The Changes:

The Introduction of the Australian Fair Pay and Conditions Standard

• The Australian Fair Pay and Condition Standard is a set of basic entitlement that automatically applies to all businesses in Australia.
• As it acts as a basic safety net, any attempt by an employer to provide for terms of employment that are less generous than the Australian Fair Pay and Condition Standard are void and illegal.
• The Australian Fair Pay and Condition Standard includes:
• Employees rights to a Federal Minimum Wage or an Australian Pay and Classification Scale outlined in an applicable national award.
• An employee can only be required to work on average 38 hours a week plus any reasonable additional overtime.
• Full and Part time employees are entitled to paid annual leave, calculated on a pro-rata basis according to a formula in the Act.
• Full and Part time employees are entitled to paid sick and carers leave, calculated on a pro-rata basis according to a formula in the Act.
• Long term employees are entitled to up to 52 unpaid parental leave to care for a newborn child or a child they have recently adopted. This only applies to employees who are the primary carer for those children.
• Employers and employees have a right to freedom of association and cannot be forced to join or not join a union or employers association. Similarly an employer can be forced to use only certain union endorsed subcontractors.

Freedom from unfair dismissal

• Employees of small business (less than 100 staff) are no longer covered by unfair dismissal laws or the unfair contracts claims that previously dominated in many State jurisdictions.
• Employees in larger businesses are not able to sue for unfair dismissal if they are dismissed for ‘bona fide operational’ reasons.
• The changes are aimed at increasing business efficiency and employment growth. Under the previous system because any termination could be potentially unfair, it meant that many risk adverse small businesses simply did not employ people. Free from this risk employers should be more willing to engage staff.
• To prevent the system from being abused, employers are still prohibited from executing an unlawful dismissal. Subsequently, an employer cannot dismiss an employee inter alia on grounds that would breach the Racial or Sexual Discrimination Act; they are or are not a member of a union or because they will not sign a new workplace agreement.

Abolishing the “no disadvantage test” for workplace agreements

• Under WorkChoices there are 3 types of workplace agreements: Australian workplace agreements (AWAs), Employer-Employee Collective Agreements and Employer-Union Collective Agreements.
• Under the previous system, workplace agreements had to pass a no-disadvantage test before they could be registered and could be legal enforceable. This is no longer the case, as the new system is based on approval on application.
• To lodge and certify a workplace agreements an employer only needs to send their agreement to the Office of the Employment Advocate.
• To prevent the system from being abused safeguards still exist in particular:
• All workplace agreements must still comply with the Australian Fair Pay and Conditions Standards.  Any agreement that provides for terms that are less generous than the Australian Fair Pay and Conditions Standards will be void. Any terms in a workplace generous that are more generous than the Australian Fair Pay and Conditions Standards will be legally enforceable.
• A set of procedural safeguards will need to be followed to ensure that a workplace agreement can be registered. This includes the option for parties to appoint a bargaining agent, information statements and internal approval process. A failure by an employer to follow these procedures may result in them being subject to severe pecuniary penalties.
• The government has also included a list of what can and cannot be included in a workplace agreement.
• An employer cannot dismiss an existing employee because they will not sign a workplace agreement. However, they can make it a term of employment that a new employee will sign a workplace agreement.

National Awards System

• Under the previous system Australian businesses where subject to hundreds of State and Federal awards. This was extremely confusing and inefficient as business did not know what their responsibilities were to their employees.
• WorkChoices over a 3 year period will review and eventually abolish a number of State awards, replacing them with industry wide national awards.
• The Australian Fair Pay Commission will have the responsibility for setting wages under these national awards, and all other award matters will be dealt with and set by the Australian Industrial Relations Commission.
• To make it easier the government has prescribed what can and cannot be included in awards by outlining what is and what non allowable award matters are.

Limiting Rights to Industrial Action

• Under WorkChoices the rights of unions, employees and employers to take industrial action is extremely limited.
• Industrial action is defined extremely broadly to refer to all types of action include strikes, meetings, lock-outs and any other types of work stoppage.
• Parties are only allowed to take industrial action in the course of negotiating and bargaining over a collective agreement. This is known as protected industrial action.
• Any other industrial action taken outside of this scenario is known as unprotected industrial action and anyone involved in this action is subject to pecuniary penalties and other disciplinary action.

Rights of Entry

• The rights of unions and workplace inspectors to enter onto workplaces have been clarified by WorkChoices.
• Unions will only have rights to enter onto a workplace if they have members who work in that workplace and only to:
• Investigate breaches of awards or union collective agreements
• Investigate Occupational Health and Safety.
• Speak to employees as a collective group.
• Each of these rights is subject to their own set of rules.

Record Keeping

• Under the new Regulations employers are required to keep detailed employment records on how much employees where paid and how many hours they work for up to 7 years.
• This is designed to assist the enforcement of the Act and an employer can be subject to severe penalties for failing to do so.