Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2004 12
INDUSTRIAL LEGISLATION IN 2003
JOELLEN RILEY*
D
espite the promise of cataclysmic change, 2003 saw very few, and very moderate
reforms to industrial laws. The great debates—about a unitary industrial relations
system, greater legal discipline for the building and construction industry, paid maternity
leave, compulsory individual contracts in the higher education sector—left no lasting
footprints in 2003. The most significant reform, achieved at the very end of the year,
was the enactment of more safety net protection for Victorian workers. Otherwise, legislative change represented small incremental steps. This review notes the highlights from
the year’s debates, and explains the changes that were actually introduced.
TROUBLED
WATERS
A retrospective of Parliamentary activity in 2003 might focus on any one of a
number of vigorous debates which stole headlines throughout the year: the threat
of extinction or at least emaciation of state Industrial Relations Commissions
through a federal take-over of unfair dismissal laws; the Cole Royal Commission
and the prospects of subjecting unions and industrial activity to the restrictive
trade practices provisions of the Trade Practices Act 1974 (Cwlth); the paid
maternity leave debate; and the furore over the federal government’s proposal to
link funding of higher education to institutional acceptance of individual contracts for staff. When we come at the end of such a year to review the changes
that were actually cemented into place by the close of business in December, we
see that these were but storms whipping up the surface of a much deeper and
calmer pool of concerns. Very little radical change occurred in 2003, at federal
or state level. Changes to our laws over the year were gradual and incremental
adjustments, many of which promoted the central and abiding concern of labour
law in equity at the workplace.
It is perhaps unwise to draw universal conclusions from this. Publishing deadlines for scholarly journals are unforgiving. It may be that in the time since this
copy was submitted, and the page proofs went to press, tumultuous changes have
occurred. The massive and contentious Building and Construction Industry
Improvement Bill under review by a Senate Committee at the time of writing, may
now have become law, in some form or other. The Workplace Relations Amendment
(Termination of Employment) Bill 2002 may have been resurrected yet again to
institute a nationalised and emasculated unfair terminations system. Perusal
of the past 4 years of reviews suggests this is unlikely. Many of the matters
still worth raising in this report were meat for comment in 2001, 2002 and 2003.
* Senior Lecturer, Faculty of Law, University of Sydney, 175 Phillip Street, Sydney, NSW 2000,
Australia. Email: joellen@law.usyd.edu.au I am grateful to Alex Giudice for his excellent research
assistance, and to Professor Ron McCallum for his advice and encouragement. Any errors or
omissions in this report are my own.
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These include measures to provide greater workplace equity for the low-paid
in Victoria, who lost their state-based award system in the Kennett years;
minor adjustments to clarify inconsistent case law on unfair dismissal protection
for casuals and the legitimacy of compulsory bargaining fees, and marginal
improvements in discrimination law. The more radical (and now quite elderly)
‘third wave’ reforms are still rolling across the surface, to and fro between the
Coalition controlled House of Representatives and a trenchantly independent
Senate.
This review then, will identify the principal debates, but eschew too much
detailed comment on mere proposals. We will focus on those moderate developments which are now part of our law. The usual round-up of brief notes on
developments in the states follows an outline of federal developments.
THE GREAT DEBATES
A unitary industrial relations system
The Workplace Relations Amendment (Termination of Employment) Bill 2002
purported to take advantage of section 109 of the Australian Constitution to
provide that federal unfair dismissal laws should override state laws—at least
within the realm of constitutional legitimacy. The Bill dealt only with unfair
dismissal laws, but was widely recognised as a first step towards a unitary
workplace relations system for Australia. Estimates in the explanatory memorandum anticipated that this would bring about 85 per cent of the Australian
working population under the federal laws. The 15 per cent gap is explained by
the fact that the legislation would be underpinned by the corporations power in
section 51(xx) of the Australian Constitution, so it would apply only to employers
who were constitutional corporations. State employees, and the employees
of sole traders and unincorporated professional partnerships would be
excluded. Outsourcing and privatisation of state functions, the incorporation
of single director/shareholder companies, and moves to allow incorporation of
professional firms may all, over time, have whittled that 15 per cent down to
a more insignificant number. It was a matter of serious concern to the state
industrial commissions (particularly the NSW Commission, which exercises
an active unfair dismissals jurisdiction) that the small and diminishing number
of people covered by state laws would reduce the work load and threaten the
viability of state tribunals.
The Bill was subjected to close scrutiny by the Senate Employment, Workplace
Relations and Education Legislation Committee which reported in March 2003.
Predictably, the Coalition senators’ majority report recommended passing the
legislation, the ALP senators vehemently opposed it, and the Democrats lauded
moves towards a unitary national industrial relations system, but were sceptical
of the benefits of this particular version of that vision. Principal concerns were
the diminution of compensation available to unfairly dismissed small business
workers, the increase in the qualifying period for those workers, and constraints
on the exercise of the Commission’s discretion in determining unfairness.
Ultimately, the bill failed to pass the Senate in a form acceptable the House of
Representatives before rising in December.
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Cole and its consequences
2003 will be remembered as the year of the Cole Royal Commission into the
Building Industry. The Commission’s report generated the Building and
Construction Industry Improvement Bill 2003, which was passed by the House of
Representatives on 4 December and referred to a Senate Employment, Workplace
Relations and Education References Committee, due to report in February
(but not in time for inclusion in this report).
According to the Department of Employment and Workplace Relations’ own
summary published on 18 September 2003, the main elements of the proposed
legislation are:
• The establishment of two new bodies: the Australian Building and
Construction Commissioner (ABCC) to investigate breaches and enforce
the legislation, and the Federal Safety Commissioner (FSC) to promote
‘best practice’ occupational health and safety standards in the construction
industry;
• Further simplification of awards in the industry by reducing existing allowable
award matters;
• ‘Improving’ the bargaining framework—clearly for employers’ benefit—by
further controls on pattern bargaining, imposing mandatory ‘cooling off’
periods after 14 days of protected industrial action and compulsory secret
ballots of employees before protected action can be taken;
• Making all industrial action unlawful, other than that which falls within
the strict parameters of protected industrial action, and allowing industry
participants to recover losses from unlawful action with the assistance of
ABCC appointed loss assessors;
• Extending the freedom of association laws;
• Tightening up ‘right of entry’ provisions; and
• Improving compliance by making organisations responsible for the misdemeanours of their officers, substantially increasing penalties and facilitating
the processes for parties to claim damages.
In all, the Bill as tabled purported to adopt some 120 of the Cole Royal
Commission’s recommendations. Notably, however, the Bill did not adopt the
recommendations that the newly established ABCC should also police secondary
boycott activity and anti-competitive behaviour in the construction industry.
These responsibilities would remain with the Australian Competition and
Consumer Commission (ACCC) that administers the provisions of the Trade
Practices Act 1974 (Cwlth).
According to Forsyth (2003), the Bill represented an intense and explicit attack
on unions, and in many respects paralleled the kinds of measures introduced by
the Thatcher and Major Conservative governments in Britain in the 1980s and
1990s.
Concern with ‘law and order’ and enforcement of the offence provisions of
the Workplace Relations more generally also prompted the tabling of the
Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 (passed by
the House on 19 August) and the Workplace Relations Amendment 2003
(Compliance with Court and Tribunal Orders) passed by House on 13 August.
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These too were passed to a Senate Committee for consideration. Neither passed
the Senate during 2003.
‘Third wave’ threats in the higher education sector
The tertiary education sector saw some national industrial action toward the end
of the year as the government sought to push its higher education reforms through
the Senate with some highly sensitive proposals that university funding should
be linked to ‘industrial reforms’. Specifically, the Minister wanted universities to
agree to encourage staff to accept individual Australian Workplace Agreements.
Ultimately, the matter was resolved when the Higher Education Support Act 2003
(Act No. 149 of 2003, assented to on 19 December) was finally passed with an
explicit disclaimer, asserting that the Minister could not impose any conditions
relating to industrial relations matters when determining funding agreements with
higher education providers: see section 30–25(2B) of the Act.
Stalemate for small business dismissals
The ‘Fair Dismissal’ Bill debate ended in a further stalemate in 2003, with Senate
amendments to the Workplace Relations Amendment (Fair Dismissal) Bill 2002
being rejected by the House, so that the Bill was laid aside on 25 March 2003.
This was the Bill by which the government sought to introduce restrictions
on applications under the unfair dismissal provisions for employees of small
business enterprises, defined as enterprises with fewer than 20 permanent
employees.
REAL
PROGRESS
Protection for Victorian workers
After considerable procrastination (largely the consequence of a stand-off between
the federal and Victorian governments), a few of the most urgent matters raised
by the Independent Report of the Victorian Industrial Relations Taskforce finally
have been addressed, in a combination of federal and Victorian legislation. The
Federal Awards (Uniform System) Act 2003 (Vic), Act No. 18 of 2003, assented to
on 13 May 2003, made a further referral of powers under section 51(xxxvii)
of the Constitution from Victoria to the Commonwealth, to enable the
Commonwealth to legislate to make common rule awards for Victoria.
Subsequently, the federal parliament enacted the Workplace Relations Amendment
(Improved Protection for Victorian Workers) Act 2003, Act No. 137 of 2003, assented
to on 17 December 2003, through which it has exercised the reference of
powers to make some beneficial changes for Victorian workers.
The Victorian Industrial Relations Taskforce, chaired by Professor Ron
McCallum, conducted an extensive inquiry into the effect on low-paid Victorian
workers of the abolition of the Victorian industrial relations by the Kennett
government. The Bracks Victorian government initially responded to the
Taskforce Report by tabling the Fair Employment Bill 2000, but was unable to
secure the support of the upper house to enact the Bill (See Riley 2001: 153–5).
The compromise reached with the Improved Protection Act at the end of 2003 goes
nowhere near as far as the failed Fair Employment Bill, but it does address some
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of the more serious concerns about lack of an adequate safety net for Victorian
workers.
The Improved Protection for Victorian Workers Act introduced three essential
changes: (i) a jurisdiction for the Australian Industrial Relations Commission to
make common rule awards applying to Victorian workers; (ii) an update of the
Schedule 1A minimum leave entitlements to provide carer’s and bereavement leave
entitlements and to recognise pro-rata entitlements for part-time workers; and
(iii) and a new Part XVI to ensure that the minimum safety net conditions
(or any applicable Victorian common rules) are also applied to outworkers in
the textile, clothing and footwear industry in Victoria.
Common rules declarations were already available under section 141 of the
principal Act to cover workers in the Territories, and commonwealth public
servants. Now a new section 493A allows the Commission to make common rule
declarations for Victorian workers. Common rule declarations would have the
same status as federal awards for the purpose of priority with certified agreements
and Australian Workplace Agreements, but would not ‘cover the field’ for the
purpose of any inconsistency with Victorian state laws: see section 493A(4). To
ensure the Victorian government’s representation before the Commission in
any matter involving Victorian workers, a number of amendments have been
made to entitle a Minister of Victoria to intervene in Commission proceedings:
see sections 45(3A), 45(3B), 170MW(1A), 501(2A).
Schedule 1A minimum conditions now include an entitlement to eight days
per year of personal leave (pro-rata for part-time workers), with up to five of
those days being able to be taken as carer’s leave for a member of his immediate
family or household. (Formerly the schedule provided for five days sick leave
annually.) Immediate family is defined to include only a spouse (including a de
facto spouse of the opposite sex), and a child (including an adopted, ex-nuptial
or step-child), parent, grandparent, grandchild or sibling. ‘Household’ is not
defined. Clause 1E includes an entitlement to two day’s bereavement leave on
the death of a family or household member. The annual leave provisions in clause
1A are more detailed, recognising that employees often work irregular part-time
hours. Employees are also now entitled, under clause 1(1) (f) of the Schedule, to
be paid for hours of work in excess of 38 hours.
A small but significant amendment to section 506(2) ensures that the minimum
conditions which are taken to apply to Victorian contract of employment operate
as award entitlements, not as contractual rights, when it comes to enforce.
Formerly, section 506(2) gave an employee a right to ‘take proceedings in an
eligible court to recover money owed under the contract as if it did comply’ with
the statutory minima. This arguably gave the employee rights to claim damages
and other contractual remedies for breach. The new wording stipulates that
sections 178 and 179 will apply ‘as if that minimum term or condition were a
term of an award binding the parties to the contract’. In Byrne v Australian Airlines
Ltd (1995) 131 ALR 422 the High Court of Australia held that terms of an award
did not necessarily have effect as contractual terms and therefore gave no right
to damages. Statutory remedies only applied to enforce award terms. So a breach
of the minimum conditions will expose the employer to the risk of fines under
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section 178, and will entitle an employee to claim any back pay (for up to six
years) under section 179, but no damages for breach of contract.
A new Part XVI, sections 537 to 549, deals with the rights of non-employee
outworkers in the textile, clothing and footwear industry. The provisions encompass rights to minimum rates of pay, equal to those applicable to employees in
the industry (see section 541); powers for inspectors to police minimum pay
standards (section 542), record keeping obligations (section 549) and rights to
recover underpayments and apply for the imposition of penalties, equivalent
to those which apply to employees (sections 543–8).
Fair dismissal of casuals?
The Workplace Relations Amendment (Fair Termination) Act No. 104 of 2003,
assented to on 16 October 2003, was enacted to clarify the operation of the
exclusion of casual workers from the termination of employment provisions in
Part VIA of the principal Act and the Workplace Relations Regulations. The
amending Act has imported the exclusion directly into the principal Act by way
of a new section 170CBA and a rewrite of section 170CC. Section 170CBA
excludes casual employees from the unfair (but not unlawful) termination
provisions, and from the minimum notice provisions in section 170CM.
The rights of people engaged as casuals to access unfair dismissal laws unless
they meet minimum period of service requirements has created some conflicting
and at times confusing case law. Prior to the 2003 amendments, section 170CC
of the Workplace Relations Act 1996 provided for classes of workers to be
excluded from the operation of the termination of employment provisions by
regulation. Among the exclusions was section 170CC(1)(c) ‘employees engaged
on a casual basis for a short period’. The Workplace Relations Regulations, in
Regulation 30B(1)(d), purported to exclude ‘a casual employee engaged for a short
period within the meaning of sub-regulation (3)’, which in turn deemed a casual
employee to be engaged for a short period unless they had been engaged ‘on a
regular and systematic basis for a sequence of periods of employment for at least
12 months’, and had a ‘reasonable expectation of continuing employment’.
Disputes over the operation of these provisions have identified a particular
problem: when is a person truly a casual? Under the old common law, a ‘casual’
contract of employment presumed that each individual shift constituted a discrete
hiring, with the contract terminating by effluxion of time at the conclusion of
the stipulated shift. Australian industrial practice has come to regard casual
engagement as an alternative form of hiring to fill long-term positions. If a
person is engaged according to a predictable roster system, and is required to
give advance notice of availability and to seek permission for periods of leave,
they are in many respects indistinguishable from permanent part-time staff. The
casual loading provided in many awards, designed to cash out annual and sick
leave benefits, is arguably the only significant difference.
In a case on an earlier version of the legislation and regulations, Moore J
in the Industrial Relations Court of Australia held that a person engaged on a
systematic basis, who was obliged to obtain permission for periods of leave, etc.,
was not a ‘casual’ for the purposes of the Industrial Relations Act 1988 and
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Regulations. Moore J relied on the fact that the legislation was underpinned
constitutionally by the external affairs power, and referred specifically to the
International Labour Organisation Convention on Termination of Employment
at the Initiative of the Employer, which formed schedule 10 of the principal Act:
see Reed v Blue Line Cruises (1996) 73 IR 420. This meant that interpretation of
what constituted casual employment was to be drawn from the terms of the
Convention. This view was, however, rejected by a full bench of the Australian
Industrial Relations Commission in Graham v Blue Suits Pty Ltd trading as
Toongabbie Hotel, Print S0282, 3 December 1999. In Blue Suits the Commission
held that the new legislation was no longer based on the ILO convention, but
was underpinned by other constitutional powers. Hence, the ordinary industrial
meaning of casual, as it has been adopted in many industrial awards, was the
appropriate meaning. Consequently, a person who had been engaged on a regular
and systematic casual roster was held to be excluded from the termination of
employment provisions because he had not been so engaged for a period of at
least 12 months.
This did not, however, resolve the debate entirely, because in Hamzy v Tricon
International Restaurants trading as KFC (2001) 115 FCR 78, the full Federal
Court held that Regulations 30B(1)(d) and 30B(3) were invalid and so had no
operation at all. This was because the first limb of Reg 30B(3) purported to exclude
all casuals (even those with more than 10 years’ association with an employer)
unless they had worked on a regular and systematic basis, and had a reasonable
expectation of continuity. This was held to be in excess of the power conferred
by the principal Act in section 170CC.
The government acted promptly to table amended regulations soon after
the Hamzy decision. The new Regulation 30B, which excised reference to
‘regular and systematic work’, was tested in Cetin v Ripon Pty Ltd trading
as Parkview Hotel, PR938639, 25 September 2003, and this time a full bench
of the Australian Industrial Relations Commission found that a hotel worker
who did regular nightly shifts on a casual wage was not excluded by the
regulations, despite working for less than eight months. The Commission based
this decision on the fact that the Regulations had changed since Blue Suits, and
now did not expressly acknowledge that a person doing regular and systematic
work could still be a casual, and also on a finding in Hamzy that there was no
material difference in meaning between the expressions ‘casual employee’ and
‘employee engaged on a casual basis’. This finding meant that words in the new
Regulation 30B(1)(d) had the same meaning as the words in Article 2(1) (c)
of the ILO Convention reproduced in Schedule 10 of the principal Act.
Consequently, Moore J’s findings in Reed v Blue Line Cruises should again be
adopted.
The government sought the enactment of the Fair Termination Bill as a final
answer to the problem. The amendments opt for the approach taken in the Blue
Suits case. The principal Act has been amended to ensure that employees engaged
on a casual basis cannot make claims for unfair dismissal until they have been
engaged for at least 12 months on a regular and systematic basis. Subsection
170CBA(3A) allows two shorter periods of casual employment with the same
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employer to be accumulated, so long as no more than three months elapses
between the engagements. The title of the Act (described as ‘Orwellian’ by the
ALP Shadow Minister for Workplace Relations, Craig Emerson) implies that
harsh, unjust or unreasonable dismissal of a person engaged on a casual basis prior
to clocking up 12 months service is a ‘fair termination’. It remains to be seen
what the judges will make of the new provisions.
A new section 170CCA makes these changes retrospective.
Bargaining fees
The debate over whether union claims for compulsory bargaining fees are a
proper subject of enterprise bargaining, justifying protected industrial action,
or constitute infringement of the Freedom of Association provisions in Part XA
of the Workplace Relations Act 1996 (Cwlth), has been conclusively resolved by
federal legislation. Unions had campaigned for such fees as a means of dealing
with the ‘free-rider’ effect created when non-unionists who had not made any
financial contribution to a campaign nevertheless benefited from improved wages
and conditions won by union bargaining. Federal Court and Australian Industrial
Relations Commission decisions deciding whether a claim that an employer
must collect a bargaining fee from non-unionists on behalf of the union is an
‘industrial matter’, pertaining to the relationship between the employer as an
employer and its employees, have produced some inconsistent results (Catanzariti
& Sharif 2003, 174–9). The Federal court has held that the existence of a
dubious bargaining fee claim among a number of claims in a proposed enterprise agreement, did not preclude industrial action taken in support of the
agreement from enjoying the protection afforded by section 170ML of the
Workplace Relations Act 1996 (Cwlth): see the decision of Merkel J in Electrolux
Home Products Pty Ltd v Australian Workers Union [2002] FCA 1600, upheld by
the Full Federal Court in Automotive, Foods, Metals, Engineering, Printing and
Kindred Industries Union v Electrolux Home Products Pty Limited [2002] FCAFC
199, discussed in Catanzariti & Sharif 2002: 213–6. This potential source of industrial disputation has now been killed off by the Workplace Relations Amendment
(Prohibition of Compulsory Union Fees) 2003, Act No. 20 of 2003, assented to on
11 April 2003. The government’s bill won the support of the Democrats in the
Senate after a Full Bench of the Australian Industrial Relations Commission
rejected the union’s arguments in support of such fees in the Bargaining Fees Case
(PR926554, 10 January 2003).
The Act adds failure to pay or agree to pay a bargaining fee as a ‘prohibited
reason’ under section 298L of the Freedom Association provisions in Part XA
of the Workplace Relations Act 1996 (Cwlth), and also amends sections 298Q and
298S to outlaw industrial action taken for the purpose of coercing an employer
to pay bargaining fees. New sections 298SA and 298SB prohibit industrial associations from demanding bargaining fees or taking any other coercive action. A
new subsection 298Z(5) defines an ‘objectionable provision’ which may not be
included in any enterprise bargain to include any provision (however described)
that has the effect of requiring payment of a bargaining services fee. It is still
possible, however, for unions to charge bargaining fees for services, by directly
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negotiating a contract for providing bargaining agent services to non-members:
see section 298SBA. In negotiating these arrangements, however, unions will need
to be careful not to infringe a new section 298SC that prohibits the making of
false or misleading representations which would imply that the employee is
obliged to agree to the fee or join the union.
Discrimination
A woman’s entitlement to work while pregnant or breastfeeding has been clarified
by some brief amendments to the Sex Discrimination Act 1984 made by the Sex
Discrimination Amendment (Pregnancy and Work) 2003 Act No. 103 of 2003,
assented to on 15 October 2003. The Act represents the government’s response
to the Halliday Report, Pregnant and productive: It’s a right not a privilege to work
while pregnant. Three of the Report’s 12 recommendations have been implemented. The amending Act inserts a new sub-section (1A) into section 5, to state
the patently obvious fact that ‘breastfeeding (including the act of expressing milk)
is a characteristic that appertains generally to women’. (One would have thought
that the ‘generally’ was otiose here—but that is legislative drafting for you.) A
replacement of subsection 27(1) specifies that it is unlawful to determine not to
offer a job to a woman because she is or is likely to fall pregnant, so it is also
unlawful to ask a woman whether she is pregnant during an interview, if the
purpose of the question is to decide whether to offer her the job. Questions are
lawful, however, if they are for the purposes of fulfilling occupational health and
safety obligations.
Also on the 2003 agenda
More discrimination laws
The ageing of Australia’s taxpaying population, and the problems of adequately
superannuating retirees was an issue of public debate throughout 2003, with the
chief executive officer of the Westpac Banking Corporation, David Morgan,
weighing in with strong recommendations about the importance of keeping older
Australians in the workforce. In the shadow of this debate, the Age Discrimination
Bill 2003 was passed by the House of Representatives on 26 November, but was
not passed by the Senate before rising for the year. If enacted, this Bill would
introduce a further statute in the raft of legislation supporting Australian’s rights
to work, regardless of traditional prejudices. The protections in the Bill
would apply for the benefit of employees, commission agents, contract workers
and partners in partnerships of more than six people. There is, however, an
important exemption in clause 25 of the Bill for ‘youth wages’—that is, it would
still be lawful to choose to employ an under 21-year-old on the basis that the
cost of employing that person will be lower.
A late addition to business for the year was the Disability Discrimination
Amendment Bill 2003, introduced into the house on 3 December and referred
directly to the Senate Legal and Constitutional Legislation Committee. The Bill
proposes to exclude addiction to prohibited drugs (but not any disabilities
arising out of drug addiction, e.g. HIV infection or hepatitis C) from the
protection of the Disability Discrimination Act 1992 (Cwlth), and also from
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the unlawful dismissal provisions in section 170CK of the Workplace Relations Act
1996 (Cwlth). The Committee had not reported in time for inclusion of its views
in this report.
Miscellaneous matters
Media controversy early in the year over the sackings from their regular jobs of
some volunteer firefighters prompted the enactment of the Workplace Relations
Amendment (Protection for Emergency Management Volunteers) Act No. 76 of 2003,
assented to on 15 July 2003. Subsection 170CK(2) of the principal Act now makes
it unlawful to dismiss a person for their temporary absence from work because
of their participation in a voluntary emergency management activity, as long as
the absence was ‘reasonable having regard to all the circumstances’, and as long
as the activity involved an emergency or natural disaster, and the employee
was a member or member-like associate of a recognised emergency management
body.
Corporations Amendment (Repayment of Directors’ Bonuses) Act 2003, Act No. 25
of 2003, assented to on 11 April 2003, marks another small step in addressing
concerns about corporate responsibility, especially where companies become
insolvent, owing employee entitlements. Now that the government picks up the
bill for a certain level of lost entitlements under the General Employee
Entitlements Redundancy Scheme (GEERS), there has been an incentive to
legislate to claw back excessive directors’ bonuses and the benefits of any other
‘unreasonable director-related transactions’ entered into within four years of a
company becoming insolvent: see Corporations Act 2001 (Cwlth) section 588FDA
and subsection 588FE(6A).
Readers with a specialist interest in employee superannuation schemes should
note that the Superannuation (Government Contribution for Low Income Earners)
2003 Act No. 110 received assent on 12 November 2003.
Finally, toward the end of the year the Minister heralded a proposal for a
Workplace Relations Amendment (Restructure and Renumber) Bill to commence the
process of rewriting the Act in ‘plain English’. Older practitioners who know all
the sections from 170BA to 170WKA by heart may not be too enthusiastic in
welcoming such a simplification. At the time of writing no copy of the proposed
rewrite was available.
AROUND
THE STATES AND TERRITORIES
Australian Capital Territory
The Crimes (Industrial Manslaughter) Amendment Bill was introduced to amend
the Crimes Act to include an offence of industrial manslaughter. The Bill proposes criminal sanctions for employer companies and senior corporate officers
who negligently cause the death of a worker. The Bill had not been enacted at
the end of 2003.
New South Wales
In New South Wales, work safety was also high on the agenda, with unions
campaigning for industrial manslaughter legislation. However, no specific
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proposals for amendments to the Occupational Health and Safety Act 2000 or the
Crimes Act were tabled during the year.
The Industrial Relations Amendment (Public Vehicles and Carriers) Bill 2003 was
introduced to amend the Industrial Relations Act 1996 to extend the exclusion of
Chapter 6 of the Industrial Relations Act 1996—Public Vehicles and Carriers—
from the restrictive trade practices provisions of Part IV of the Trade Practices
Act 1974 (Cwlth).
The Industrial Relations Amendment (Adoption Leave) Bill 2003 passed both
houses and was awaiting assent at the end of 2003. This small amendment
provides that adoption leave is for the adoption of a child under 18.
Queensland
The Workers Compensation and Rehabilitation Act was passed on 27 March 2003.
This legislation restructures Queensland’s work cover arrangements, and
provides for the establishment of workers compensation advisory committees.
South Australia
During 2003, the South Australian government continued to inwardly digest the
implications of the 2002 Stevens Report (see Riley 2003: 163–4). No general
industrial law reforms were introduced. The Occupational Health, Safety and Welfare
(Safework SA) Amendment Bill 2003 was introduced as a measure to implement
a recommendation of the Stanley Report’s review of state occupational health
and safety laws, to remove duplication created by a splitting of responsibilities
between Workplace Services and WorkCover.
Victorian developments are noted above. No changes occurred in Tasmania
or the Northern Territory during 2003.
REFERENCES
Catanzariti J, Sharif Y (2002) Major Tribunal Decisions in 2001. Journal of Industrial Relations 44 (2),
211–27.
Catanzariti J, Sharif Y (2003) Major Tribunal Decisions in 2002. Journal of Industrial Relations 45 (2),
166–83.
Forsyth A (2003) A Bill for an Act to Transform Australian’s Industrial Relations Culture: Recent
Legislative Initiatives at the Federal Level. Paper presented at the Queensland Industrial Relations
Society Annual Conference, 26 September 2003. See http://www.workplaceexpress.com.au/
Accessed 29 September 2003.
Riley J (2001) Industrial Legislation in 2000. Journal of Industrial Relations 43 (2), 148–60.
Riley J (2002) Industrial Legislation in 2001. Journal of Industrial Relations 44 (2), 198–210.
Riley J (2003) Industrial Legislation in 2002. Journal of Industrial Relations 45 (2) 151–65.
JOELLEN RILEY*
D
espite the promise of cataclysmic change, 2003 saw very few, and very moderate
reforms to industrial laws. The great debates—about a unitary industrial relations
system, greater legal discipline for the building and construction industry, paid maternity
leave, compulsory individual contracts in the higher education sector—left no lasting
footprints in 2003. The most significant reform, achieved at the very end of the year,
was the enactment of more safety net protection for Victorian workers. Otherwise, legislative change represented small incremental steps. This review notes the highlights from
the year’s debates, and explains the changes that were actually introduced.
TROUBLED
WATERS
A retrospective of Parliamentary activity in 2003 might focus on any one of a
number of vigorous debates which stole headlines throughout the year: the threat
of extinction or at least emaciation of state Industrial Relations Commissions
through a federal take-over of unfair dismissal laws; the Cole Royal Commission
and the prospects of subjecting unions and industrial activity to the restrictive
trade practices provisions of the Trade Practices Act 1974 (Cwlth); the paid
maternity leave debate; and the furore over the federal government’s proposal to
link funding of higher education to institutional acceptance of individual contracts for staff. When we come at the end of such a year to review the changes
that were actually cemented into place by the close of business in December, we
see that these were but storms whipping up the surface of a much deeper and
calmer pool of concerns. Very little radical change occurred in 2003, at federal
or state level. Changes to our laws over the year were gradual and incremental
adjustments, many of which promoted the central and abiding concern of labour
law in equity at the workplace.
It is perhaps unwise to draw universal conclusions from this. Publishing deadlines for scholarly journals are unforgiving. It may be that in the time since this
copy was submitted, and the page proofs went to press, tumultuous changes have
occurred. The massive and contentious Building and Construction Industry
Improvement Bill under review by a Senate Committee at the time of writing, may
now have become law, in some form or other. The Workplace Relations Amendment
(Termination of Employment) Bill 2002 may have been resurrected yet again to
institute a nationalised and emasculated unfair terminations system. Perusal
of the past 4 years of reviews suggests this is unlikely. Many of the matters
still worth raising in this report were meat for comment in 2001, 2002 and 2003.
* Senior Lecturer, Faculty of Law, University of Sydney, 175 Phillip Street, Sydney, NSW 2000,
Australia. Email: joellen@law.usyd.edu.au I am grateful to Alex Giudice for his excellent research
assistance, and to Professor Ron McCallum for his advice and encouragement. Any errors or
omissions in this report are my own.
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These include measures to provide greater workplace equity for the low-paid
in Victoria, who lost their state-based award system in the Kennett years;
minor adjustments to clarify inconsistent case law on unfair dismissal protection
for casuals and the legitimacy of compulsory bargaining fees, and marginal
improvements in discrimination law. The more radical (and now quite elderly)
‘third wave’ reforms are still rolling across the surface, to and fro between the
Coalition controlled House of Representatives and a trenchantly independent
Senate.
This review then, will identify the principal debates, but eschew too much
detailed comment on mere proposals. We will focus on those moderate developments which are now part of our law. The usual round-up of brief notes on
developments in the states follows an outline of federal developments.
THE GREAT DEBATES
A unitary industrial relations system
The Workplace Relations Amendment (Termination of Employment) Bill 2002
purported to take advantage of section 109 of the Australian Constitution to
provide that federal unfair dismissal laws should override state laws—at least
within the realm of constitutional legitimacy. The Bill dealt only with unfair
dismissal laws, but was widely recognised as a first step towards a unitary
workplace relations system for Australia. Estimates in the explanatory memorandum anticipated that this would bring about 85 per cent of the Australian
working population under the federal laws. The 15 per cent gap is explained by
the fact that the legislation would be underpinned by the corporations power in
section 51(xx) of the Australian Constitution, so it would apply only to employers
who were constitutional corporations. State employees, and the employees
of sole traders and unincorporated professional partnerships would be
excluded. Outsourcing and privatisation of state functions, the incorporation
of single director/shareholder companies, and moves to allow incorporation of
professional firms may all, over time, have whittled that 15 per cent down to
a more insignificant number. It was a matter of serious concern to the state
industrial commissions (particularly the NSW Commission, which exercises
an active unfair dismissals jurisdiction) that the small and diminishing number
of people covered by state laws would reduce the work load and threaten the
viability of state tribunals.
The Bill was subjected to close scrutiny by the Senate Employment, Workplace
Relations and Education Legislation Committee which reported in March 2003.
Predictably, the Coalition senators’ majority report recommended passing the
legislation, the ALP senators vehemently opposed it, and the Democrats lauded
moves towards a unitary national industrial relations system, but were sceptical
of the benefits of this particular version of that vision. Principal concerns were
the diminution of compensation available to unfairly dismissed small business
workers, the increase in the qualifying period for those workers, and constraints
on the exercise of the Commission’s discretion in determining unfairness.
Ultimately, the bill failed to pass the Senate in a form acceptable the House of
Representatives before rising in December.
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Cole and its consequences
2003 will be remembered as the year of the Cole Royal Commission into the
Building Industry. The Commission’s report generated the Building and
Construction Industry Improvement Bill 2003, which was passed by the House of
Representatives on 4 December and referred to a Senate Employment, Workplace
Relations and Education References Committee, due to report in February
(but not in time for inclusion in this report).
According to the Department of Employment and Workplace Relations’ own
summary published on 18 September 2003, the main elements of the proposed
legislation are:
• The establishment of two new bodies: the Australian Building and
Construction Commissioner (ABCC) to investigate breaches and enforce
the legislation, and the Federal Safety Commissioner (FSC) to promote
‘best practice’ occupational health and safety standards in the construction
industry;
• Further simplification of awards in the industry by reducing existing allowable
award matters;
• ‘Improving’ the bargaining framework—clearly for employers’ benefit—by
further controls on pattern bargaining, imposing mandatory ‘cooling off’
periods after 14 days of protected industrial action and compulsory secret
ballots of employees before protected action can be taken;
• Making all industrial action unlawful, other than that which falls within
the strict parameters of protected industrial action, and allowing industry
participants to recover losses from unlawful action with the assistance of
ABCC appointed loss assessors;
• Extending the freedom of association laws;
• Tightening up ‘right of entry’ provisions; and
• Improving compliance by making organisations responsible for the misdemeanours of their officers, substantially increasing penalties and facilitating
the processes for parties to claim damages.
In all, the Bill as tabled purported to adopt some 120 of the Cole Royal
Commission’s recommendations. Notably, however, the Bill did not adopt the
recommendations that the newly established ABCC should also police secondary
boycott activity and anti-competitive behaviour in the construction industry.
These responsibilities would remain with the Australian Competition and
Consumer Commission (ACCC) that administers the provisions of the Trade
Practices Act 1974 (Cwlth).
According to Forsyth (2003), the Bill represented an intense and explicit attack
on unions, and in many respects paralleled the kinds of measures introduced by
the Thatcher and Major Conservative governments in Britain in the 1980s and
1990s.
Concern with ‘law and order’ and enforcement of the offence provisions of
the Workplace Relations more generally also prompted the tabling of the
Workplace Relations Amendment (Codifying Contempt Offences) Bill 2003 (passed by
the House on 19 August) and the Workplace Relations Amendment 2003
(Compliance with Court and Tribunal Orders) passed by House on 13 August.
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These too were passed to a Senate Committee for consideration. Neither passed
the Senate during 2003.
‘Third wave’ threats in the higher education sector
The tertiary education sector saw some national industrial action toward the end
of the year as the government sought to push its higher education reforms through
the Senate with some highly sensitive proposals that university funding should
be linked to ‘industrial reforms’. Specifically, the Minister wanted universities to
agree to encourage staff to accept individual Australian Workplace Agreements.
Ultimately, the matter was resolved when the Higher Education Support Act 2003
(Act No. 149 of 2003, assented to on 19 December) was finally passed with an
explicit disclaimer, asserting that the Minister could not impose any conditions
relating to industrial relations matters when determining funding agreements with
higher education providers: see section 30–25(2B) of the Act.
Stalemate for small business dismissals
The ‘Fair Dismissal’ Bill debate ended in a further stalemate in 2003, with Senate
amendments to the Workplace Relations Amendment (Fair Dismissal) Bill 2002
being rejected by the House, so that the Bill was laid aside on 25 March 2003.
This was the Bill by which the government sought to introduce restrictions
on applications under the unfair dismissal provisions for employees of small
business enterprises, defined as enterprises with fewer than 20 permanent
employees.
REAL
PROGRESS
Protection for Victorian workers
After considerable procrastination (largely the consequence of a stand-off between
the federal and Victorian governments), a few of the most urgent matters raised
by the Independent Report of the Victorian Industrial Relations Taskforce finally
have been addressed, in a combination of federal and Victorian legislation. The
Federal Awards (Uniform System) Act 2003 (Vic), Act No. 18 of 2003, assented to
on 13 May 2003, made a further referral of powers under section 51(xxxvii)
of the Constitution from Victoria to the Commonwealth, to enable the
Commonwealth to legislate to make common rule awards for Victoria.
Subsequently, the federal parliament enacted the Workplace Relations Amendment
(Improved Protection for Victorian Workers) Act 2003, Act No. 137 of 2003, assented
to on 17 December 2003, through which it has exercised the reference of
powers to make some beneficial changes for Victorian workers.
The Victorian Industrial Relations Taskforce, chaired by Professor Ron
McCallum, conducted an extensive inquiry into the effect on low-paid Victorian
workers of the abolition of the Victorian industrial relations by the Kennett
government. The Bracks Victorian government initially responded to the
Taskforce Report by tabling the Fair Employment Bill 2000, but was unable to
secure the support of the upper house to enact the Bill (See Riley 2001: 153–5).
The compromise reached with the Improved Protection Act at the end of 2003 goes
nowhere near as far as the failed Fair Employment Bill, but it does address some
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of the more serious concerns about lack of an adequate safety net for Victorian
workers.
The Improved Protection for Victorian Workers Act introduced three essential
changes: (i) a jurisdiction for the Australian Industrial Relations Commission to
make common rule awards applying to Victorian workers; (ii) an update of the
Schedule 1A minimum leave entitlements to provide carer’s and bereavement leave
entitlements and to recognise pro-rata entitlements for part-time workers; and
(iii) and a new Part XVI to ensure that the minimum safety net conditions
(or any applicable Victorian common rules) are also applied to outworkers in
the textile, clothing and footwear industry in Victoria.
Common rules declarations were already available under section 141 of the
principal Act to cover workers in the Territories, and commonwealth public
servants. Now a new section 493A allows the Commission to make common rule
declarations for Victorian workers. Common rule declarations would have the
same status as federal awards for the purpose of priority with certified agreements
and Australian Workplace Agreements, but would not ‘cover the field’ for the
purpose of any inconsistency with Victorian state laws: see section 493A(4). To
ensure the Victorian government’s representation before the Commission in
any matter involving Victorian workers, a number of amendments have been
made to entitle a Minister of Victoria to intervene in Commission proceedings:
see sections 45(3A), 45(3B), 170MW(1A), 501(2A).
Schedule 1A minimum conditions now include an entitlement to eight days
per year of personal leave (pro-rata for part-time workers), with up to five of
those days being able to be taken as carer’s leave for a member of his immediate
family or household. (Formerly the schedule provided for five days sick leave
annually.) Immediate family is defined to include only a spouse (including a de
facto spouse of the opposite sex), and a child (including an adopted, ex-nuptial
or step-child), parent, grandparent, grandchild or sibling. ‘Household’ is not
defined. Clause 1E includes an entitlement to two day’s bereavement leave on
the death of a family or household member. The annual leave provisions in clause
1A are more detailed, recognising that employees often work irregular part-time
hours. Employees are also now entitled, under clause 1(1) (f) of the Schedule, to
be paid for hours of work in excess of 38 hours.
A small but significant amendment to section 506(2) ensures that the minimum
conditions which are taken to apply to Victorian contract of employment operate
as award entitlements, not as contractual rights, when it comes to enforce.
Formerly, section 506(2) gave an employee a right to ‘take proceedings in an
eligible court to recover money owed under the contract as if it did comply’ with
the statutory minima. This arguably gave the employee rights to claim damages
and other contractual remedies for breach. The new wording stipulates that
sections 178 and 179 will apply ‘as if that minimum term or condition were a
term of an award binding the parties to the contract’. In Byrne v Australian Airlines
Ltd (1995) 131 ALR 422 the High Court of Australia held that terms of an award
did not necessarily have effect as contractual terms and therefore gave no right
to damages. Statutory remedies only applied to enforce award terms. So a breach
of the minimum conditions will expose the employer to the risk of fines under
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section 178, and will entitle an employee to claim any back pay (for up to six
years) under section 179, but no damages for breach of contract.
A new Part XVI, sections 537 to 549, deals with the rights of non-employee
outworkers in the textile, clothing and footwear industry. The provisions encompass rights to minimum rates of pay, equal to those applicable to employees in
the industry (see section 541); powers for inspectors to police minimum pay
standards (section 542), record keeping obligations (section 549) and rights to
recover underpayments and apply for the imposition of penalties, equivalent
to those which apply to employees (sections 543–8).
Fair dismissal of casuals?
The Workplace Relations Amendment (Fair Termination) Act No. 104 of 2003,
assented to on 16 October 2003, was enacted to clarify the operation of the
exclusion of casual workers from the termination of employment provisions in
Part VIA of the principal Act and the Workplace Relations Regulations. The
amending Act has imported the exclusion directly into the principal Act by way
of a new section 170CBA and a rewrite of section 170CC. Section 170CBA
excludes casual employees from the unfair (but not unlawful) termination
provisions, and from the minimum notice provisions in section 170CM.
The rights of people engaged as casuals to access unfair dismissal laws unless
they meet minimum period of service requirements has created some conflicting
and at times confusing case law. Prior to the 2003 amendments, section 170CC
of the Workplace Relations Act 1996 provided for classes of workers to be
excluded from the operation of the termination of employment provisions by
regulation. Among the exclusions was section 170CC(1)(c) ‘employees engaged
on a casual basis for a short period’. The Workplace Relations Regulations, in
Regulation 30B(1)(d), purported to exclude ‘a casual employee engaged for a short
period within the meaning of sub-regulation (3)’, which in turn deemed a casual
employee to be engaged for a short period unless they had been engaged ‘on a
regular and systematic basis for a sequence of periods of employment for at least
12 months’, and had a ‘reasonable expectation of continuing employment’.
Disputes over the operation of these provisions have identified a particular
problem: when is a person truly a casual? Under the old common law, a ‘casual’
contract of employment presumed that each individual shift constituted a discrete
hiring, with the contract terminating by effluxion of time at the conclusion of
the stipulated shift. Australian industrial practice has come to regard casual
engagement as an alternative form of hiring to fill long-term positions. If a
person is engaged according to a predictable roster system, and is required to
give advance notice of availability and to seek permission for periods of leave,
they are in many respects indistinguishable from permanent part-time staff. The
casual loading provided in many awards, designed to cash out annual and sick
leave benefits, is arguably the only significant difference.
In a case on an earlier version of the legislation and regulations, Moore J
in the Industrial Relations Court of Australia held that a person engaged on a
systematic basis, who was obliged to obtain permission for periods of leave, etc.,
was not a ‘casual’ for the purposes of the Industrial Relations Act 1988 and
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Regulations. Moore J relied on the fact that the legislation was underpinned
constitutionally by the external affairs power, and referred specifically to the
International Labour Organisation Convention on Termination of Employment
at the Initiative of the Employer, which formed schedule 10 of the principal Act:
see Reed v Blue Line Cruises (1996) 73 IR 420. This meant that interpretation of
what constituted casual employment was to be drawn from the terms of the
Convention. This view was, however, rejected by a full bench of the Australian
Industrial Relations Commission in Graham v Blue Suits Pty Ltd trading as
Toongabbie Hotel, Print S0282, 3 December 1999. In Blue Suits the Commission
held that the new legislation was no longer based on the ILO convention, but
was underpinned by other constitutional powers. Hence, the ordinary industrial
meaning of casual, as it has been adopted in many industrial awards, was the
appropriate meaning. Consequently, a person who had been engaged on a regular
and systematic casual roster was held to be excluded from the termination of
employment provisions because he had not been so engaged for a period of at
least 12 months.
This did not, however, resolve the debate entirely, because in Hamzy v Tricon
International Restaurants trading as KFC (2001) 115 FCR 78, the full Federal
Court held that Regulations 30B(1)(d) and 30B(3) were invalid and so had no
operation at all. This was because the first limb of Reg 30B(3) purported to exclude
all casuals (even those with more than 10 years’ association with an employer)
unless they had worked on a regular and systematic basis, and had a reasonable
expectation of continuity. This was held to be in excess of the power conferred
by the principal Act in section 170CC.
The government acted promptly to table amended regulations soon after
the Hamzy decision. The new Regulation 30B, which excised reference to
‘regular and systematic work’, was tested in Cetin v Ripon Pty Ltd trading
as Parkview Hotel, PR938639, 25 September 2003, and this time a full bench
of the Australian Industrial Relations Commission found that a hotel worker
who did regular nightly shifts on a casual wage was not excluded by the
regulations, despite working for less than eight months. The Commission based
this decision on the fact that the Regulations had changed since Blue Suits, and
now did not expressly acknowledge that a person doing regular and systematic
work could still be a casual, and also on a finding in Hamzy that there was no
material difference in meaning between the expressions ‘casual employee’ and
‘employee engaged on a casual basis’. This finding meant that words in the new
Regulation 30B(1)(d) had the same meaning as the words in Article 2(1) (c)
of the ILO Convention reproduced in Schedule 10 of the principal Act.
Consequently, Moore J’s findings in Reed v Blue Line Cruises should again be
adopted.
The government sought the enactment of the Fair Termination Bill as a final
answer to the problem. The amendments opt for the approach taken in the Blue
Suits case. The principal Act has been amended to ensure that employees engaged
on a casual basis cannot make claims for unfair dismissal until they have been
engaged for at least 12 months on a regular and systematic basis. Subsection
170CBA(3A) allows two shorter periods of casual employment with the same
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employer to be accumulated, so long as no more than three months elapses
between the engagements. The title of the Act (described as ‘Orwellian’ by the
ALP Shadow Minister for Workplace Relations, Craig Emerson) implies that
harsh, unjust or unreasonable dismissal of a person engaged on a casual basis prior
to clocking up 12 months service is a ‘fair termination’. It remains to be seen
what the judges will make of the new provisions.
A new section 170CCA makes these changes retrospective.
Bargaining fees
The debate over whether union claims for compulsory bargaining fees are a
proper subject of enterprise bargaining, justifying protected industrial action,
or constitute infringement of the Freedom of Association provisions in Part XA
of the Workplace Relations Act 1996 (Cwlth), has been conclusively resolved by
federal legislation. Unions had campaigned for such fees as a means of dealing
with the ‘free-rider’ effect created when non-unionists who had not made any
financial contribution to a campaign nevertheless benefited from improved wages
and conditions won by union bargaining. Federal Court and Australian Industrial
Relations Commission decisions deciding whether a claim that an employer
must collect a bargaining fee from non-unionists on behalf of the union is an
‘industrial matter’, pertaining to the relationship between the employer as an
employer and its employees, have produced some inconsistent results (Catanzariti
& Sharif 2003, 174–9). The Federal court has held that the existence of a
dubious bargaining fee claim among a number of claims in a proposed enterprise agreement, did not preclude industrial action taken in support of the
agreement from enjoying the protection afforded by section 170ML of the
Workplace Relations Act 1996 (Cwlth): see the decision of Merkel J in Electrolux
Home Products Pty Ltd v Australian Workers Union [2002] FCA 1600, upheld by
the Full Federal Court in Automotive, Foods, Metals, Engineering, Printing and
Kindred Industries Union v Electrolux Home Products Pty Limited [2002] FCAFC
199, discussed in Catanzariti & Sharif 2002: 213–6. This potential source of industrial disputation has now been killed off by the Workplace Relations Amendment
(Prohibition of Compulsory Union Fees) 2003, Act No. 20 of 2003, assented to on
11 April 2003. The government’s bill won the support of the Democrats in the
Senate after a Full Bench of the Australian Industrial Relations Commission
rejected the union’s arguments in support of such fees in the Bargaining Fees Case
(PR926554, 10 January 2003).
The Act adds failure to pay or agree to pay a bargaining fee as a ‘prohibited
reason’ under section 298L of the Freedom Association provisions in Part XA
of the Workplace Relations Act 1996 (Cwlth), and also amends sections 298Q and
298S to outlaw industrial action taken for the purpose of coercing an employer
to pay bargaining fees. New sections 298SA and 298SB prohibit industrial associations from demanding bargaining fees or taking any other coercive action. A
new subsection 298Z(5) defines an ‘objectionable provision’ which may not be
included in any enterprise bargain to include any provision (however described)
that has the effect of requiring payment of a bargaining services fee. It is still
possible, however, for unions to charge bargaining fees for services, by directly
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negotiating a contract for providing bargaining agent services to non-members:
see section 298SBA. In negotiating these arrangements, however, unions will need
to be careful not to infringe a new section 298SC that prohibits the making of
false or misleading representations which would imply that the employee is
obliged to agree to the fee or join the union.
Discrimination
A woman’s entitlement to work while pregnant or breastfeeding has been clarified
by some brief amendments to the Sex Discrimination Act 1984 made by the Sex
Discrimination Amendment (Pregnancy and Work) 2003 Act No. 103 of 2003,
assented to on 15 October 2003. The Act represents the government’s response
to the Halliday Report, Pregnant and productive: It’s a right not a privilege to work
while pregnant. Three of the Report’s 12 recommendations have been implemented. The amending Act inserts a new sub-section (1A) into section 5, to state
the patently obvious fact that ‘breastfeeding (including the act of expressing milk)
is a characteristic that appertains generally to women’. (One would have thought
that the ‘generally’ was otiose here—but that is legislative drafting for you.) A
replacement of subsection 27(1) specifies that it is unlawful to determine not to
offer a job to a woman because she is or is likely to fall pregnant, so it is also
unlawful to ask a woman whether she is pregnant during an interview, if the
purpose of the question is to decide whether to offer her the job. Questions are
lawful, however, if they are for the purposes of fulfilling occupational health and
safety obligations.
Also on the 2003 agenda
More discrimination laws
The ageing of Australia’s taxpaying population, and the problems of adequately
superannuating retirees was an issue of public debate throughout 2003, with the
chief executive officer of the Westpac Banking Corporation, David Morgan,
weighing in with strong recommendations about the importance of keeping older
Australians in the workforce. In the shadow of this debate, the Age Discrimination
Bill 2003 was passed by the House of Representatives on 26 November, but was
not passed by the Senate before rising for the year. If enacted, this Bill would
introduce a further statute in the raft of legislation supporting Australian’s rights
to work, regardless of traditional prejudices. The protections in the Bill
would apply for the benefit of employees, commission agents, contract workers
and partners in partnerships of more than six people. There is, however, an
important exemption in clause 25 of the Bill for ‘youth wages’—that is, it would
still be lawful to choose to employ an under 21-year-old on the basis that the
cost of employing that person will be lower.
A late addition to business for the year was the Disability Discrimination
Amendment Bill 2003, introduced into the house on 3 December and referred
directly to the Senate Legal and Constitutional Legislation Committee. The Bill
proposes to exclude addiction to prohibited drugs (but not any disabilities
arising out of drug addiction, e.g. HIV infection or hepatitis C) from the
protection of the Disability Discrimination Act 1992 (Cwlth), and also from
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the unlawful dismissal provisions in section 170CK of the Workplace Relations Act
1996 (Cwlth). The Committee had not reported in time for inclusion of its views
in this report.
Miscellaneous matters
Media controversy early in the year over the sackings from their regular jobs of
some volunteer firefighters prompted the enactment of the Workplace Relations
Amendment (Protection for Emergency Management Volunteers) Act No. 76 of 2003,
assented to on 15 July 2003. Subsection 170CK(2) of the principal Act now makes
it unlawful to dismiss a person for their temporary absence from work because
of their participation in a voluntary emergency management activity, as long as
the absence was ‘reasonable having regard to all the circumstances’, and as long
as the activity involved an emergency or natural disaster, and the employee
was a member or member-like associate of a recognised emergency management
body.
Corporations Amendment (Repayment of Directors’ Bonuses) Act 2003, Act No. 25
of 2003, assented to on 11 April 2003, marks another small step in addressing
concerns about corporate responsibility, especially where companies become
insolvent, owing employee entitlements. Now that the government picks up the
bill for a certain level of lost entitlements under the General Employee
Entitlements Redundancy Scheme (GEERS), there has been an incentive to
legislate to claw back excessive directors’ bonuses and the benefits of any other
‘unreasonable director-related transactions’ entered into within four years of a
company becoming insolvent: see Corporations Act 2001 (Cwlth) section 588FDA
and subsection 588FE(6A).
Readers with a specialist interest in employee superannuation schemes should
note that the Superannuation (Government Contribution for Low Income Earners)
2003 Act No. 110 received assent on 12 November 2003.
Finally, toward the end of the year the Minister heralded a proposal for a
Workplace Relations Amendment (Restructure and Renumber) Bill to commence the
process of rewriting the Act in ‘plain English’. Older practitioners who know all
the sections from 170BA to 170WKA by heart may not be too enthusiastic in
welcoming such a simplification. At the time of writing no copy of the proposed
rewrite was available.
AROUND
THE STATES AND TERRITORIES
Australian Capital Territory
The Crimes (Industrial Manslaughter) Amendment Bill was introduced to amend
the Crimes Act to include an offence of industrial manslaughter. The Bill proposes criminal sanctions for employer companies and senior corporate officers
who negligently cause the death of a worker. The Bill had not been enacted at
the end of 2003.
New South Wales
In New South Wales, work safety was also high on the agenda, with unions
campaigning for industrial manslaughter legislation. However, no specific
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proposals for amendments to the Occupational Health and Safety Act 2000 or the
Crimes Act were tabled during the year.
The Industrial Relations Amendment (Public Vehicles and Carriers) Bill 2003 was
introduced to amend the Industrial Relations Act 1996 to extend the exclusion of
Chapter 6 of the Industrial Relations Act 1996—Public Vehicles and Carriers—
from the restrictive trade practices provisions of Part IV of the Trade Practices
Act 1974 (Cwlth).
The Industrial Relations Amendment (Adoption Leave) Bill 2003 passed both
houses and was awaiting assent at the end of 2003. This small amendment
provides that adoption leave is for the adoption of a child under 18.
Queensland
The Workers Compensation and Rehabilitation Act was passed on 27 March 2003.
This legislation restructures Queensland’s work cover arrangements, and
provides for the establishment of workers compensation advisory committees.
South Australia
During 2003, the South Australian government continued to inwardly digest the
implications of the 2002 Stevens Report (see Riley 2003: 163–4). No general
industrial law reforms were introduced. The Occupational Health, Safety and Welfare
(Safework SA) Amendment Bill 2003 was introduced as a measure to implement
a recommendation of the Stanley Report’s review of state occupational health
and safety laws, to remove duplication created by a splitting of responsibilities
between Workplace Services and WorkCover.
Victorian developments are noted above. No changes occurred in Tasmania
or the Northern Territory during 2003.
REFERENCES
Catanzariti J, Sharif Y (2002) Major Tribunal Decisions in 2001. Journal of Industrial Relations 44 (2),
211–27.
Catanzariti J, Sharif Y (2003) Major Tribunal Decisions in 2002. Journal of Industrial Relations 45 (2),
166–83.
Forsyth A (2003) A Bill for an Act to Transform Australian’s Industrial Relations Culture: Recent
Legislative Initiatives at the Federal Level. Paper presented at the Queensland Industrial Relations
Society Annual Conference, 26 September 2003. See http://www.workplaceexpress.com.au/
Accessed 29 September 2003.
Riley J (2001) Industrial Legislation in 2000. Journal of Industrial Relations 43 (2), 148–60.
Riley J (2002) Industrial Legislation in 2001. Journal of Industrial Relations 44 (2), 198–210.
Riley J (2003) Industrial Legislation in 2002. Journal of Industrial Relations 45 (2) 151–65.