Australian Work Choices legislation

Table of contents

1) 1. Where can I find the Work Choices legislation? 2) 2. Will certified agreements in operation before the commencement of Work Choices continue to operate? 3) 3. Can pre-reform certified agreements be varied or extended after the commencement of Work Choices? 4) 4. Do pre-reform certified agreements need to comply with the Australian Fair Pay and Conditions Standard? 5) 5. Can certified agreements made prior to the commencement of Work Choices be terminated? 6) 6. Can a collective agreement made under Work Choices arrangements replace a pre-reform certified agreement before the Nominal Expiry Date (NED) of the pre-reform certified agreement? 7) 7. Will AWAs made before the commencement of Work Choices continue to operate even after they pass their nominal expiry date unless terminated or replaced by a new AWA? 8) 8. Can pre-reform AWAs be varied after the commencement of Work Choices? 9) 9. Do pre-reform AWAs need to comply with the Australian Fair Pay and Conditions Standard? 10) 10. How can a pre-reform AWA be terminated? 11) 11. How has the workplace agreement lodgement process changed under WorkChoices? 12) 12. Will workplace agreements still be able to override state legislation, in relation to employment conditions, e.g. long service leave? 13) 13. Is there any difference between a non-union agreement in the new WorkChoices legislation in comparison to the previous legislation? 14) 14. Does the new Workchoices legislation recognise a bargaining agent? 15) 15. Will the recent NSW legislation about bringing employees of various state government bodies back into the “public service” affect universities in NSW? 16) 16. Are there any other changes in NSW that will affect universities in NSW? 17) 17. What are the changes to “protected industrial action” under WorkChoices? 18) 18. Can I make a ‘post-reform’ Workplace Agreement without first terminating my current EBA? 19) 19. How will the different forms of Workplace Agreements operate, in relation to one another? 20) 20. What is "prohibited content" in workplace agreements under WorkChoices? 21) 21. What happens if I include prohibited content in the Workplace Agreement? 22) 22. What additional records do I now have to keep about hours worked by university employees? 23) 23. What is the lodgement process of the Workplace Agreement? 24) 24. What happens to awards on the implementation of WorkChoices on 27 March 2006? 25) 25. How does WorkChoices deal with probationary employment and notices of termination in comparison to the previous legislation?

1. Where can I find the Work Choices legislation?

The main amending legislation was called the Workplace Relations Amendment (Work Choices) Act 2005 (at Austlii), but the principle Act remains the Workplace Relations Act 1996 (at AIRC). The main Regulations are called the Workplace Relations Regulations 2006 (at Austlii) and replace the previous Regulations. A detailed explanation of the intention of various clauses in the Regulations can be found at the Explanatory Statement (at ComLaw)

2. Will certified agreements in operation before the commencement of Work Choices continue to operate?

FAQs copied from DEST HEWRR website

Yes. Certified agreements in operation before the commencement of Work Choices will continue to operate until they are replaced by a workplace agreement made after Work Choices commences.

3. Can pre-reform certified agreements be varied or extended after the commencement of Work Choices?

FAQs copied from DEST HEWRR website

Only in limited circumstances. Pre-reform certified agreements can only be varied to remove ambiguity or uncertainty, or to ensure its coverage does not exclude employees because of their union, or non-union, membership. Pre-reform certified agreements cannot be extended after the commencement of Work Choices.

4. Do pre-reform certified agreements need to comply with the Australian Fair Pay and Conditions Standard?

FAQs copied from DEST HEWRR website

No. These agreements will not need to comply with the Australian Fair Pay and Conditions Standard for the period of their operation because they were assessed against the no-disadvantage test prior to certification.

5. Can certified agreements made prior to the commencement of Work Choices be terminated?

FAQs copied from DEST HEWRR website

Certified agreements made prior to the commencement of Work Choices may be terminated using the termination provisions which applied before Work Choices. A pre-reform certified agreement that is terminated will cease to have effect. In these circumstances, an employee’s entitlements will come from:

• any applicable collective agreement or AWA made after Work Choices commences, or
• in the absence of a workplace agreement, an applicable award.

6. Can a collective agreement made under Work Choices arrangements replace a pre-reform certified agreement before the Nominal Expiry Date (NED) of the pre-reform certified agreement?

FAQs copied from DEST HEWRR website

Yes. Work Choices provides that a pre-reform certified agreement ceases to be in operation in relation to an employee if a collective agreement comes into operation.

Therefore a collective agreement made under Work Choices can replace a pre-reform certified agreement before the NED of the pre-reform agreement.

7. Will AWAs made before the commencement of Work Choices continue to operate even after they pass their nominal expiry date unless terminated or replaced by a new AWA?

FAQs copied from DEST HEWRR website

Yes.

8. Can pre-reform AWAs be varied after the commencement of Work Choices?

FAQs copied from DEST HEWRR website

No. Pre-reform AWAs cannot be varied after the commencement of Work Choices.

9. Do pre-reform AWAs need to comply with the Australian Fair Pay and Conditions Standard?

FAQs copied from DEST HEWRR website

No. It is not necessary for pre-reform AWAs to comply with the Australian Fair Pay and Conditions Standard because these AWAs were assessed against the no disadvantage test prior to approval.

10. How can a pre-reform AWA be terminated?

FAQs copied from DEST HEWRR website

A pre-reform AWA may be terminated using the termination provisions which applied before Work Choices commenced. If a pre-reform AWA is terminated but not replaced by a new AWA, an employee’s entitlements will come from:

• any applicable certified agreement or collective agreement; or
• in the absence of such agreement, an applicable award.

11. How has the workplace agreement lodgement process changed under WorkChoices?

FAQs copied from DEST HEWRR website

Details on the lodgement process can be obtained from the Office of the Employment Advocate (OEA) either by visiting the website www.oea.gov.au or phoning 1300 366 632.

12. Will workplace agreements still be able to override state legislation, in relation to employment conditions, e.g. long service leave?

Yes. Workplace agreement will prevail over State or a Territory legislation or employment agreement to the extent of any inconsistency unless it is dealing with the following matters:

• occupational health and safety
• workers compensation;
• training arrangements;
• child labour
• discrimination
• EEO

13. Is there any difference between a non-union agreement in the new WorkChoices legislation in comparison to the previous legislation?

No. s.170 LJ Agreement with organisations of employees and s.170LK Agreements with employees has been repealed and replaced in Part 8 – Workplace Agreements in the new Workplace Relations Act and allows both employee collective agreements (non-union) and union collective agreements in both single or as multiple business agreements.

s.170LJ (1) of the Workplace Relations Act 1996 is the same as s.328 of the current legislation which now refers to Union collective agreements.

14. Does the new Workchoices legislation recognise a bargaining agent?

Yes. Division 3 of Part 8 of the Act establishes the bargaining agent for AWAs in s.334 and for the employee collective agreements in s.335. There is no separate section for bargaining agent for union collective agreements as the union is seen as a bargaining agent.

15. Will the recent NSW legislation about bringing employees of various state government bodies back into the “public service” affect universities in NSW?

University employees in NSW are not covered by the legislation, so there is no effect. Given the decisions of both the AIRC and the Federal Court that universities are “constitutional corporations” (i.e are within the “corporations power” of the Commonwealth), there does not appear to be any way that university staff can be taken out of the national IR system.

16. Are there any other changes in NSW that will affect universities in NSW?

It is possible that some unfair dismissals now to be excluded from the AIRC, e.g. probationers, redundancies, etc may be allowed into the NSW system (as has been the case in WA), but this is still uncertain and may or may not be clarified during the States challenge in the High Court.

17. What are the changes to “protected industrial action” under WorkChoices?

Ballots of members, not a decision of union executive, are required to approve industrial action:

• the AIRC must approve a ballot (it may not approve), after an application has been made (the employer and employees, if they wish, are to be given a reasonable opportunity to be heard);
• an approved ballot agent is to conduct the ballot;
• the result is to be provided to the Industrial Registrar, who must publish the result;
• industrial action is only approved if 50% of members vote, and a majority approves; and
• the industrial action must commence within 30 days of approval.

18. Can I make a ‘post-reform’ Workplace Agreement without first terminating my current EBA?

There is nothing to prohibit the parties entering into a post reform workplace agreement (either a collective agreement or AWA) during the currency of a pre-reform certified agreement (i.e. before the nominal expiry date). The post reform agreement will immediately extinguish the pre-reform.

19. How will the different forms of Workplace Agreements operate, in relation to one another?

Section 348 of the Act confirms that only one agreement can have effect at a particular time in relation to a particular employee. The hierarchy of workplace agreements is as follows:

• AWA
• Collective Agreement
• A Collective Agreement lodged before the expiry date of a previous collective agreement (until that NED has passed)
• Award

20. What is "prohibited content" in workplace agreements under WorkChoices?

A summary of what has been prescribed as ‘prohibited content’ provisions in post-reform collective agreements or AWAs are as follows:

• dealing with pay deductions and payroll facilities for trade union membership subscriptions;
• trade union training leave;
• renegotiation of a workplace agreement;
• the involvement of industrial associations in the whole or part of a dispute settling procedure, unless is the representative of the employer’s or employee’s choice;
• right of entry;
• restrictions on the use of independent contractors and labour hire workers;
• the forgoing of annual leave credited to an employee;
• providing employee information unless is required by law;
• directly or indirectly encourage or discourage freedom of association of an industrial association;
• allowing a person bound by the agreement to engage in or organise industrial action;
• A term that prohibits or restricts disclosure of details of the workplace agreement by a person bound by the agreement;
• providing remedy for harsh, unjust and unreasonable employment termination;
• unlawful discriminatory terms in workplace agreements (for example, race, sex, age, etc.); and
• directly or indirectly restriction on AWAs to be offered or negotiated or entered into.

(Refer to ‘prohibited content’ Regulation 8.5 and/or insight: Prohibited Content in Workplace Agreements for a full listing of the prohibited content).

21. What happens if I include prohibited content in the Workplace Agreement?

• The prohibited content in the workplace agreement is void.
• The OEA may exercise power to vary or remove the prohibited content.
• A fine up to $33,000 may be imposed on organisations

22. What additional records do I now have to keep about hours worked by university employees?

The Regulation currently requires an employee's daily starting and finishing times; total number of hours worked during each day; and nominal hours and any variations to those hours to be recorded. A six months grace period has been granted to employers since the introduction of the regulation in regard to its compliance.

The Minister announced on 19 April 2006 that record keeping obligations on employers would be amended as follows:

• where an employee has provisions for overtime and is paid an annual salary of less than $55,000, employers will be required to keep records of starting and finishing times and total hours worked;
• where an employee has provisions for overtime and is paid an annual salary of $55,000 or more, employers will be required to keep records of starting and finishing times;
• where an employee has no provisions for overtime and is paid an annual salary of less than $55,000, employers will be required to keep records of total hours worked; and
• where an employee has no provisions for overtime and is paid an annual salary of $55,000 or more, there would be no record keeping requirements.

(refer to in sight: Regulations re employee records )

23. What is the lodgement process of the Workplace Agreement?

Under the WorkChoices Act, both the AWA’s and Collective Agreements (CA) are lodged with the OEA.

Step 1: Pre-agreement

Before the University and Union (CA) or Employee (AWA) reach final agreement, ensure:

• rights of bargaining agents recognised where applicable;
• agreements contain mandatory content provisions (dispute resolution and NED);
• compliance with minimum FPCS; and
• the agreement does not contain prohibited content

Step: 2 Pre -approval

Provide access and information:

• at least 7 days prior to agreement provide information statement regarding time and manner when approval will be sought, involvement of bargaining agents and any information required by OEA
• period beginning 7 days before agreement is approved ready access to employee/s

Step 3: Approval

Ensure agreement is validly approved by the employee/s (AWA) or valid majority of persons (CA).

Step 4: Lodgement

• lodge a copy of the agreement and declaration with OEA within 14 days of the approval of agreement
• OEA issues receipt

(refer to in sight: Lodgement of Workplace Agreements or OEA website )

24. What happens to awards on the implementation of WorkChoices on 27 March 2006?

1. Pay and classification provisions are removed from awards and become Australian Pay and Classification Scales and remain in exactly the same terms as before. They will eventually be rationalised by AIRC.

2. The awards are reduced to fifteen allowable matters plus preserved award entitlements which include leave (annual, personal and parental), notice of termination, jury service and superannuation.

3. All non-allowable clauses cease to have effect. These include, but are not limited to:

• direct or indirect prohibitions on employers employing employees in a particular type of employment;
• union picnic or trade union training leave;
• conversion from casual to another type of employment;
• rights of an industrial association to represent the parties in the dispute settlement procedures unless they are the representative of the employee's or employer's choice;
• right of entry;
• discriminatory or preference clauses; and
• enterprise flexibility provisions.

(Refer to insight: Workchoices and awards )

25. How does WorkChoices deal with probationary employment and notices of termination in comparison to the previous legislation?

The WorkChoices legislation makes little change to the operation of probation and qualifying employment and continues to treat the two concepts separately. The new Workchoices legislation provides that the default qualifying period is extended from three months to six months, while the arrangements applying to probationary employment remain unchanged.

(refer to in confidence: Probationary employment and Notices of termination)