100 Years of history

1
100 Years of history

• From the Dickensian era of the industrial
  revolution through to the 21st century a proud
  history of workers rights

2
Workers Rights
Occupational Health and safety
3
The Work Choices Legislation
Slides 4 through 24 derived from presentation by
Andrew Stewart Flinders University accessed on
line
4
The Work Choices legislation

• Workplace Relations Amendment (Work Choices) Act
  2005
• amends Workplace Relations Act 1996
• most of it took effect on 27 March 2006
• detailed regulations only just released
• under challenge by the States but assume its
  valid until High Court says otherwise
• long and hideously complicated!

5
Key changes

• Expansion of federal system
• New options for agreement-making
• New minimum standards
• Further restriction of awards
• Less controls on termination of employment
• Greater controls on unions
• Encouraging dispute resolution outside AIRC

6
Expanding the federal system

• Government is using corporations power to move
  towards a national system
• New federal system will cover
• all constitutional corporations (trading,
  financial and foreign corporations)
• plus other employers in Victoria and the
  Territories, and Commonwealth agencies

7
What is a trading corporation?

• Must be an incorporated body
• proprietary company
• not-for-profit association incorporated under
  State incorporated associations legislation
• statutory authority incorporated under special
  legislation
• would include a corporate trustee
• but not an individual or a partnership

8
What is a trading corporation?

• Incorporated body must have significant trading
  activities
• under current law, purpose for which a body was
  formed is irrelevant
• hence non-profit bodies can be trading
  corporations
• eg local councils, public universities,
  hospitals, benevolent or charitable
  organisations, emergency services providers

9
What are trading activities?

• Any activity that involves some notion of buying
  or selling and that generates revenue
• Examples
• providing services to clients or customers, in
  return for a fee or charge
• providing services to members in return for a fee
• selling goods (inc food and drink, merchandise,
  etc)
• hiring out equipment

10
What are trading activities?

• More examples
• presenting performance or event and charging for
  admission
• fundraising
• deriving income from investments
• renting out property

11
What are trading activities?

• Receipt of funding (public or private) to provide
  services to public is not trading
• But a body funded in that way can still be a
  trading corporation if it obtains significant
  revenue from
• charge imposed on clients/customers to cover part
  of cost of providing services
• or other trading activities, even if non-core

12
Pre-Work choices

• Minimum Standards
• Minimum industry standards
• Award
• Enterprise Agreement
• AWA
• Common Law contract

13
Prohibited content for agreements

• Specified in regulations, including
• renegotiation of agreements
• restrictions on use of contractors or labour hire
  workers
• union training leave, paid union meetings,
  mandatory union involvement in dispute
  resolution, right of entry, deduction of union
  dues, info to unions about employees
• any remedy for unfair dismissal
• secrecy provisions re content of agreement
• discriminatory terms
• matters not pertaining to employment relationship
• Note penalty for even proposing prohibited content

14
New minimum standards

• Fair Pay and Conditions Standard, covering wages,
  hours, plus annual, personal and parental leave
• Applies to all employees working for federal
  system employers, except where
• contract or workplace agreement more favourable
  (as per rules set out in regulations)
• award or notional agreement has more favourable
  provisions on annual, personal or parental leave
• pre-reform federal agreement or preserved State
  agreement applies

15
Wages

• Basic rate of pay must be paid for all hours
  worked
• either old award rate (now preserved as an
  Australian Pay and Classification Scale or APCS)
• or otherwise federal minimum wage (12.75 p/hour
  for adults or 484.00 per week.)
• both subject to updating by Fair Pay Commission
• plus at least 20 loading for casuals (or higher
  if set by an APCS and agreement doesnt specify
  otherwise)

16
Hours of work

• Maximum of 38 ordinary hours per week (or
  averaged over agreed period of up to a year)
• but employee can also be required or requested to
  work reasonable additional hours without
  overtime or penalty rates
• No guarantee of compensation for working overtime
  or antisocial hours
• depends on terms of applicable agreement or award

17
Annual leave

• 4 weeks annual leave, plus extra week for some
  shiftworkers
• Up to 2 weeks can be cashed out on written
  request from worker, but only pursuant to a
  workplace agreement
• any provision in an agreement providing for
  accrued leave to be foregone other than in
  accordance with Act is prohibited content

18
Personal and parental leave

• Personal leave
• 10 days paid sick leave/carers leave per year
• extra 2 days unpaid carers leave per year if
  needed
• 2 days paid compassionate leave per occasion (eg
  family bereavements)
• 12 months unpaid parental leave

19
Other new minimum conditions

• Public holidays
• employee entitled to take a day off on public
  holidays
• but may be requested by employer to work, and
  must establish reasonable grounds for refusal
• not applicable where pre-reform federal agreement
  or preserved State agreement applies
• Meal breaks
• employee must not be required to work for more
  than 5 hours continuously without unpaid 30
  minute meal break
• not applicable where award or statutory agreement
  applies

20
Protected conditions

• Certain award conditions apply unless (except in
  the case of outworkers) explicitly overridden by
  workplace agreements
• public holidays
• rest/meal breaks
• bonuses and incentive payments
• annual leave loadings
• some allowances
• penalty rates, shift/overtime loadings

21
Awards

• Reduced scope and coverage
• fewer allowable matters
• changes take effect as from commencement date,
  even prior to new round of simplification by AIRC
• Award Review Taskforce to look at
  rationalisation of awards
• Minister to decide on recommendations, AIRC to
  implement them
• no new awards without Ministers request
• may eventually lead to small number of industry
  awards, each applying by common rule

22
Non-allowable award matters

• Matters no longer allowable include
• wage rates, classifications, casual loadings (?
  APCSs)
• redundancy pay for employers with less than 15
  workers
• restrictions on use of contractors or labour hire
  workers
• union training or dispute resolution leave, union
  picnic days, mandatory union involvement in
  dispute resolution
• conversion of casuals to another type of
  employment
• restrictions on range or duration of training
  arrangements

23
Non-allowable award matters

• Matters no longer allowable for new awards, but
  existing provisions preserved
• annual leave
• personal/carers leave
• parental leave
• long service leave
• notice of termination
• jury service
• superannuation (until 30/6/08)

24
Removing award coverage

• Awards may cease to apply if
• workplace agreement registered
• expired workplace agreement is terminated
• employees revert to minimum standards plus
  protected award conditions only

25
Dispute resolution

• AIRC will lose most of its powers of compulsory
  arbitration
• Dispute resolution provisions in awards to be
  replaced by model dispute resolution process
• provides for mediation/conciliation as a final
  step, unless parties agree that dispute be
  arbitrated
• parties can choose either private provider or
  AIRC, but AIRC is the default
• AIRC may be forced to charge for its services

26
Stages

• 1st stage attempts to resolve dispute at
  workplace level
• next stage Alternative Dispute Resolution (ADR)
  by an agreed 3rd party
• could be the AIRC, or a private ADR provider
• if no agreement on 3rd party for ADR, party can
  apply to AIRC

27
Disputes under workplace agreements

• AIRC can conduct ADR in disputes under workplace
  agreements if
• agreement dispute resolution procedure (DRP)
  confers power on AIRC ie the parties have not
  adopted the Model DRP
• all steps before referral to AIRC complete
• - only those powers conferred in the agreement
• - no power to make orders

28
Private arbitration ADR under workplace
agreements

• Representation
• Otherwise to allow representation if appropriate
  to do so
• May set reasonable limits on the conduct of the
  representative
• Privacy
• Process to be conducted in private
• Must allow where workplace agreement makes
  provision for such representation
• Limits on use of information and documents

29
Evidence

• Inadmissibility of evidence other than by
  agreement or in circumstances specified by the
  Regulations
• No ADR to be conducted in relation to a dispute
  or matter subject to proceedings or findings
  under anti-discrimination law etc.

30
Choosing the AIRC

• If parties want the Australian Industrial
  Relations Commission to conduct any dispute
  resolution process under the agreement they can
  include a provision in the agreement which makes
  the Commission the forum for resolving disputes.

31

• The Commission cannot conduct a dispute
  resolution process in relation to a dispute under
  a workplace agreement unless two conditions are
  fulfilled.

32

• The first condition is that under the terms of
  the agreement the dispute may be resolved by the
  Commission. Parties can choose to include
  specific reference to the Commission (or a
  particular member or members of it) if they wish
  to avoid doubt.

33

• The second condition is that any preliminary
  steps required under the agreement have been
  taken.

34
Example

• If a dispute in relation to a matter arising
  under this agreement is unable to be resolved at
  the workplace, and all agreed steps for resolving
  it have been taken, the dispute may be referred
  to the Australian Industrial Relations Commission
  for resolution.

35
Before The Comission

• It is not mandatory that dispute resolution
  procedures in workplace agreements require the
  parties to attempt to resolve the dispute
  themselves before seeking outside assistance, but
  it is desirable they should.

36
Before The Comission

• In the first instance the parties will genuinely
  attempt to resolve the matter at the workplace by
  discussions between the employee or employees
  concerned and the relevant supervisor and, if
  such discussions do not resolve the dispute, by
  discussions between the employee or employees
  concerned and more senior levels of management as
  appropriate

37

• This clause applies where
• any dispute arises out of matters dealt with
  under this Agreement and/or
• a complaint is made by a staff member about their
  workplace, or another staff member, or a decision
  affecting their employment.

38

• As a first step the appropriate manager will be
  responsible for investigating the facts of the
  dispute. Any investigation will be based on the
  principles of natural justice. This requires that
  he/she approach the process with neutrality and
  in recognition of the right of all parties to a
  fair hearing.
• Where appropriate, the manager will facilitate
  the involvement of a mediator to resolve the
  dispute in question.

39

• STAGE 2
• Where discussions fail to resolve the matter,
  either party may refer the matter to the relevant
  Pro Vice Chancellor/Executive Director for
  resolution

40

• STAGE 3
• If this process fails to resolve the issue under
  dispute, the Vice Chancellor shall be formally
  notified and a Disputes Committee shall be
  established within a further 10 working days of
  conclusion of the process outlined in sub-clause
  19.7 above.

41

• The Committee shall consist of
• one nominee of the Vice-Chancellor and
• one nominee of the relevant Union or a nominee of
  the staff member who has initiated the complaint
  pursuant to sub-clause 19.1 and
• one nominee selected from a pool of persons with
  expertise in industrial relations and agreed upon
  by all parties to the dispute or, if such a pool
  is lacking, then through negotiation with all
  parties.

42

• In the event of a dispute relating to a
  classification matter, the parties agree that the
  Disputes Committee shall be altered by agreement
  to ensure that members of the committee have
  clear training and/or understanding in relation
  to classification matters, as agreed from time to
  time between the Union(s) and the Director HR.
  This Committee will be empowered to make a
  determination on any aspect of classification
  relevant to the dispute.

43

• Notwithstanding any other clause in this
  Agreement or any other policy or procedure of the
  University, the University shall not, at any
  stage of the dispute resolution procedures,
  including the referral of the matter to the
  Australian Industrial Relations Commission, move
  to restrict the employment continuity of the
  employee in question or terminate, or allow to
  expire, the employment of an employee who is the
  subject of these dispute resolution procedures
  (except where the employee is on probation).

44

• This sub-clause specifically protects the rights
  of staff engaged on fixed-term contract. Such
  staff members shall have their contract period
  extended with no break in service to cover the
  entire period of the dispute resolution process
  and shall be deemed to be on leave without pay
  for the extended contract period.

45

• Until the dispute has been resolved
• work shall continue in the normal manner
• no industrial action shall be taken by the
  University or the Union, and
• the University shall not change work, staffing or
  the organisation of work if such is the subject
  of the dispute, or take other action likely to
  exacerbate the dispute.

46

• A party to the dispute may appoint another
  person, organisation or association to accompany
  or represent them in relation to the dispute.

47
Functions and powers of the AIRC

• When a dispute is referred to it, the Commission
  has the functions and powers given to it by the
  terms of the workplace agreement or those that
  are otherwise agreed by the parties.

48

• If a dispute in relation to a matter arising
  under the agreement is unable to be resolved at
  the workplace, and all agreed steps for resolving
  it have been taken, the dispute may be referred
  to the Australian Industrial Relations Commission
  for resolution by mediation or conciliation.

49

• and, if the dispute remains unresolved, by
  arbitration. If arbitration is necessary the
  Commission may exercise the procedural powers in
  relation to hearings, witnesses, evidence and
  submissions which are necessary to make the
  arbitration effective.

50

• On a dispute being notified to it, the Australian
  Industrial Relations Commission may exercise such
  powers and functions as the parties agree are
  appropriate at the time.

51

• Arbitrate
• All parties abide by outcome
• Take evidence witnesses
• Decision will be binding
• Status Quo