which thousands of Australians
will work. No other country in the world has such an institution.
The Bill continues to recognise and respect the role of trade unions
in the operations of the industrial relations system that it creates.
Australian unions continue to have a more advantageous position than
that that is accorded to New Zealand unions, for instance, under the
Employment Contracts Act or US unions under various legislative provisions
in that country.
The Bill retains a far more comprehensive set of minimum standards
covering wages and conditions of employment than that which applies
in either the US or New Zealand. In what for many is the most important
area, wages, equivalent outcomes to those available under the relevant
award are guaranteed. Even if an award does not apply in a particular
area, the Bill creates a means of deeming the application of an appropriate
one so that employees are able to access the basic guarantee that the
Bill acknowledges.” [62]
It was submitted that individual agreements overseas have led to low
wage outcomes. This ignores the provisions of s.170XF, 170XG, 170XP,
170XQ, 170XW and 170XX which all provide that as a minimum for any type
of employee under an agreement, be the individual a full time or part
time employee, a piece worker, casual, junior, trainee or apprentice
that as a minimum condition of employment, their wages under any agreement
will be no less than the wages that would have been earned over the
same period under the award.
Similarly, when looking at any international experience it must be
remembered that this Workplace Relations and Other Legislation Amendment
Bill provides further minimum conditions for any employee entering
into an agreement as prescribed in Part VIE -Minimum Conditions
of Employment for Employees under Agreements (Page 155 of the Workplace
Relations and Other Legislation Amendment Bill) of four weeks of
recreation leave with pay, no less than 12 days of personal carer's
leave with pay, no less than 52 weeks of parental leave or adoption
leave without pay after 12 months continuous service, long service leave
on terms and conditions, no less than those that would have applied,
equal pay for work of equal value without discrimination on the grounds
of sex and payment for jury service.
This was clarified in evidence:
Senator Crane - Thank you for clearing up that point. There
is one last point that I want to raise on this, one that I have raised
a number of times during the hearing. I would like to hear the department's
view on this. It relates to - within the allowable matters - the responsibility
of the Commission and Section 89A(2)(b) and onwards, which refers
to ordinary time hours of work. Subsection 2(c) refers to rates of
pay generally while subsection 2(d) refers to piece rates, tallies,
et cetera. I will not read it all out because I am sure you are more
familiar with it than I am, and everybody at this table has heard
it a few times.
The point I am coming to relates to the underpinning of the various
methods of employment provided in this Bill by those particular clauses
from the point of view of wages or payment. We then go to 170LG, minimum
conditions, which states:
For the purpose of this Part, the minimum conditions are those
set out in Part VIE.
Employees under an agreement are entitled to wages over a period
no less than the wages that would have been earned over the period
under the award.
Then it goes on and deals with a number of sections - 170XF, 170XG,
et cetera, which I will not go through. But it refers to pieceworkers,
casual employers, casual pieceworkers, et cetera. As far as I am aware,
looking at this particular Bill and each component of employment,
you go back to the underpinning of what they will be paid and back
to those clauses there, which are set by the Commission in terms of
negotiating or coming to that particular position.
I just wanted to get confirmation from you regarding my understanding
of the provisions as to setting of pay. Whether it be a casual workers,
a piece worker, somebody employed under an agreement, a certified
agreement, et cetera, it has to come back to those standards that
are set to the relevant award.
Mr Stewart-Crompton - This is correct, Senator.” [63]
(e) Extent to which the proposed legislation impacts on the national
skills accreditation, traineeships, apprenticeship system and vocational
education systems, and whether State legislation will be complimentary
to the Federal Act.
The Workplace Relations and Other Legislation Amendment Bill
provides for new arrangements for trainee, apprentices and vocational
placements and retains junior rates of pay in awards.
Provisions within the Workplace Relations and Other Legislation
Amendment Bill will promote the new Modern Australian Apprenticeship
and Traineeship System (MAATS) by allowing, through either awards or
agreements, an appropriate rate of pay derived from awards consistent
with the mix of training time and productive work. This was highlighted
by a document tabled during the hearings which, in part, stated:
… for example, if the award apprenticeship pays $250 a week
and the MAATS apprenticeship involves 10 per cent less time in productive
work, then the minimum pay under a workplace agreement would be $255
a week -- $250 x 0.90
And if the MAATS apprenticeship involved 10 per cent more time in
productive work, the minimum pay would be $275 a week -- $250 x 1.10.
[64]
The basis for these wage arrangements are existing award rates including
the National Training Wage Award. Recent announcements by the Minister
for Vocational Education and Training, Dr Kemp of a wage guarantee for
apprentices and trainees under Agreements such that they will receive
at least the current national training wage minimums whether they are
employed under Australian Workplace Agreements or Certified Agreements
confirms this.
While rates of pay for trainees in accredited training and apprenticeships
is derived from the applicable award rate, it is apparent that some
trainees or apprentices whose mix of training includes limited amounts
of time spent in productive work may be disadvantaged in terms of their
income. For this reason the Government has announced income support
arrangements to underpin MAATS trainees and apprentices. These support
arrangements are a wage subsidy which will ensure, regardless of the
training and productive work mix, the apprentice or trainee will receive
no less than the applicable National Training Wage Award rate of pay.
(f) Whether any proposed power exercised by the Australian Industrial
Relations Commission would be better exercised by another Federal Government
body and whether further consequential amendments will be needed to
other Acts to achieve this
This Term of Reference is the reverse of the next Term of Reference.
(g) Whether any proposed powers exercised by another Federal Government
body would be better exercised by the Australian Industrial Relations
Commission, and whether further consequential amendments will be needed
to other Acts to achieve this
The Workplace Relations and Other Legislation Amendment Bill
moves the role of the Industrial Relations Court of Australia to the
Federal Court. The bulk of work previously conducted by the Industrial
Relations Court was unfair dismissal proceedings and the Workplace
Relations and Other Legislation Amendment Bill envisages the majority
of these will now be dealt with by the Australian Industrial Relations
Commission. This is entirely appropriate as there is general support
from all parties for the Commission be the principal body to arbitrate
on unfair dismissal matters. The Commission's power and functions will
be enhanced to allow it to deal with the majority of unfair dismissal
matters.
Currently there are duplicate remedies with respect to sex discrimination
in employment. The Workplace Relations and Other Legislation Amendment
Bill will repeal these “equal pay provisions of the current
Act and complaints on this basis will be able to be pursued under the
Sex Discrimination Act 1984.
(h) The impact on small business of the proposed legislation and
extent to which the proposed institutional arrangements provide adequate
support for small business in dealing with industrial matters.
Organisations representing small business were strongly in favour of
the Workplace Relations and Other Legislation Amendment Bill.
The majority of all employer organisations making submissions and providing
evidence to the Committee identified that the bulk of their membership
represented small business.
ACCI having explained to the Committee their strong support for the
Workplace Relations and Other Legislation Amendment Bill commented:
The submission we have made is supported, as is indicated, by virtually
every major employer organisation in this country. So far as ACCI
is concerned, that is most of the organisations listed in our submission,
we have in excess of 350,000 employers represented through our organisations.
90% of those employers are small business. Every survey we have done
shows 90% -
Mr Noakes - Small businesses under 20 - that is the figure we
have used. We probably represent a majority of the small businesses
in the country. As has been indicated they support the submission we
have made. [65]
By way of further example of the support by small business for the
Workplace Relations and Other Legislation Amendment Bill, the
submission by the Australian Retailers Association (Submission No. 512)
identifies at Page 2 of their submission that of their 12,000 members
throughout Australia, employing three quarters of the Australian retail
workforce, 11,500 of those members are small retailers employing less
than 20 people.
The support provided to small business through institutional arrangements
within the Workplace Relations and Other Legislation Amendment Bill
include:
(a) The requirement of the effects on the viability of a business
to be taken into account in any compensation order following an unfair
dismissal application - Section 170CH(7)(a).
(b) The amendments to the unfair dismissal provisions so that strict
conformance with formal procedural fairness is no longer a separate
requirement but included as only one aspect in a “fair go all
round” test. The discouragement of speculative claims by the
introduction of the $50 filing fee and the potential for costs to
be ordered for an employee who vexatiously pursued a claim that should
have been settled.
(c) The establishment of the Employment Advocate and the functions
prescribed in the Workplace Relations and Other Legislation Amendment
Bill under Section 83BB(b) to provide assistance and advice
especially to employers in small business about their rights and obligations
under the Act and providing advice to employers in connection with
AWAs about the relevant award and statutory entitlements and about
relevant provisions of the Act.
(i) The extent to which proposed budget cuts will reduce the capacity
of the AIRC to perform its role
Until the Government's budget is handed down no conclusion can reasonably
be made on this Term of Reference.
(j) Whether the Workplace Relations and Other Legislation
Amendment Bill as a whole or in part is constitutional
Firstly it is not uncommon for legislation at some point in its life
to face a challenge in the High Court on the basis of its constitutionality.
In fact, the current Industrial Relations Act more specifically the
amendments made by the Industrial Relations Reform Act 1993 are currently
the subject of a challenge by the States in the High Court on the question
of its constitutionality.
In our view, the observation made by the ACTU in their submission is
correct, at Paragraph 376 at Page 104 of that submission that:
It is not possible for the ACTU or any other party making submissions
to the Inquiry or for the Senate itself to reach a conclusion about
constitutionality, this is of course a matter for the High Court of
Australia to determine.
Notwithstanding this observation the ACTU argued in its submission
that there remains doubt about the constitutionality of some aspects
of the Workplace Relations and Other Legislation Amendment Bill.
A number of academics and lawyers also questioned the constitutional
validity of some aspects of the Workplace Relations and Other Legislation
Amendment Bill although their position on this is not unanimous,
for example:
Senator Foreshaw - Can I take you to a couple of matters that
are not dealt with specifically in your submission. I would appreciate
your comments on them. The current Act prescribes the definition of
an industrial dispute --it has essentially been that definition for
many years--that is, it is about matters pertaining to the relationship
between employers and employees, and there are some other comments
as well. From my reading of the proposed Workplace Relations and
Other Legislation Amendment Bill, the definition of industrial
dispute is not actually changed. However, in relation to proposed
Section 89A--this is the section where the number of what are known
as allowable items for the purposes of awards will be reduced to 18--after
18 months any additional matters or clauses that are in awards that
do not relate to any of those matters will automatically be removed.
The first point I wanted to get your comment on, both in a legal
sense and in a more general sense, is the impact this proposed section
will have upon industrial relations and industrial disputation in
the future. Proposed Section 89A, which says:
For the following purposes, an industrial dispute is taken to
include only matters covered by subsections (20 and (3)--
and then those 18 matters. Is this provision--which, by legislation,
limits what the scope of an industrial dispute can be--valid or constitutional?
Prof McCallum--The constitutional power, the labour power, allows
the Government to establish machinery to prevent and settle interstate
labour disputes by conciliation and arbitration. It gives the parliament
leeway. The parliament created compulsory arbitration. It could have
created only voluntary arbitration. It could content itself with only
conciliation. The Government can, or the Parliament can if it so chooses,
limit the powers of the Commission to settle only specified industrial
disputes, which is in effect what Section 89A does. I see no difficulty
in that provision being constitutionally valid.” [66]
Similarly, a number of submissions argued that the constitutional question
is being pursued simply to create a climate of uncertainty but that
this is insufficient reason to block the passage of the Workplace
Relations and Other Legislation Amendment Bill, for example, as
explained by ACCI:
I would simply make the observation that, if all Federal Labor legislation
about which there had been a suggestion of constitutional doubt had
not been proceeded with for that reason, then there would be no Federal
Labor legislation at all. Every substantial piece of legislation has
been challenged and this is an inescapable fact of life under our constitution
and our Federal system. Putting that aside, we do believe that the Workplace
Relations and Other Legislation Amendment Bill is soundly based
in a constitutional sense, and we will elaborate on that if the Committee
wishes. [67]
In the circumstance the contest of opinion cannot be resolved by this
Committee. Consequently, there is the view that the question must be
resolved in favour of the submission made by the Department at Page
182 indicating that the Workplace Relations and Other Legislation
Amendment Bill had been “developed in close consultation with
the Attorney General's Department”. And further that “the
Department notes that the Secretary to the Attorney General's Department
has advised the Committee that it has no concerns that the Workplace
Relations and Other Legislation Amendment Bill is unconstitutional”.
(k) Extent to which State legislation on Unfair Dismissals compliments
or will compliment the proposed Federal Act
The Workplace Relations and Other Legislation Amendment Bill
approaches unfair dismissal in a manner consistent with the approach
taken in most State Industrial Commission jurisdictions. The Workplace
Relations and Other Legislation Amendment Bill envisages that the
Australian Industrial Relations Commission will only deal with dismissals
in the traditional Federal sphere and not override State legislation
providing remedies for State employees pursuing unfair dismissal claims.
The Workplace Relations and Other Legislation Amendment Bill
envisages that the Federal and State systems will operate in a complimentary
but independent manner.
To allow coverage of Federal award or agreement, employees without
reliance on the external affairs power, the Workplace Relations and
Other Legislation Amendment Bill provides for the exercise by the
Australian Industrial Relations Commission and Federal Court of Australia
of powers conferred by the State. States have been asked to support
this by complimentary legislation conferring such powers upon the Federal
tribunal. As explained in the Department's submission at Page 156 the
communique from the Labor Minister's meeting noted:
In particular, State and Territory Ministers agreed to consider favourably,
complimentary legislation in the areas of unfair dismissals, voluntary
unionism and agreements.
Ministers reported a more practical scheme for unfair dismissals
with greater national consistency whilst ensuring general confines
with the international standards.
In summary, State legislation will adequately compliment the proposed
unfair dismissal provisions within the Workplace Relations and Other
Legislation Amendment Bill.
(l) Whether the provisions of the Workplace Relations
and Other Legislation Amendment Bill provide a fair balance
between the rights of employers and organisations of employers and the
rights of workers and unions
The Opposition Senators argue that the provisions in the Workplace
Relations and Other Legislation Amendment Bill making available
the options to enter into Australian Workplace Agreements by individual
employees in a number of ways prejudices the rights of employees or
was imbalanced in favour of employers.
Throughout the submissions, and evidence before the Committee, the
provisions of the Workplace Relations and Other Legislation Amendment
Bill safeguarding employees' rights with respect to Australian Workplace
Agreements were identified.
Firstly, the provisions in the Workplace Relations and Other Legislation
Amendment Bill that prescribe the minimum conditions for Australian
Workplace Agreements:
- Take home pay no less than the wages that would have been payable
under the award - Section 170XF, 170XG, 170XT, 170XQ, 170XW and
170XX.
- Four week recreational leave with pay - Section 170XI and 170XS.
- At least 12 days of personal carer's leave with pay if the employee
is sick or caring for a family member or absent because of death of
a member of the family - Section 170XJ and 170XS.
- At least 52 weeks unpaid parental or adoption leave - Section
170XK and 170XS.
- Long Service Leave on terms and conditions no less than would have
otherwise applied - Section 170XL and 170XS.
- Equal pay for work of equal value without discriminating on the
grounds of sex - Section 170XM and 170XT.
- Paid jury service - Section 170XN and 170XS.
The Opposition Senators argue that without vetting of the agreement
entered into, employees may not receive these minimum entitlements.
However, this overlooks the fact that the Workplace Relations and
Other Legislation Amendment Bill expressly provides in Section
170VG that the employer must ensure that the AWA includes conditions
on all the relevant matters dealt with by the minimum conditions (these
are set out above) and that the conditions in the Australian Workplace
Agreements are not less favourable to the employee than the minimum
conditions and the AWA identifies the relevant award for the purposes
of the minimum conditions.
The Workplace Relations and Other Legislation Amendment Bill
provides a further safeguard specifically in Section 170VG (3) that
if the employer breaches this provision then the Australian Workplace
Agreement is taken to include a term to the effect that the employee
is entitled to the minimum conditions in any event.
In effect, the Workplace Relations and Other Legislation Amendment
Bill provides that regardless of the content of the Australian Workplace
Agreement, the employee is always entitled to the minimum conditions
of the existing award take home pay and the other minimums identified
above.
As explained in the submission by the Chamber of Commerce and Industry
of Western Australia (Submission No 409 at Page 12):
The Workplace Relations and Other Legislation Amendment Bill
will allow employers that are corporations covered by awards to enter
into Australian Workplace Agreements (AWAs) directly with their employees.
This process has additional safeguards for employees compared to employing
someone under an award, as demonstrated in the following chart:
| Under an Award |
Under an Australian Workplace Agreement |
| When an employee accepts a job the Contract of Employment
may be verbal or written. |
An AWA must be in writing (170VF), signed and witnessed
by the employee and employer (170VO(1)). |
| No obligation on the employer to identify the relevant
Award.
No obligation for the Contract of Employment to contain any particular
provision.
|
The employer must ensure the AWA includes the minimum
conditions and its conditions are no less favourable than these
and the AWA must identify the relevant Award for the purposes of
the minimum conditions (170VG(1)), and the AWA must include a disputes
procedure. |
| No obligation to inform an employee of any of their
rights, Award or otherwise. |
The employer must give the employee an information
statement (170VO(b)(iii)) which covers the statutory minimum entitlements,
occupational health and safety law and the services of the Employment
Advocate. |
| No right for the employee to appoint a bargaining agent.
No obligation on employer to recognise an agent.
|
An employee may appoint a person as their bargaining
agent and the employer must recognise this agent. (170VK(1) and
(2). |
| If Contract of Employment is written it does not have
to be filed anywhere. |
An AWA does not operate unless it is filed (170VJ(1))
with the Employment Advocate. The employer must provide a declaration
that the AWA complies with various provisions of the legislation.
(170VO(1)(v)). |
| No additional protection for minors. |
If the employee is a minor a parent or legal guardian
must give written consent to the employee making the AWA (170VO). |
| Even if Contract of Employment is written there is
no obligation to give employee a copy. |
After receiving a filing receipt the employer must
give the employee a copy of the receipt and of the AWA (170WH). |
The Opposition Senators' report also echoes the concerns that employees
will be forced into making agreements with their employer. These concerns
however are addressed in detail by provisions of the Workplace Relations
and Other Legislation Amendment Bill such as Section 170WG
that prohibits an employer applying duress to an employee in connection
with an AWA and creates an offence for an employer to knowingly make
a false or misleading statement to persuade an employee to enter into
an AWA. Further Section 170VX provides that a person who suffers
loss or damage as a result of entering into an AWA under duress or as
a result of relying on misleading statements can recover that loss or
damage and that under Section 170BY the Court may in the circumstances,
set aside or vary an AWA that was made in these circumstances.
Unfortunately, many of the submissions and evidence put to the Committee
raising these concerns failed to recognise that these safeguards are
already contained within the Workplace Relations and Other Legislation
Amendment Bill. As observed by Professor J E Isaac from the Department
of Management and Industrial Relations, University of Melbourne (previously
a Deputy President of the Australian Industrial Relations Commission)
:
16. Under the proposed legislation, workers covered by AWA will be
protected by the safety net of the relevant award, which will contain
substantially the same range of items as currently apply in most awards.
To that extent the position is in essence not different from the present
informal arrangement between employer and employee. [68]
Concerns about employees situations also acknowledge the fact that
those employees, members of the unions will have access to those unions
for guidance and assistance and the freedom of association provisions
in the Workplace Relations and Other Legislation Amendment Bill
strengthen these rights. The Workplace Relations and Other Legislation
Amendment Bill however goes further in the establishment of the
Employment Advocate whose functions under Section 83BB are to
provide assistance and advice to employees about their rights and obligations
and to provide advice to employees in connection with AWAs, about the
relevant awards and statutory entitlements and about relevant provisions
of the Act.
The Employment Advocate also has a role to investigate alleged breaches
of AWAs, Section 83BB(e) and provide free legal representation
to employees pursuing breaches of AWAs, Section 83BB(g).
Senator Childs - I would put it to you that the employee has
rather second-rate advice because it does not cover the most important
issues in a fair negotiation between equals.
Mr Noakes - Senator, in very many instances the employee will
have much more information and advice that he or she has now.
Mr Noakes - Even if they are not in unions. Seventy-five per
cent of them in the private sector are not in unions at the moment and
they would not have access to any advice unless they pick up the phone
and ring the award information service, and they will still be able
to do that. But the provisions of the Workplace Relations and Other
Legislation Amendment Bill will give them more protection and more
advice in that respect than they have now, particularly if they are
not union members. [69]
On the question of the procedural operation of the Employment Advocate
we draw the Minister's attention to the comments of Professor McCallum
and suggest these issues are worthy of further investigation.
Professor McCallum -It is the last one, making the Employment
Advocate truly independent. I would suggest some amendments. Firstly,
that the Office of the Employment Advocate be appointed for a minimum
of a five year term and not up to a five year term, with the power
of renewal. Secondly, I would suggest that the Minister or the Government
be required to go through some form of consultation. As the Bill presently
stands, there are no designations of skill levels for the Office of
the Employment Advocate. There is no requirement that the Office of
the Employment Advocate have any skills in industrial relations or,
especially speaking, as a lawyer. There is no requirement that this
head of a prosecutorial agency should have adequate legal qualifications.
May I suggest that the Committee give some thought to this.
Thirdly, I would also prefer the office to be independent and not subject
to directions from the Minister. At the moment, the Minister may direct
the Office of the Employment Advocate in relation to any of its functions.
If this was unacceptable to the Government I see no difficulty in a
review council being established; a council with community and other
neutral representatives which would have Government members on it, obviously;
which could, as a review council, act as a filter between the political
process and the Office of the Employment Advocate; and which could give
appropriate directions. May I suggest to you that I think that the work
of the Office of the Employment Advocate is going to be extraordinarily
difficult - particularly as union membership declines in this country
- and that it is imperative that, if we wish to protect low paid workers,
more thought is given to the nature of this office.” [70]
RIGHT OF ENTRY
The majority Opposition Senators' report accepts the complaints raised
by unions in their submissions that the Right of Entry provisions in
the Workplace Relations and Other Legislation Amendment Bill
disadvantage unions and employees. The unions argued that the provisions
of the Workplace Relations and Other Legislation Amendment Bill
Section 286 that entitles a union to entry an employer's premises
subject to receiving a written invitation from a union member to inspect
records or view work or interview employees who are members or who are
eligible to be members of the union and Section 286A which is
a similar provision entitling the union with invitation from a union
member to enter premises and hold discussion with employees will require
the union to identify the names of its members to the employer and thereby
allow discrimination to occur against those members and frustrate the
union's access to employers' premises.
This argument was repeatedly put to the Committee by unions who chose
not to refer to other sections of the Workplace Relations and Other
Legislation Amendment Bill specifically Section 291A that
allows the union to take such written invitation from their members
to the Registrar of the Australian Industrial Relations Commission and
he will then issue a certificate that will allow the union entry to
the premises and express provisions in that Section that the certificate
must not identify the employees making the request. This safeguard was
continually overlooked by the unions in their submissions and evidence.
Examples of this misconstruing of the provisions of the Workplace
Relations and Other Legislation Amendment Bill are for instance,
in the ACTU evidence:
The seventh major area of concern, and a very important issue, is limitation
on union's right of entry. Under the legislation requiring individual
- I stress individual - members to invite, in writing, union on to the
employers' premises. This will obviously have the effect of limiting,
if not eliminating, the rights of unions to go about their business
in representing their workers. [71]
The majority of the union's written submissions equally omitted to
mention Section 291A of the Workplace Relations and Other
Legislation Amendment Bill. An example of this is the CFMEU (Construction
and General Division) submission No. 529 which, at Pages 11 and 12 go
to some length to compare the existing Section 286 with the proposed
Section 286 and 286A and expressed concerns about the requirement
for written invitation and at Point 4:
Union is opposed to providing copies of the written invitation from
employees to employers when requested by the employer. This would
undoubtedly lead to the victimisation of many of our members.
The same omission of relevant parts of the Workplace Relations and
Other Legislation Amendment Bill is found in Submission Nos. 1290,
437, 575, 774, 1001, 1249 and 1251 all made on behalf of various branches
of the CFMEU.
Lack of knowledge of the Workplace Relations and Other Legislation
Amendment Bill in part may explain this unwarranted concern about
Right of Entry for example:
Senator Crane - In your submission, Mr Seymour, you refer
to `the elimination of the right of entry of union officials to the
workplace'. Could I just draw your attention to Page 201 of the Workplace
Relations and Other Legislation Amendment Bill, under Section
286, and also Page 151, under Section 291A. While acknowledging
there are certainly some changes in the rules in terms of the right
for unions to go into the workplace, there certainly is no elimination
of the rights of unions to go into the workplace. Could you enlarge
on what you mean? That is an absolute statement as if the Workplace
Relations and Other Legislation Amendment Bill says you can no
longer go in there.
Mr Seymour - I am at a disadvantage. I just got off a ship
the other day. I have been away for eight weeks and I really have
not had the time to read the whole Workplace Relations and Other
Legislation Amendment Bill. As I understand -
Senator Crane - If that is the case, could I just draw your
attention to those two particular pages and give you the opportunity
to have a look at them in your own time. You might want to come back
to us. But in doing that, I just make the point that it certainly
does not eliminate
Senator Crane - It alters. I do not even know if it would
restrict. It means that two or more employees have to seek to make
that happen. In one set of circumstances it is done one way and in
another set of circumstances it is done another way. But just have
a look at that and then maybe come back to us on it.
Mr Seymour - We have members in this country where there is
only one in a workplace. So what happens there?
Senator Crane - I just wanted to draw that to your attention.
I think I will just leave it at that. Thanks, Madam Chair.” [72]
CONVENIENTLY BELONG
The Opposition Senators' report concentrates on concerns expressed
by some employers in their submissions about the repeal of the “conveniently
belong” rule which currently prohibits the registration of new
unions where there is currently a union having coverage of particular
employees.
The Opposition Senators' report seeks to emphasise some employers'
concerns with respect to this and firstly mentions the submissions made
on behalf of the Victorian Automobile Chamber of Commerce.
Careful reading of the Hansard indicates that the expression of concerns
by the Victorian Automobile Chamber of Commerce is associated solely
with their desire as an employer organisation to ensure they have the
right to represent their members in the Industrial Relations Commission.
This is clarified in final questioning by the Chair of Mr Redfern as
follows:
Chair -I have some final questions Mr Redfern, I just want
to clarify the position that you have previously discussed with members
of the Committee with respect to `conveniently belong'. In response
to one question, you said you accepted `conveniently belong' then
in another discussion you raised concerns and said you thought it
was a matter that the Government should consider closely. Could you
clarify for us precisely what position you believe the Government
should take with respect to this issue?
Mr Redfern -Perhaps our organisation - again it is difficult
for employer organisations rather than a trade union in terms of that
`conveniently belong' issue and I appreciate that it may have a greater
significance - it is not concerned so much at the repeal of `conveniently
belong' as we are but being able to preserve a position as a representative
organisation. We have raised this with the Minister. We have indicated
that we have a preference for seeing the `conveniently belong' rule
remain on the basis on the basis that we want to continue to be able
to adequately represent out membership. The Minister has given us
an indication that there would be no erosion - I think that was picked
up by Senator Crane - in terms of maintenance of rights for representation.
The thrust of our submission is that, while we accept with some reservations
the repeal of `conveniently belong' we do not want to see our representation
rights eroded in any way, shape or form.” [73]
In short the VACC do support the repeal of the `conveniently belong'
rule.
Similarly the Opposition Senators' report seeks to portray the Metal
Trades Industry Association as not supporting the repeal of `conveniently
belong'. However, the MTIA's Submission No. 1157 at Page 13 is unambiguous.
Accordingly, while we do not press for the rule to stay, the effect
of its abolition should be carefully monitored and, if necessary,
reviewed in the event the consequences are adverse for employers we
say this notwithstanding the proposals related to Section 118A.
On balance, the only parties voicing substantial objection to the repeal
of `conveniently belong' are those who would be subject to the competitive
forces this will create. These parties are of course existing registered
unions.
By contrast, associations of employees who have not been able to become
registered unions because of the existence of the `conveniently belong'
rule are supportive of its repeal, for instance, the Victorian Principals
Association indicate their support for this aspect of the Workplace
Relations and Other Legislation Amendment Bill. [74]
WITHDRAWAL FROM AMALGAMATIONS
The Opposition Senators' report overlooks the provisions in the Workplace
Relations and Other Legislation Amendment Bill that provide the
ability for pre-existing unions to voluntarily withdrawal from previous
amalgamations.
These provisions contained within Division 7A being Section 253ZH
through to Section 253ZV are touched upon only briefly in the
Opposition Senators' report. Their failed to acknowledge that one of
the major union organisations in the country, the Labor Council of New
South Wales in its submission (No 1282) comments at Page 23:
… it is most likely that other provisions contained within the
Workplace Relations and Other Legislation Amendment Bill will
achieve the same objective by alternate means, eg, the provisions
relating to dis-amalgamation and the removal of the `conveniently
belong' test.
These two areas of amendments will reduce, if not remove, the monopoly
position of unions and lead to an increase in competition. This in
turn will result in unions offering additional services to members
and by necessitation, becoming more accountable, if this is not already
the case.
The Labor Council then clarified their position in evidence before
the Committee:
Mr Sams - Page 23 of our submission deals with registered organisations
under the heading “Autonomous Enterprise Branches”. It has
been brought to my attention that there may be an impression created
that the Labor Council of New South Wales supports the abolition of
the `conveniently belong' test. That could be interpreted by Paragraph
4 under the heading `Autonomous Enterprise Branches'. I wish to make
it very clear that the Labor Council's position is that it does not
support the abolition of the `conveniently belong' test. We do, however,
support the proposals in respect of the dis-amalgamation processes that
the legislation contained. [75]
This is confirmed further in questioning by Senator Crane who asked
for further clarification:
Mr Sams - We support an opportunity at the option of the unions
conducting democratically a dis-amalgamation post - 1991. [76]
The AWU-Queensland Branch also expressed no concern with the proposal
suggesting though a different voting proposal should be considered. [77]
REGISTERED ORGANISATIONS - INVESTIGATION BY THE REGISTRAR
The Opposition Senators' report failed to acknowledge that there was
support from one of the largest unions in Australia for those provisions
of the Workplace Relations and Other Legislation Amendment Bill
that expand the right for the Industrial Registrar to investigate registered
organisations.
The Australian Workers Union in their Submission No 1232 at Page 8
state:
On a positive note, this organisation applauds some sections of Schedule
15 of the Workplace Relations and Other Legislation Amendment Bill
relating to the Registrar's expanded rights to investigate registered
organisations, and their duty to provide more detailed financial records.
Specifically, Section 280A (Registrar may conduct other investigations)
and Section 280B (Investigations under Section 280 and 280A)
are, in our view, positive initiative that can only lead to increased
accountability of organisations and officials”.
SECONDARY BOYCOTT PROVISIONS
The provisions in the Workplace Relations and Other Legislation
Amendment Bill that would re-instate the pre-existing provisions
of the Trade Practices Act Section 45D and E which prohibit secondary
boycotts received strong support from all employers making submissions
to this Committee.
The principle of prohibiting secondary boycotts is accepted within
the provisions of the existing Industrial Relations Act 1988. However
amendments in 1993 restricted access and the speed of access to those
provisions which has been a source of frustration for employers. A stark
example was presented to the Committee of the economic damage that can
be caused by illegal industrial action in the case of E.P. Robinson
Pty Ltd who has sustained economic losses of approximately $1M
as a result of an industrial dispute. These losses occurred under the
existing Federal legislation:
Senator Chapman - Do you believe that the problems you have
experienced could have been dealt with more expeditiously had Sections
45D and E of Trades Practices Act still been in place?
Mr Robinson - Yes, certainly we believe that the ban on that
wool would have been taken away. If the union was challenged or had
sought their own legal advice that they could not do that - perhaps
that walk out would not have occurred and we would not have had to have
stood two people aside. [78]
The submission by the National Farmers Federation is indicative of
employer support for Section 45D and E being reinserted into
the Trade Practices Act. In their Submission No 1025 at Pages 22 - 25
a comprehensive explanation of the difficulties experienced and the
need for these amendments within the Workplace Relations and Other
Legislation Amendment Bill is set out.
The Chamber of Commerce and Industry of Western Australia gave a practical
example of the current legislation's faults:
Mr Bull - The common law rights that previously existed have
been fettered to such an extent that they are, again, virtually ineffective.
If an employee, or a union or any person interferes with the contractual
obligations of an employer, they can take no action unless they go
to the industrial commission to obtain a certificate. They would have
to wait at least three days before that certificate can be issued.
Those three days are not cumulative. For example, the national coal
stoppage we have today for 48 hours is immune from any action an employer
can take. He cannot go under secondary boycotts, because the three days
have not expired. He cannot take any action under industrial torts,
because it is not a 72 hour stoppage, it is only a 48 hour stoppage.
Next week the coal employees or the CFMEU can do exactly the same thing
again - have a 48 hour stoppage - and the employers can do nothing about
it. So what we have under the current legislation is the ability for
unions to take instant industrial action and the employer can do nothing
for three days; he has his hands tied behind his back. [79]
(m) Whether reporting mechanisms on the progress of Enterprise Bargaining
are adequate and might need to be improved in licence of Workplace
Relations and Other Legislation Amendment Bills.
Section 358A inserted by the Workplace Relations and Other
Legislation Amendment Bill requires the Minister to table in Parliament
a report three yearly on developments in bargaining and the making of
agreements. The three year period for such reports would allow surveying
of the parties to agreements and a greater frequency than this is likely
to jeopardise the validity of the data collected in such surveys for
the report. Such a period is also consistent with the increasingly extended
term of agreements struck by the parties. Reports of this nature compiled
for the Minister are also costly as identified by the Department for
instance, such a report for 1994 cost the taxpayer $800,000.
The Employment Advocate will also be able to provide annual statistical
information on AWAs and the Department itself will continue to monitor
agreements through its existing Formalised Workplace Agreements Database.
(n) The impact of the proposed legislation on the balance between
work and family responsibilities
A number of provisions of the Workplace Relations and Other Legislation
Amendment Bill are particularly favourable to assist employees to
reconcile the responsibilities of both their employment and their families.
This was acknowledged by representatives of the Working Womens Centre:
Senator Crane - I would like to raise a couple of issues in
terms of this Workplace Relations and Other Legislation Amendment
Bill. We always hear the emotional side of it come out about one
hour or 10 hours, and all this sort of stuff, but are you aware that
in the objects of the Act, under (i) it says:
`Assisting employees to balance their work and family responsibilities
effectively through the development of mutually beneficial work practices
with employers;'
`respecting and valuing the diversity of the work force by helping
to prevent and eliminate discrimination on the basis of race, colour,
sex, sexual preference, age, physical or mental disability, marital
status, family responsibilities, pregnancy, religion, political opinion,
national extraction or social origin'.
They have been put in the objects of the Act for the first time and
surely they go a long way to addressing a lot of the concerns that
you have raised.
Mrs Ridgway - Certainly, they do.
Senator Crane - The other one or two points I will mention
quickly, and Senator Chapman might follow these up. Firstly, are you
aware that this Act, while we have all this about casual or part-time
work, actually provides for permanent part-time work? Secondly, in
terms of the so-called secrecy, the employees or the employer, whether
they belong to a union or do not belong to a union organisation, can
appoint whoever they like as their bargaining agent and the only person
who cannot release information is the Employment Advocate. There is
nothing to stop the employees or the employer releasing the details.
Are you aware of that?
Mrs Ridgway - I am aware of that. I think for many women it
is quite a new process because they have relied on their union or
a collective to do so. Many women will say, `Who do I employ?' `Who
do I get to look at the contract or to help present the case for me?'
I think that there needs to be a lot of information about that.
Mrs Ridgway -Yes, they can.
The Opposition Senators' report also identifies that the Workplace
Relations and Other Legislation Amendment Bill in Section 89A(4)
removes the power for the Industrial Commission to limit the number
or proportion of employees that employers may employ in a particular
type of employment and remove the power to set maximum or minimum hours
of work for regular part-time employees.
The Opposition Senators' report echoes concerns raised by unions that
removal of minimum hours for part-time employees would be to the disadvantage
of those employees many of whom may be women. This view fails to recognise
that confusion was created by union submissions that argued that removing
the Commissions power to set minimum hours for part-time employees will
somehow allow employers absolute discretion to decide when a part-time
employee will work.
The two issues are separate as is explained by Professor Judith Sloan
from the National Institute of Labour Studies at Flinders University,
Professor Sloan -The second point is the deregulation of part-time
work. As you know there are provisions in there which prevent the Commission
from establishing ratio numbers of part-time workers and setting minimum
and maximum hours. I would make the point that, as I read it, there
is actually nothing to stop the Commission establishing processes whereby
hours can be varied. I know that these provisions are in response to
what I think has been an absolutely insidious aspect of the way the
system has worked to the benefit of full-time workers and at the expense
of part-time workers. So the attempt here is to push on very quickly
to get the kinds of part-time working arrangements that suit the part-time
workers as opposed to those which protect the full time workers. [81]
The same view was accepted by the Business Council of Australia:
Mr Winley - Much too, has been made in comments and
media reports of the Bill's proposal to remove the power of the Australian
Industrial Relations Commission to set maximum or minimum hours of
work for regular part time employees. It has been said that this amendment
will act particularly to the disadvantage of women by allowing employers
to alter their hours and patterns of work at will.
Of course, close reading of the actual amendment dictates that it
will do nothing of the kind. The amendment says only that the Commission
will not be able to make awards that set maximum and minimum hours
for regular part time employees. It does not say anything about the
processes for changing people's hours of work. That is something that,
presumably, awards will be able to cover if that is appropriate in
a particular industry.
More importantly, it is something that agreements can deal with.
It is certainly something that individual contracts of employment
deal with now. If someone works on a regular part time basis and there
is a process involved for changing the part time hours or else there
is a prohibition in changing part time hours, that will remain regardless
of this amendment to the Act, because all this amendment does is talk
about maximum and minimum hours.
So suggestions that the amendment proposed in the Bill will suddenly
lead to mayhem in changes of the individual hours of regular part time
employees seems to me to be based on a misreading of what the amendment
says and a failure to understand that the question of changing hours
and the processes for changing hours are, in fact, not affected by that
amendment.” [82]
Many awards impose a minimum number of hours for part-time employment,
often as many as at least 20 per week. At this threshold level, employees
are precluded from working one or two days (8 or 16 hours) per week.
Consequently, employees under these awards can only be employed on a
casual basis.
Senator Chapman - I just wanted to follow up the concern you
have expressed about the part-time work situation. Are you aware that
under the current legislation and industrial relations system, the
real problem is that there are restrictions on permanent part-time
work - a minimum number of hours in a number of awards and also only
a certain proportion of the work force allowed to be permanently part-time
employed. What in fact has happened is an explosion in casual part-time
work which does not allow for any of the protections and pro rata
benefits and so on for women. That sector has exploded from 17 to
24 per cent in recent years.
This legislation, by removing those restrictions will allow for permanent
part-time work to be established under agreements with hours specified
so that people will know what hours they are working and with pro
rata leave and all of the other benefits. This improves the situation
for women by allowing them certainty in relation to the nature of
the part-time work in which they will be employed.
Mrs Ridgway - I hope that does happen because it is what a
lot of women want but I still believe employers will see a role for
casual employees as well. It gives them a lot more flexibility in
stopping and starting and meeting their needs. For the women we see,
permanent part-time work with specified hours would be a wonderful
thing.
Senator Chapman - In fact the legislation, by allowing
that, will improve the situation. Whatever the situation is now it
can get better rather than worse.
Mrs Ridgway - If it does that, that is great.” [83]
It is notable that the unions' submissions rarely mentioned the provisions
of the Workplace Relations and Other Legislation Amendment Bill
that will prevent limits being placed on the proportion of employees
that an employer may employ in a particular type of employment.
The ACTU's own submission identified 52 Federal awards that have a
limit on the number of part-time employees that can be employed compared
to full-time employees. The ACTU's Attachment No. 4 to their submission
sets out a number of examples of these, for example:
- Clerks (Brewery) Consolidated Award 1985 - the maximum number of
part-time (including casuals and temporary employees) shall not exceed
10% of the total number of full-time employees.
- Federal Meat Industry Award 1981 - part-time employees shall not
exceed one for every three full-time employees.
- Hair Dressing and Beauty Industry (Australian Capital Territory)
Award 1985 - a maximum of one part-time employee for every three full-time
employees.
- Nursing Staff (Repatriation Hospitals) Australian Nursing Federation
Award 1991 - the number of part-time employees shall be limited so
that in no case shall the proportion of part-time employees exceed
25% of the workforce.
These restrictions on the part employment force employers to engage
persons on a casual basis instead. Casual employment as acknowledged
in many union submissions is of a less certain nature and less family
friendly because of this.
The Opposition Senators' report also fails to acknowledge that the
Workplace Relations and Other Legislation Amendment Bill provides
Carer's leave for the first time as a minimum condition for agreements
both Certified Agreements and Australian Workplace Agreements.
Senator Abetz - Are there any aspects of the proposed Workplace
Relations and Other Legislation Amendment Bill that you do support?
Mrs Ridgway - Yes. There are some good parts of the Workplace
Relations and Other Legislation Amendment Bill. In some ways,
if we move to contracts for women who are currently training and not
in the workplace, it will certainly free up the workplace for new
positions to appear rather than have people stuck in permanent positions
for a long time. I can see more career opportunities to move around
and better career paths for women. I see that as a plus in the Workplace
Relations and Other Legislation Amendment Bill.
I certainly was impressed to see the Carer's leave in there - to
have 12 days Carer's leave is an improvement on many awards at the
moment. So I thought that looked like a very good one.
Senator Abetz -So the Workplace Relations and Other Legislation
Amendment Bill will in fact provide better conditions than people
currently enjoy under awards. Is that what you are saying?
Mrs Ridgway - In the Carer's aspect, for some awards, definitely,
yes. [84]
Finally, it must be recognised that the Workplace Relations and
Other Legislation Amendment Bill by promoting more flexible awards
will give greater scope for employers and employees to reach agreement
on workplace arrangements that will cater for work and family needs.
(o) The impact of the proposed Workplace Relations and
Other Legislation Amendment Bill on Youth Employment and
Training
The main focus of the majority Opposition Senators' report in this
Term of Reference was that the Workplace Relations and Other Legislation
Amendment Bill will retain junior wage rates for employees under
awards as they currently exist.
There was a significant body of evidence provided that identified the
potentially disastrous impact of increasing junior wage rates on junior
employment levels. As outlined in the ACCI's submission (No 905) at
Page 17.
This is overwhelming evidence of the importance that a lower wage
for juniors plays in securing the entry of young people into the workforce.
This is particularly the case in for example, the retail industry,
the predominant employer of young people, which is more price sensitive
than other industries. It is essential that the Government be allowed
to legislate to preserve junior rates. If those amendments are defeated,
and employers are forced to pay adult rates to juniors the inevitable
result will be a very substantial drop in the numbers of young people
employed.
This potentially critical issue for junior employees was reinforced
by the submission made by the Australian Retailers Association (Submission
No 512) which notes at Page 3 that :
According to unpublished ABS figures retailing employs some 284,000
young people (46% of all 15-20 year olds in the Australian workforce).
and further at Page 7:
… ignoring the practical imperatives of the labour market and
the relative competitive advantage of older and young employees, will
place the jobs of large numbers of younger employees and potential
employees at risk.
As we have said in our media statements, around 220,000 junior jobs
could be in jeopardy. We justified this on the basis of the age breakup
set out earlier in this submission. Maybe some juniors would survive,
ie, those in the 19 and 20 year old groups (however, there is no guarantee
of that as they are typically 20% and 10% more expensive that 21 year
old and older employees), but from all our discussions with members,
those aged 18 and under in most cases simply would not be competitive
as older employees.
This stark and substantial evidence cannot be ignored. The Workplace
Relations and Other Legislation Amendment Bill, by retaining existing
junior award wage rates, will protect the employment of youth.
Footnotes
[55] Evidence pp 80
[56] Evidence pp 2018
[57] Evidence pp 1971
[58] Evidence pp 1368
[59] Evidence pp 1359
[60] Evidence pp 1935
[61] Evidence pp 77
[62] Evidence pp 2013
[63] Evidence pp 2216 - 2215
[64] 'Wage arrangements for young people
in training', Commonwealth Minister for Industrial Relations, June,
1996
[65] Evidence pp 78
[66] Evidence pp 896
[67] Evidence pp 73
[68] Submission by Professor J E Isaac Canberra,
1st August 1996, pp 5
[69] Evidence pp 100
[70] Evidence pp 890
[71] Evidence pp 35
[72] Evidence pp 641 - 642
[73] Evidence pp 152
[74] Submissions No. 71, pp 155
[75] Evidence pp 799
[76] Evidence pp 809
[77] Submission No. 1139, pp 28
[78] Evidence pp 515
[79] Evidence pp 1372
[80] Evidence pp 287 - 288
[81] Evidence pp 1761
[82] Evidence pp 1935
[83] Evidence pp 290
[84] Evidence pp 284
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