WorkChoices in Not for Profit 100 years of Industrial Law turned on its head

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WorkChoices in Not for Profit 100 years of
Industrial Law turned on its head

• Agreements agreement-making
• Ann Fitzpatrick

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Agreements agreement-making - now

• Type of agreements
• - collective (union or non-union) AIRC approved
• - individual (AWAs) OEA approved
• Process
• - waiting periods, notices union
  intervention
• - employer onus of explanation
• - valid majority vote in favour (50 1)
• - no disadvantage test gt awards as
  benchmark
• Duration
• max. 3 yrs

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Agreements agreement-making - Now

• Pecking order certified agreements prevail over
  AWAs
• Operative from certification
• Prohibited content agreement cannot be certified
  if contains matters not pertaining
• Industrial action prohibited during life of
  agreement pre-nominal expiry date

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Whats changed?

• Types of agreement
• Can bargain collectively or individually
• new Greenfields agreement without union
• Process streamlined
• all agreements administered by OEA
• explanation now by OEA
• application now brief declaration by
  employer
• majority approval (of those who vote), but no
  vote required
• approval on lodgement - employer self-assessment

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Whats changed? (cont)

• Duration max. 5 yr duration
• Timeframes
• access to agreement for 7 days or less by
  agreement
• information statement at least 7 days before
• must lodge with OEA in 14 days of approval
• must issue copy lodgement receipt to employees
  within 21 days

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Whats changed? (cont)

• Approval requirements
• AWAs - when employer employee sign date
• Collective - majority in favour, by vote or
  otherwise
• Compulsory terms limited
• Nominal expiry date
• dispute resolution
• Benchmarks
• 38 hour working week
• 4 weeks annual leave
• 10 days personal leave (carers/sick/emergency)
• 52 weeks unpaid parental leave
• AFPC minimum wage

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Whats changed? (cont)

• Pecking order AWAs prevail over
• certified agreements
• Operative from lodgement
• Prohibited content is void can be
• removed by OEA on own initiative
• (on notice) or application
• Prohibited content not yet defined will
• be in regulations

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Prohibited content our best guess

• Prohibiting AWAs
• Restricting use of independent contractors or
  on-hire arrangements
• Allowing industrial action during term
• TUTA leave, bargaining fees or paid union
  meetings
• Providing future agreement must be union
  collective agreement
• Mandating union involvement in dispute resolution
• Providing remedy for unfair dismissal
• Other matters proscribed by regulation/legislation
  
• Matters not pertaining

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Prohibited content (cont)

• Doesnt make agreement invalid - terms not
  enforceable
• Cant take industrial action about prohibited
  content
• Penalty of up to 33,000 for seeking to include
  or reckless as to whether the WA contains
  prohibited content.
• unless obtained OEA advice prior to lodging WA
• Reckless not defined. What will amount to
  recklessness? Inadvertence? Incompetence?
  Level of experience relevant?

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Relationship with other workplace agreements

• Only 1 can have effect at a time
• Collective agreement no effect while AWA operates
• Collective agreement prevails over later
  collective agreement lodged within nom. expiry
  date of 1st agreement

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Protected award conditions 3 year transition

• Workplace agreement displaces Cth law, to extent
  of inconsistency
• Workplace agreement entirely displaces State law
  all awards
• Exceptions
• Workplace agreement can call-up other industrial
  instrument (Fed agreement or award) provisions
• If an award would apply, but for the agreement,
  protected award conditions taken to be
  included in agreement, unless expressly
  excluded/modified in whole or part

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Protected award conditions 3 year transition

• Rest breaks
• Incentive-based payments bonuses
• Annual leave loading
• Public holidays
• Allowances
• Loadings for overtime/shift work
• Penalty rates
• Outworker conditions
• Any other provision specified in regulations

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Terminating Workplace Agreements

• Applies to Workplace Agreement made under
  WorkChoices (not existing agreements)
• Replaced by new agreement
• By approval
• - employer to provide information statement
• - 7 days notice
• - on lodging a declaration to terminate
• - AWA gt employee agrees in writing
• - Collective gt majority in favour or union
  agreement

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Terminating Workplace Agreements

• Unilaterally
• - by employer, majority employees, union or
  (where AWA) bargaining agent (note, not
  employee)
• - only after nom. expiry date
• AND
• - where agreement provides for termination, on
  written notice in compliance with agreement
• OR
• - on 90 days written notice gt employer may give
  undertakings as to post-termination conditions
• - subject to undertakings gt revert to AFPC
  Standards, not award
• NB 90 days notice may be given within term of WA
  opportunity to avoid protected action?

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Other points of interest

• Not duress/coercion to offer employment on
  condition employee signs AWA
• Industrial action remains prohibited during life
  of agreement pre-nominal expiry date
• No compulsory anti-discrimination provision
• No mention sighted in Bill of ability of a party
  or intervening party to challenge approval of
  workplace agreement only avenue is Federal
  Court post-approval

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Anticipate the unions response

• Push for
• - roll-over of existing agreements
• - collective AWAs
• - role of union greater role for workplace
  reps
• - role representing employees as bargaining
  agent
• - social / political campaign
• Common law agreements/un-registered arrangements
  on
• - union role / consultation obligations / right
  of entry
• - wage review mechanisms
• Potential for
• - increased health safety concerns
• - constitutional challenge?

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WorkChoices in Not for Profit 100 years of
Industrial Law turned on its head

• Tim Longwill