Chapter 7 - Schedule 6 - Awards
7.1
This chapter deals with proposed amendments to
provisions of the WR Act relating to awards. Awards are orders made by the
Commission in settlement of industrial disputes.
Outline of proposed amendments
7.2
Schedule 6 of the Bill includes:
- amendments to regulate processes prior to the making of an award
(logs of claims);
- amendments relating to the contents of awards (allowable award
matters, agreement encouragement clauses and objectionable provisions);
- new provisions requiring the Commission to simplify existing
awards, and requiring the Registrar to review obsolete awards;
-
an amendment to limit the application of safety net wage
increases made by the Commission; and
- amendments to prevent employers covered by State industrial arrangements
from being ‘roped in’ to federal awards.
Provisions to regulate the log of claims process
7.3
The new provision proposed in item 21 of
Schedule 6 prevents the Commission from finding that an industrial dispute
exists for the purposes of exercising its dispute settlement functions (ie
arbitrating and making a binding award), where the dispute is based on a log of
claims and:
- the log of claims was not accompanied by an information sheet
(proposed paragraph 101A(a));
- the dispute was notified under the Act less than 28 days after
the log was served (proposed paragraph 101A(b));
- each party to the dispute was not properly notified of the time
and place for proceedings at least 28 days before the proceedings (proposed
paragraph 101A(c));
- the log contained demands for terms and conditions that would
contravene the freedom of association provisions of the Act (proposed
subparagraph 101A(d)(i));
- the log contained demands for ‘objectionable provisions’ to be
included in an award or agreement (proposed subparagraph 101A(d)(ii)); or
- the log contains claims for terms and conditions that do not
pertain to the employment relationship (proposed subparagraph 101A(d)(iii)).
Evidence
7.4
The Department submitted:
Over the years, the practice of serving ‘logs of claims’ has
developed in the federal industrial sphere to provide evidence of the existence
of an industrial dispute. Windeyer J described this practice in Ex parte
Professional Engineers’ Association: ‘The dispute here is a ‘paper
dispute’. To permit the creation of a malady so that a particular brand of
physic may be administered must still seem to some people a strange way to cure
the ills and ensure the health of the body politic. But the expansive
expositions by this Court of the meaning and effect of par. (xxxv.)...have
brought a great part of the Australian economy directly or indirectly within
the reach of Commonwealth industrial law and of the jurisdiction of the
Commonwealth industrial tribunal. The artificial creation of a dispute has
become the first procedural step in invoking its award-making power.[1]
7.5
The process of ‘paper’ disputes developed by the
courts means that the Commission can exercise its functions to prevent and
settle industrial disputes without having to wait until interstate industrial
action, for example a strike or a lockout, is actually occurring. However, as
the Department points out, despite the integral importance of logs of claims to
establishing whether the Commission can exercise its dispute settling powers,
there is currently no regulation of the process of creating and serving logs of
claims in the WR Act.[2]
7.6
The Department also submitted that the proposed
amendments would ensure that demands included in logs of claims were matters
over which the Commission could exercise jurisdiction (ie matters relating to
the employment relationship)[3]
and assist recipients of logs of claims (particularly small business employers)
to better understand the processes and procedures of the federal award-making
jurisdiction.[4]
7.7
Employer groups supported the amendments to
assist employers to understand the Commission’s award making jurisdiction and
to allow employers more time to respond to logs of claims (ie the proposed
paragraphs 101A (a), (b) and (c)). For instance, the Business Council of
Australia submitted that it supported amendments to enable employees who become
the subject of logs of claims to better understand the implications of the
demand and to prepare for their response:
Currently there is potential for employers (particularly small
business) who are served with logs of claims (and who are not members of
employer organisations) not having sufficient time to ascertain explanations of
the processes of the Commission, its powers and the rights of parties served
with logs.[5]
7.8
The Australian Industry Group and the Australian
Chamber of Commerce and Industry supported the amendments for similar reasons:
The creation of an industrial dispute within the meaning of the
Constitution is largely a legal fiction not easily understood in the community.
The proposed amendments will assist respondent parties in understanding their
rights and obligations in relation to the process of creating industrial
disputes and will allow adequate time to seek advice about their rights.[6]
Employers are frequently surprised, upset and astonished about
the extravagant nature of claims in logs of claims, and an information sheet
will provide the employer with some guidance about the Constitutional
considerations leading to logs of claims. The...Commission has itself recognised
this problem, and has provided a standard information sheet which explains the
issues to employers. Unfortunately this information sheet is not provided with
logs of claims, instead it is served on employers with the AIRC notice of
hearing. Since the notice of hearing is frequently not served on individual
employers at all (because of substituted service), thousands of employers do
not receive any explanation about the reasons for the extravagant claims made
in the log of claims they received. This is very undesirable.[7]
7.9
The Committee also heard evidence about how
small business employers react to being served with logs of claims:
...it terrifies the pants off little people who do not know what
is going on... a staggering 60 per cent of net job growth comes from small firms
and microfirms...So not only is it an unpleasant process but, to the
uninitiated—the new start-ups, people who are really blotting up labour—it is a
major fright...[8]
7.10
Employer groups generally did not comment on the
amendments in proposed paragraph 101A(d). However, many unions were opposed to
paragraph (d), believing that it would lead to additional litigation. The new
provisions would prevent the Commission from finding that a dispute exists
where a single demand in a log of claims did not, for example, pertain to the
employment relationship. Unions claimed that the issue of which matters are
considered to relate to the ‘employment relationship’ is a complex legal issue
normally determined by the courts:[9]
....one invalid claim in a log
of claims invalidates the whole log and the union would have to start all over
again with the process. The incentives to challenge each and every claim
because it would no longer be severable and it would invalidate the whole thing
are very high. You can imagine the amount of litigation that would go on around
each and every claim.[10]
7.11
The Shop, Distributive and Allied Employees
Association submitted that if paragraph (d) were enacted the Commission would
effectively be prevented from finding a dispute existed in many cases: if a log
of claims had not been constructed to meet the proposed requirements, then the
Commission could not find a dispute under proposed paragraph 101A(d), and if
the union did ‘construct’ the log of claims to meet the new requirements, High
Court authority would prevent the Commission from finding that a dispute
existed anyway.[11]
Conclusion
7.12
A majority of the Committee supports the
amendments, as they will allow parties not familiar with the federal
jurisdiction time to seek independent advice and to prepare their response to
the log of claims. The Committee acknowledges that this will result in some
additional delay for the parties in some cases. However, it is essential to
ensure that all parties can properly participate in Commission proceedings
affecting them, and the Committee considers that this objective outweighs
slight procedural delays.
Recommendation
7.13
That the proposed amendments to regulate logs of
claims be enacted.
Allowable award matters
7.14
The Bill contains amendments to:
- remove some allowable award matters from subsection 89A(2)
(skill-based career paths, tallies and bonuses (except for outworkers), long
service leave, notice of termination, and jury service);
- clarify the scope or meaning of particular allowable award
matters (ceremonial leave, public holidays, allowances, and redundancy
payments);
- clarify that some matters are not allowable (transfers
between locations, transfers between types of employment, training or education
(except for trainees and apprentices), recording hours of work, accident make-up
pay, union picnic days, dispute resolution procedures where no choice as to
representatives, limits on numbers/proportions of employees in particular types
of employment or classifications, maximum or minimum hours of work for part
time employees and tallies); and
- clarify the types of matters that may be included in an award
because they are ‘incidental’ to allowable award matters.
Evidence
Skill-based career paths
7.15
The Department submitted that this amendment
would have the effect of removing training and study provisions from awards,
which would be matters for determination at the enterprise or work level.[12] It was not originally intended
that training and study provisions would be allowable award matters, which is
why they are not currently included in section 89A(2). However, most groups who
commented on this proposal assumed that its purpose was to prevent the
Commission from adjusting internal relativities in award pay rates.
7.16
The Australian Chamber of Commerce and Industry
supported the proposed amendment, stating:
In relation to skill based
career paths, ACCI submits that the entrenched Australian practice of
establishing and maintaining multiple levels of minimum wages makes us unique
in the OECD...These are ‘classification’ levels which are supported by the term
‘career paths’ in s.89A(2)(a).[13]
7.17
The Australian Catholic Commission for
Employment Relations did not support the proposed amendment:
...the removal of skill
based career structure from the award has the potential to disrupt the internal
relativities between the various classifications in each award. This in turn
will lead to grievances about the appropriate rate of pay for work to be
performed.[14]
7.18
The Committee also received union submissions
which opposed the amendment mainly on the grounds that it would erode the
national skills base:
It was a complete surprise
to us that the minister put forward a provision which removes skill based
career paths and the essential underpinnings of training and skills development
that we have all been working on over the last 10 years to get this country to
a stage where it competes on the basis of skills and not on the basis of low
wages.[15]
7.19
Some submissions
raised particular concerns that this amendment would have a disproportionate
and negative effect on women[16],
workers in industries with mobile workforces[17] and low-paid workers, including outworkers.[18]
Conclusion
7.20
A majority of the Committee is of the view that
training and skill development are matters best resolved at the workplace
level.
Recommendation
7.21
That the amendments to remove skill-based career
paths and training from the list of allowable award matters be enacted.
Tallies and bonuses
7.22
The Government has made some amendments to the
Bill to ensure that bonuses for outworkers remain an allowable matter. In other
cases, wage payments based on tally or bonus systems will
become non-allowable in awards. However, piece rate based wage systems will
remain an allowable matter.
7.23
Regarding the difference between tallies,
bonuses and piece rates, the Department made the following submission:
‘Tallies are based on inputs, in contrast to piece rate systems,
which are based on outputs...Bonuses are not related to production levels in a
systematic way, often being a one-off payment when a specified level of
production or performance is reached. They are provided in addition to the
minimum rates of pay, in contrast to piece rates, which are an alternative to
minimum time-based pay rates of pay. Piece rate systems may also include a
guaranteed minimum payment, generally close to, or slightly above the minimum
time-based rate of pay in the award.’[19]
7.24
During the Committee’s consideration of the
Bill, the Commission handed down a decisions relating to tallies in the Federal
Meat Industry (Processing) Award 1996, which provides some guidance as to the
nature of tallies:[20]
‘The simple effect of the unit tally (as specified in the (the
award)) is to increase unit labour costs as output exceeds minimum and then
maximum tally. However, the extent to which this feature of the tally constrains
capacity utilisation and the level of output on a given shift depends also on a
number of other factors, such as stock availability on the day and chiller
capacity . . . Both head and unit tallies are based on inputs - such as the
number of heads - rather than a measure of output, such as weight processed,
yield per animal, or any other measure of quality. This has implications for
the impact of the tally on incentives facing both employees and management.
Unit tallies in particular are complex and prescriptive. The (award) tally
provisions are over 50 pages long.’[21]
7.25
In this decision, the Commission decided to
delete the tally provisions from the meat industry award, because they were not
operating as minimum rates as required by the Act.[22] The Commission also commented
that the tally provisions in the meat industry award had fallen into disuse
because of its complexity and the conceptual difficulties involved in their
application. The award provisions were seriously out of date and lacked the
flexibility needed to meet the variety of work methods employed in the various
plants covered by the award.[23]
7.26
Tallies and bonuses are also used to set pay
rates in agricultural industries, including sheep shearing and fruit picking,
and the clothing industry. The Australian Workers’ Union and some of its
members provided the Committee with evidence about the impact in these
industries of the removal of award provisions for tallies and bonuses. However,
there was some confusion as to whether the retention of ‘piece rates’ as an
allowable award matter would allow these employees to retain their current wage
rate systems.[24]
7.27
The ACTU thought
that this confusion about the difference between piece rates, tallies and
bonuses would lead to lengthy proceedings before the Commission because of the
problem of uncertainty, as the three terms are used interchangeably in
industries such as clothing and meat.[25]
However, as noted above, the Government has amended the Bill to specify that
bonus payments for outworkers would remain an allowable matter.
Conclusion
7.28
A majority of the Committee believes that tally
and bonus systems are more appropriately developed at workplace or enterprise
level.
7.29
The Committee notes that ‘piece rates’ will
remain an allowable award matter, and while some payment systems in the
agricultural industry may currently be described as ‘tally’ or ‘bonus’ systems,
they are in effect generally operating as piece rate systems and could be
reformulated as such in the relevant awards. The Committee also notes that
employers and employees who believe that tally or bonus systems best meet their
workplace’s need for flexibility and productivity are free to develop tally or
bonus systems of payment through certified agreements.
Recommendation
7.30
That the amendments to remove tallies and
bonuses from the list of allowable award matters be enacted.
Long service leave
7.31
The Department submitted that:
...long service leave arrangements are already provided for in all
State and Territory jurisdictions through legislation. There are some differences
between long service leave provisions across the States/Territories and between
the various legislative provisions and federal award provisions, with some
federal award provisions more generous than the relevant State/Territory
legislation and other less so...The Bill contains a two year transitional
provision for the removal of long service leave provisions from awards, to
enable the parties to address the issues of inconsistency between current award
arrangements and entitlements that apply under State or Territory legislation.[26]
7.32
This amendment was supported by some employer
groups:
Long service leave is dealt with through State legislation...There
is no need to second guess the State legislatures. Where awards deal with the
same issues dealt with in legislation a second order of difficulty too often
arises, arising from differences in the requirements in the two schemes.[27]
7.33
However, some employer groups did not support
the amendment, as they did not think that removing long service leave
provisions from awards would result in simplification of requirements. Instead,
these employer groups thought that removing long service leave from awards
would cause additional administrative burdens for employers, or result in
increased long service costs.[28]
7.34
Unions opposed the
amendment, particularly because it would affect employees in itinerant
industries, such as construction, where employees do not work for the same
employer for very long, and therefore rely on specific industry-wide long
service leave schemes, enabling portability of long service leave entitlements:
The best example of why you
should not remove long service leave is the Oakdale issue. Oakdale workers were
retrenched. They were owed $6.3 million. The only money they got before it was
finally resolved was their long service leave entitlement, and they got that
for two reasons. Firstly, there was a centralised long service leave fund
available for the industry set up under Commonwealth law—and which Minister
Reith is on record as wanting to abolish. Secondly, there is an award provision
detailing the entitlement level, as well as other aspects of it—for example,
that it is based on industry service, it is portable, et cetera.[29]
Conclusion
7.35
A majority of the Committee supports this
amendment, as it will remove an additional layer of regulation in relation to
long service leave. Long service leave is already regulated by federal and
State legislation.
7.36
Regarding concerns that some employees and
employers will be disadvantaged by moving from award regulation of long service
leave to sole regulation of long service leave by legislation, the Committee
majority notes that there is a two year interim period proposed before long
service leave provisions would have to be removed from awards. This will give
these employers and employees some time to attempt to negotiate alternative
arrangements under agreements.
Recommendation
7.37
That the amendment to remove long service leave
from the list of allowable award matters be enacted.
Notice of termination
7.38
This amendment will remove provisions from
awards that are already dealt with in legislation. The WR Act sets minimum
notice requirements on termination[30]:
Minimum required periods of notice of termination by an
employer, based on age and years of employment, are provided for as a general
minimum entitlement by the Workplace Relations Act. This legislated standard is
identical to the award standard for required periods of notice of termination
by an employer set by the Termination, Change and Redundancy Test Case
(Print F6320).’[31]
7.39
However, some employers were opposed to the
amendment, because it would also have the effect of removing award clauses
requiring employees to give their employers notice on resignation. There are no
equivalent legislative provisions requiring employees to give notice.[32]
7.40
Some unions also opposed this amendment as
particular awards provide for longer periods of notice of termination than
those minimums set out in the WR Act.[33]
Conclusion
7.41
A majority of the Committee agrees with removing
duplication of provisions in awards and the WR Act. The Committee majority
notes that the amendment may remove provisions from awards requiring employees
to give their employers notice on resignation, but considers that affected
employers could negotiate notice requirements directly with their employees,
that most effectively meet the needs of their particular workplace.
Recommendation
7.42
That ‘notice of termination’ be removed from the
list of allowable award matters.
Jury service
7.43
The Bill removes ‘jury service’ from the list of
allowable award matters. Payments for members of the public required to serve
on juries is dealt with in State legislation. For this reason, the Business
Council of Australia and the Australian Chamber of Commerce supported the
amendment.[34]
The Department submitted that the Government’s policy position was that it was
not appropriate for awards to compel employers to pay allowances for ‘non-work
related matters’ such as jury service, and that only about one third of all
federal awards currently contain provisions relating to jury service, so these
provisions do not form part of the award safety net.[35]
7.44
Unions and employee groups opposed the removal
of jury service from the list of allowable award matters:
Like the removal of paid leave for blood donors...paid leave for
jury service is a public interest issue which should be of concern to the whole
community. The ability to draw on the greatest number and diversity of people
as potential jurors is vital to the operation of our legal system.[36]
7.45
The Australian Industry Group also opposed this
amendment. AIG claimed that awards currently contain obligations for
employees, as well as employers, relating to jury service, which are not
duplicated in State legislation.[37]
Conclusion
7.46
A majority of the Committee considers that it is
inappropriate for the federal award system to require employers to make up the
difference between payments for jury service by a State Government, which may
be perceived by some to be inadequate, and employees’ wages.
7.47
A majority of the Committee also notes that only
about one third of all federal awards contain provisions relating to jury
service. These provisions are therefore only currently enjoyed by selected
employees, with employees covered by the remaining two thirds of awards being
required to accept State payments, or to negotiate alternative arrangements in
agreements.
Recommendation
7.48
That ‘jury service’ be removed from the list of
allowable award matters.
Ceremonial leave
7.49
The Bill inserts a new allowable award matter,
‘ceremonial leave for Aboriginal and Torres Strait Islander people, and other
like forms of leave, to meet cultural obligations’. This replaces part of the
current allowable award matter in paragraph 89A(2)(g), relating to personal
leave.
7.50
This amendment was generally supported by employer
groups.[38]
In particular, the Australian Chamber of Commerce and Industry made a fairly
detailed submission about the history of this matter, and the Commission’s test
case decision on the scope of the existing paragraph 89A(2)(g).[39] The Committee did not receive
a great deal of other evidence about this amendment.
Recommendation
7.51
That the amendments to remove ‘cultural leave’
from the allowable award matter relating to personal and carers’ leave, and to
include a new allowable award matter in the Act relating to ceremonial leave
for Aboriginal and Torres Strait Islander people, be enacted.
Public holidays
7.52
The proposed amendment clarifies that the only
types of provisions that can be included in awards under the allowable award
matter ‘public holidays’ (paragraph 89A(2)(i)) are those relating to holidays
declared, proclaimed or gazetted to be public holidays by State and Territory
governments.
7.53
This amendment was opposed by employees who
thought that the changes might result in the abolition of some public holidays
contained in awards that are not generally declared by State Governments, for
example, Easter Saturday,[40]
and union picnic days.[41]
7.54
On the other hand,
some employer groups supported the amendment on the grounds that federal award
provisions should not override State responsibilities.[42]
7.55
The Australian
Industry Group gave its ‘conditional support’ for the amendment, but thought
that there may be some difficulties associated with moving from the award Test
Case standard of 11 public holidays to State declared holidays, which could in
fact entitle employees to additional holidays, and create different levels of
entitlements in different States.[43]
Conclusion
7.56
A majority of the Committee agrees that
responsibility for determining public holidays lies with State and Territory
governments. It is acknowledged that this results in different standards across
the various jurisdictions. This, however, has always been the case with public
holidays.
Recommendation
7.57
That the proposed amendment to clarify the
meaning of the allowable award matter ‘public holidays’ in paragraph 89A(2)(i)
be enacted.
Allowances
7.58
The Bill more clearly defines what types of
‘allowances’ are allowable award matters under paragraph 89A(2)(j). The new
provisions specify that allowances only cover monetary allowances of three main
categories (reimbursement allowances, disability allowances and skill-based
allowances).
7.59
The Department submitted that the amendment is
necessary to address the lack of guidance provided by the wording of the
current provision, noted by the Commission in a decision on the Commonwealth
Bank of Australia Officers Award:
...we do not find much assistance from the context in which the
term ‘allowances’ appears in section 89A(2)(j). Certainly it may be accepted
that an allowance within the meaning of the term used in that paragraph must be
an allowance of a kind appropriately the subject of an industrial award.
Essentially the elements of such an allowance...:an entitlement in the employee
to a payment notionally distinct from the wage for a purpose connected with the
employment relationship, and particularly to compensate for some condition of
or related to the work.[44]
7.60
The Department also submitted that the proposed
new paragraph 89A(2)(j) was designed to adopt the elements of the Full Bench’s
interpretation of paragraph 89A(2)(j) in the Award Simplification decision.[45]
7.61
Employer groups supported the amendment because
it would provide certainty to the ‘allowances’ allowable matter.[46] Unions and employee
associations were generally opposed to the amendment, providing specific
examples of types of allowances that they believed could no longer be included
in awards if the new provision was enacted.[47]
Conclusion
7.62
A majority of the Committee agrees that there is
a need to clarify what sort of allowances are covered under the allowable award
matter in paragraph 89A(2)(j), and notes in this regard that a Full Bench of
the Commission has criticised the existing provision for not providing
sufficient guidance as to the intention of the legislature. The Committee
majority believes that the proposed provision has been drafted to encompass
those payments that, according to current industrial practice and usage, are
generally understood to be ‘allowances’.
Recommendation
7.63
That the amendment to clarify the meaning of the
allowable award matter ‘allowances’ be enacted.
Redundancy payments
7.64
The proposed amendment clarifies that award
provisions relating to redundancy payments would only be allowable under
paragraph 89A(2)(m) if the provisions relate to circumstances where an
employee’s employment is terminated at the initiative of the employer, and on
the grounds of redundancy. The Department provided examples of where
‘redundancy payments’ have been interpreted as meaning something broader:
At present, there are some awards such as the building industry
awards which define redundancy as a situation where an employee ceases to be
employed by an employer other than for reasons of misconduct or refusal of
duty. Under these awards, employees become eligible for redundancy payment in
ordinary resignation situations which are not ‘genuine redundancy’.[48]
7.65
Employer groups supported the amendment because
it would result in greater certainty as to the meaning of paragraph 89A(2)(m).[49] The Committee did not receive
a great deal of other evidence about the proposed amendment.
7.66
However, the CFMEU did provide evidence that the
amendment could affect entitlements in the mining industry:
The coal mining industry award currently provides for payment of
severance and retrenchment pay in circumstances where employees are terminated
due to technological change, market forces or diminution of reserves. These
factors fall outside what is comprehended by the narrow definition of
redundancy pay proposed by the Government.[50]
Conclusion
7.67
A majority of the Committee believes that the
Bill’s definition of ‘redundancy pay’ reflects the general community
understanding of redundancy, and will provide more certainty in the
interpretation of paragraph 89A(2)(m).
Recommendation
7.68
That the amendment to clarify the meaning of the
allowable award matter ‘redundancy pay’ be enacted.
Clarification of non-allowable
matters
7.69
The Bill inserts a list of matters which are not
‘allowable award matters’ to further clarify the operation of subsection
89A(2). These matters are set out in full in item 13 of Schedule 6 (proposed
subsection 89A(3A)). Two matters attracted the most comment: accident make-up
pay and transfers between locations and types of employment.
Accident make-up pay
7.70
Accident make-up pay is an additional payment
required of employers to ‘top up’ the difference between an injured employee’s
normal salary and the amount of compensation they are paid under workers’
compensation legislation. This is a matter already dealt with by State,
Territory and Federal workers’ compensation legislation.[51]
7.71
This amendment was generally supported by
employers, with unions and employee associations opposed the amendment,
submitting that the proposed changes would result in a loss of entitlements for
employees, with workers in the construction industry being identified as most
likely to be affected.[52]
Conclusion
7.72
A majority of the Committee agrees that
employees’ compensation for work-related injuries and illnesses is a matter
most appropriately dealt with by State and Territory legislation (and federal
legislation with regard to federal employees).
7.73
The various workers’ compensation and
occupational health and safety schemes established by State and Territory
governments reflect a determination of what proportion of the costs of a
workplace accident should be borne by employers, employees and the government.
As has been indicated in some major industry reports, the costs of workplace
injuries should be shared between these three groups. Workers’ compensation
schemes establish levels of benefits for injured employees based on this policy
decision.
7.74
Governments set levels of benefits in line with
an assessment of how workers’ compensation payments interact with other scheme
objectives, for example, encouraging early return to work and effective
rehabilitation. Award provisions to ‘top up’ workers’ compensation benefits may
have the effect of negating these return to work and rehabilitation objectives.
Recommendation
7.75
That the proposed amendment to specify that
‘accident make-up pay’ is not an allowable award matter be enacted.
Transfers between locations and
types of employment
7.76
The Department submitted that these amendments,
to remove award provisions dealing with matters relating to transfers between
locations and types of employment (eg casual, part time, full time) were
appropriate, as these are matters best dealt with by agreement at the
workplace.[53]
7.77
Some witnesses were concerned about the effect
that this exclusion might have on award provisions designed to protect pregnant
workers and new parents.[54]
Conclusion
7.78
A majority of the Committee is not convinced
that these concerns have any foundation and agrees that these matters should be
dealt with at the workplace level.
Recommendation
7.79
That the proposed amendments to specify that
transfers between locations and types of employment are not allowable award
matters be enacted.
Safety net increases linked to award simplification
7.80
The Bill proposes an amendment to the Act to
prevent variations to awards to adjust wages to incorporate safety net
increases, unless the award has been simplified under the new award
simplification provisions. The Department submitted that this amendment ‘is
aimed at accelerating the award simplification processes’.[55]
7.81
The amendment was strongly supported by the
Australian Chamber of Commerce and Industry, which submitted that unions had
frequently tried to delay the award simplification process because they opposed
it:
...the rationale...is...that restructuring of awards is a difficult
process, that it is difficult to persuade unions in particular to cooperate
with that process of reform, and that both a ‘carrot’ and ‘stick’ were
necessary, the carrot being the safety net adjustment for the unions, and the
stick being that this would not be available unless there was measurable
progress or outcomes of restructuring.[56]
7.82
The Business Council of Australia supported the
proposed amendment on the grounds that it would increase the pace of award
simplification, but thought that the Commission should take ‘a more directive
role in the process to bring the process to resolution. This will assist the
parties by enabling them to not become too distracted from their paramount
priority of implementing enhanced workplace arrangements.’[57]
7.83
The Committee received evidence indicating other
witnesses (some employer groups, unions, employees, community groups, lawyers,
academics, State Governments) were opposed to the amendment:[58]
Award simplification is a lengthy process; it is unjust to
impose this requirement on the an employee who cannot speed the award
simplification process along...Employees should not be penalised by not receiving
pay rises to which they are entitled, especially when the AIRC may not have
fully reviewed or even started to review their award because of resource or
staffing issues within that organisation.[59]
Conclusion
7.84
A majority of the Committee notes that the
rationale for the amendment is to encourage unions to expedite the process of
award simplification. The Committee has received evidence that the pace of
award simplification has been quite slow, and needs to be accelerated.
7.85
A majority of the Committee notes that the
Government has passed an amendment to the Bill to stop this provision coming
into operation until six months after commencement of the Bill – this means
that safety net increases probably wouldn’t be affected until April 2001. This
gives the Commission and the Government some additional time to ensure that
award-reliant employees are not disadvantaged by the slow pace of award
simplification to date.
Recommendation
7.86
That the proposed provision be enacted.
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