Manajemen | Fakultas Ekonomi Universitas Maritim Raja Ali Haji 2002 15
INDUSTRIAL LEGISLATION IN 2001
JOELLEN RILEY*
A
t the federal level, the year 2001 saw much legislative activity in the form of bills,
debates, revisions and rejections––but very little progress for the government’s ‘third
wave’ industrial reform program. Apart from some changes to the unfair dismissals
regime, much important legislation was left on the table when Parliament rose before
the November federal election. Around the states, small but important changes to leave
entitlements and other matters suggest some fine-tuning to ensure the most vulnerable
workers are protected, but generally indicate stability in state industrial regimes.
MORE
OF THE SAME
Like 2000, the year 2001 was another year of intense debate but little significant
change for Australia’s federal industrial laws. The Howard government, ultimately
triumphant in the November 2001 election, had a frustrating time earlier in the
year on the industrial law front. Very little of the workplace relations ‘third wave’
agenda––on the table now for the third consecutive year––was achieved in 2001.
As the government returned for its third term at the beginning of 2002, some of
the major building blocks of its proposed new order were yet to be secured into
place: enactment of Registered Organisations legislation, introduction of small
business exemptions from the unfair dismissals laws, and the simplification of
Australian Workplace Agreement procedures were yet to be achieved.
At state level, the focus of legislative change in 2001 was on fine-tuning regulatory controls on minimum terms and conditions of employment, so that changing hiring practices do not disadvantage the most vulnerable workers. The
opportunities that casualisation offers to employers seeking to avoid some of the
standard leave conditions are obvious. In Queensland and New South Wales, long
term casual employees saw some improvement in their access to leave benefits.
But even at the state level, no radical reforms eventuated in 2001, despite the
upheaval threatened by recent changes of government in Victoria and Western
Australia. Tasmania’s long-awaited legislation was passed, but there the coalition
parties were successful in modifying some of the government’s more workerfriendly proposals. As the following excursion through the highlights of legislative activity around the nation demonstrates, there was much movement, but little
progress in 2001. At the state level, this perhaps indicates that the state regimes
are now enjoying some stability after the last decade’s period of active legislative
review. At the federal level, it indicates that the government had failed (at least
until the time of writing) to achieve the widespread support necessary to complete its programmed rewrite of federal industrial laws.
* Lecturer, Faculty of Law, University of Sydney, NSW 2000. I am grateful to Anna Ross and Sarah
Richardson for research assistance, and to Professor Ron McCallum for advice and encouragement.
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WAVE’
During 2001, the Federal Government continued its push to introduce further
‘deregulatory’ reforms to federal workplace relations law. Although, as the 2000
version of this report noted, deregulation is something of a misnomer for a program which seeks to create a considerable body of new legal rules to achieve its
objectives (see Riley 2001: 148). Most of the government bills introduced in 2001
repackaged elements of the failed ‘More Jobs Better Pay’ Bill of 1999. Only two
of these bills survived the scrutiny of the Senate and became law: the Workplace
Relations Amendment (Tallies) Act 2001,1 and the Workplace Relations Amendment
(Termination of Employment) Act 2001.2 When the 39th Parliament was dissolved
on 8 October 2001, prior to the 10 November election, three bills amending the
Workplace Relations Act 1996 had been passed by the House of Representatives,
but not by the Senate. These were the Workplace Relations (Registered
Organisations) Bill 2001, the Workplace Relations (Registered Organisations)
(Consequential Amendments) Bill 2001, and the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2001. Three other bills had
been introduced, but not passed, in the House of Representatives. These were
the Workplace Relations Amendment (Transmission of Business) Bill 2001,
Workplace Relations and Other Legislation Amendment (Small Business and
Other Measures) Bill 2001, and the Workplace Relations Amendment (Minimum
Entitlements for Victorian Workers) Bill 2001. The following necessarily brief
summaries of these Acts and Bills place them in the context of the overall ‘third
wave’ reform agenda.
Tallies
The modernisation of awards to remove entrenched and allegedly inefficient work
practices has been an important objective of the Howard government’s industrial relations reforms. Tallies, common in (and generally restricted to) the meat
industry, measure performance by labour input, rather than by product output,
and have been blamed for inefficiency and lack of international competitiveness
in the Australian meat industry.3 In fact, the process of award simplification commenced after the Workplace Relations and Other Legislation Amendment Act 1996
had already seen removal of tally provisions from the Federal Meat Industry
[Processing] Award 1996 (see the decision of the Full Bench of the AIRC on
1 September 2000, Print S 9669). So in many respects, the Workplace Relations
Amendment (Tallies) Act 2001 which removed ‘tallies’ from the allowable award
matters listed in section 89A(2)(d) of the Workplace Relations Act 1996, was an item
of statutory house-keeping. A new phrase, ‘incentive-based payments (other than
tallies in the meat industry)’ has been inserted in place of ‘tallies’, and a new
section 89B has been inserted to oblige the AIRC to review awards containing
clauses that provided for tallies. Any such clause automatically ceased to have
effect 12 months from the date of assent. This means that from 22 March 2002,
any clause in any meat industry award still purporting to provide for tallies is of
no effect. The Commission is specifically empowered to vary awards to remove
such clauses and insert provisions that will ensure that ‘overall entitlements’ are
not reduced: section 89B(4).
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Termination of employment
The Howard government, supported strongly by the Australian Chamber of
Commerce and Industry, has argued for some time for changes to the unfair dismissals regime because those laws have allegedly dampened new employment in
Australia, particularly in the small business sector.4 The Workplace Relations
Amendment (Termination of Employment) Act 2001 achieved some of the changes
sought in earlier attempts––but by no means all. The special small business exemption is contained in a separate bill (see the Workplace Relations and Other
Legislation Amendment (Small Business and Other Measures) Bill 2001 discussed
below) which, at the time of writing, had not been fully debated by either house.
Demotion
Those changes that have been introduced focus principally on the procedures
for making claims and measures for discouraging speculative claims. However
there have been some changes to the substantive rights of employees to claim.
For instance, a new sub-section 170CD(1B) provides that termination of employment does not include demotion, unless that demotion involves a ‘significant
reduction in the remuneration or duties of the demoted employee’. This applies
in the case of both unfair termination according to section 170CE(1)(b), and
unlawful termination under section 170CK. It remains for the Commission and
the Court to determine what constitutes a ‘significant reduction’.
Three month ‘qualifying period’
New sub-sections 170CE(5A) and (5B) introduce a ‘qualifying period of employment’ before a dismissed employee is entitled to make a claim for unfair dismissal.
This period is three months, unless no period, a shorter period, or a longer (but
‘reasonable’) period is agreed between employer and employee in writing. This
qualifying period applies only to applications brought under section 170CE(1)(a),
i.e. for ‘harsh, unjust or unreasonable’ dismissal. Applications for unlawful dismissal under section 170CK (for some discriminatory reason) are unaffected by
this amendment.
Small business concession
In determining whether a dismissal was procedurally unfair (for instance, because
adequate and timely warnings of under-performance were not given), the
Commission may now take into account the size of the employer’s undertaking,
and the absence of dedicated human resource management personnel in the
employer’s business: section 170CG(3)(da) and (db). This would appear to be a
concession to small businesses, which may expect some leniency if they fail to
establish and follow the kinds of HRM procedures expected of larger organisations. The serious concessions which the government wants to extend to small
business (notably a complete exemption from the unfair termination provisions
for businesses with fewer than 20 employees) were included in the Workplace
Relations and Other Legislation Amendment (Small Business and Other
Measures) Bill 2001 (noted briefly below).
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Extensions of time
The Commission’s discretion to extend the time for making an application beyond
the 21-day limit has been clarified by the addition of a note to section 170CE(7A).
The same note has been added to section 170CP(6) which deals with applications to the Federal Court. This note refers to the principles set down in Brodie
Hanns v. MTV Publishing Ltd (1995) 67 IR 298. Those principles (cited directly
from the case) are:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.The prima facie position is that
the time limit should be complied with unless there is an acceptable explanation of
the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under
the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against
the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant
an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like
position are relevant to the exercise of the Court’s discretion.
Early strike-out of unmeritorious claims
The procedural changes introduced ostensibly to weed out unmeritorious claims
include a new section 170CEA which entitles a respondent to a claim to move
that the application be struck out before any hearing is commenced. This section obliges the Commission to deal with the strike-out motion before taking
any action, or further action, in the principal application. A new sub-section
170CF(2) obliges the Commission presiding over an attempt at conciliation to
advise the parties if it takes the view that an application has no reasonable prospect
of success. If such advice is given, the Commission must invite the applicant to
provide further support for the application: sub-section 170CF(3). If this further
information is not provided, or if it fails to convince the Commissioner of the
merits of the application, then the Commission must issue a certificate stating
that the application has no reasonable prospect of success at arbitration: subsection 170CF(4). Upon issue of this certificate, the application is dismissed, to
the extent that it relies on the particular ground dealt with in the certificate. If
an application is able to proceed regardless of this process, any advice given or
certificate issued under section 170CF becomes relevant when the Commission
exercises its powers to order payment of costs. Persisting in an application contrary to the Commission’s advice or certificate is a matter that the Commission
can take into account in deciding to award costs against the applicant: section
170CJ(4).
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An applicant’s failure to attend is now grounds for the Commission to dismiss
an application: new section 170CIB.
Advisers and representatives
A new section 170CIA obliges the Commission to require legal and non-legal
representatives in any proceedings before the Commission to disclose their fee
arrangements. Any person who is engaged to represent an applicant for a fee is
defined as an ‘adviser’ under section 170HD, and will be liable for prosecution
if they breach section 170HE, which prohibits advisers from encouraging the
commencement or continuance of applications with no reasonable prospects for
success. Advisers are to be tested against an objective standard. They will be held
to have infringed this provision if, in hindsight, the Commission finds that there
were facts that ought reasonably to have been apparent to the adviser, or of which
the adviser should have become aware. Breach of section 170HE renders an
adviser liable for a fine of up to $2000 in the case of an individual and $10 000
for a body corporate: section 170HI.
Originally, this bill (and earlier versions of these proposals) limited this sanction to allegedly unmeritorious applications by employees. Following amendment
by the Senate, the enacted legislation extends the sanction to advisers who persist with unmeritorious defences: see section 170HE(2). (So the criticism of the
bill made in this review last year has been addressed in the enacted legislation.)
Registered organisations
At the time of writing, the pair of bills dealing with registered associations had
lapsed, after failing to pass the Senate prior to the Federal election. The bills had
already suffered amendment to secure their passage through the House of
Representatives. Given the propensity of the Senate to insist on substantial
amendment to contentious industrial legislation, detailed analysis of this legislation is best left until there is opportunity to thoroughly examine an enacted
statute. For a critique of an earlier draft of these proposals, see Forsyth (2000).
Nevertheless, some outline here is warranted, given the significance of this proposed legislation to the federal industrial relations landscape. Generally, this pair
of bills proposes to move all of the machinery for regulating registered organisations into a separate statute, to be called the Workplace Relations (Registered
Organisations) Act. This statute, structured like a miniature Corporations Act,
would include provisions for:
• registration, and cancellation of registration
• amalgamation and disamalgamation
• representation rights of organisations
• the making of rules for the governance of organisations (similar to corporate
constitutions, or what were once described as articles of association)
• membership, including provisions for resignation of membership and limits
on the organisations’ rights to charge arrears of dues
• ‘democratic control’, meaning mandatory procedures for election of office
bearers
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• records, accounts and conduct of officers
• penalty provisions.
Chapter 8, ‘Records, accounts and conduct of officers’, includes a division imposing Corporations Act-like duties on officers and employees. These duties (applicable only to the financial management functions of officers) include the classic
directors’ duties to act ‘in good faith’ and ‘for a proper purpose’ in the best
interest of the organisation, and include prohibitions on misuse of position and
information. These are comparable to the duties in sections 181, 182 and 183 of
the Corporations Act (Cwlth). The rhetoric surrounding introduction of the bills
was illuminating. The Minister, the Hon. Tony Abbott, concluded his second
reading speech by stating that the new governance rules enforced by this legislation would enable unions to ‘focus themselves as relevant, modern, serviceoriented bodies’, like modern corporations. This is consistent with the overall
attitude of the Howard government’s reform agenda. Traditionally, registered
organisations were conceived of as essential primary parties in the system. In
Jumbunna Coal Mine (NL) v. Victorian Coal Miners’ Association (1908) 6 CLR 309,
early legislation providing for registration of unions was held to be constitutionally
valid because the existence of unions acting as primary parties to industrial disputes was incidental to the system of conciliation and arbitration. This was despite
authority to the effect that the federal Parliament had no power to engender
new corporations per se. In the reform agenda, however, unions have been
re-conceptualised as third parties offering bargaining and grievance resolution
services to client members.
Prohibition of compulsory union fees
The Workplace Relations Amendment (Prohibition of Compulsory Union Fees)
Bill 2001 purported to achieve by legislative means what the Employment
Advocate failed to achieve in an application to the AIRC.5 The Employment
Advocate had argued that a clause in an enterprise bargain which allowed unions
to levy a ‘bargaining fee’ on non-members was in breach of the freedom of association provisions in Part XA of the Workplace Relations Act 1996. This was a
direct challenge to a union strategy to deal with the perceived ‘free rider’ problem: if non-union members can enjoy the benefits of successful enterprise bargaining without paying union dues, there is a clear financial disincentive to pay
those dues, at least in the short term. The Employment Advocate failed in the
first instance, and on appeal to the Full Bench. An employer, Electrolux Home
Products Pty Ltd, had more success before the Federal Court: see Electrolux Home
Products Pty Ltd v. Australian Workers Union [2001] FCA 1600 (14 November 2001,
Merkel J). In this case the employer was able to avoid inclusion of a provision
for bargaining fees in a certified agreement, by successfully arguing that inclusion of a bargaining fee clause was not a matter pertaining to the employment
relationship (as is required by section 170LI). Passage of this bill may therefore
now be unnecessary, except to foreclose the possibility of unions adopting informal means of attempting to impose such fees. The bill proposes a new section
298QA which would outlaw any demand for payment of compulsory bargaining
fees from non-members of the union. This proposed section would not make it
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illegal for a union to ask for a non-compulsory bargaining fee. However, agreeing or refusing to pay a non-compulsory bargaining fee would be added to the
list of ‘prohibited reasons’ in section 298L. This would mean that an employer
who discriminated against an employee (or did any of the other acts listed in
section 298K) because the employee had either agreed or refused to pay a bargaining fee to a union would contravene the freedom of association provisions.
Transmission of business
As it stands, Workplace Relations Act 1996 section 170MB provides that any successor, transmittee or assignee of the whole or part of a business will be bound
by the terms of any certified agreement binding on the original employing entity.
There is potential in complex business restructures (especially of government
activities into privatised businesses) for a new employer to be subject to a range
of different certified agreements and awards, depending on the union membership of employees carrying over to the new enterprise. In the case of award
employees, section 149 of the Act leaves room for the AIRC to make an order
that a new employer should not be bound by old awards. But there is no provision for the AIRC to arbitrate this issue in the case of certified agreements. That
there should be no provision is not surprising, given the primacy afforded to
mutual consent in the certified agreement provisions as a whole. If parties wish
to terminate old inappropriate agreements there is always the option of negotiation for new agreements. But this has been argued (in the Explanatory
Memorandum to the Workplace Relations Amendment (Transmission of
Business) Bill 2001) to cause ‘impediments to productivity and efficiency which
adversely affect the ongoing viability and profitability of the transmittee’s business’. So the bill proposed to make section 170MB ‘subject to any order of the
Commission’, and to include new sub-sections (2A) to (2D) setting out a procedure by which the Commission may make such an order. Only the employer
(not any employee or union) would be entitled to apply for an order, however
employees would be given an opportunity to make submissions before an order
was made. Unions would have standing to make submissions only where they
were requested to do so by a member who was employed by the new employer:
proposed sub-section (2D). If this bill becomes law in its present form, collective agreements will be able to be cancelled or varied before their expiry dates,
on the application of a new employer taking over the business. Employees would
no longer be guaranteed the benefits of their old agreements during the time
that they negotiated any new agreement with the new employer.
Small business and other measures
Several of the more contentious components of the original Workplace Relations
Legislation Amendment (More Jobs, Better Pay) Bill 1999 have been repackaged
into the Workplace Relations and Other Legislation Amendment (Small Business
and Other Measures) Bill 2001. Again, given the political sensitivity of these issues,
and the time that inevitably passes between writing and publication in scholarly
journals, elaborate exposition of the bill here is unwise.
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Unfair dismissals exemption
The most significant elements were introduction of an exemption from the unfair
(but not unlawful) dismissal provisions for employers of fewer than 20 people.
The 20 head count was to include casuals employed on a regular and systematic
basis for more than 12 months, but not other casual staff.
AWA procedures
This bill also contained a rewrite of the AWA procedures, ostensibly to remove
perceived impediments to more extensive use of this form of agreement-making
by small employers. Instead of a waiting period before an AWA comes into effect,
the bill proposed immediate effect, but with a ‘cooling off’ period during which
employees could withdraw. The requirement that an employer must not have
acted in an unfairly discriminatory manner in offering AWAs to some but not all
comparable employees (present section 170VPA) does not appear in the rewrite.
The AIRC would no longer have any direct role in approving AWAs which
did not pass the no-disadvantage test. Under this bill, it would fall to the
Employment Advocate to assess whether approval of an AWA, despite failure
of the no-disadvantage test, would not be contrary to the public interest: proposed sub-section 170VCB(5). The President of the AIRC would, however, be
empowered to establish principles to provide general guidance to the Employment
Advocate in the application of this public interest assessment: proposed section
170VCC.
Awards and small business
Under proposed sections 101A and 101B, the AIRC would be obliged to specifically invite any businesses with fewer than 20 employees to make written submission on a proposed award before the award could be made. Proposed section
101A sets out formal procedures and requirements for the service of logs of claim
and notices.
It is clear from the explanatory memorandum accompanying the bill that one
of the intended benefits of these somewhat elaborate procedures is to ensure that
the Commission is well aware of the extent to which an award will affect small
businesses before making any determination.
Secondary boycotts
An apparently minor amendment made in Schedule 5 of this bill would expand
the powers of the Australian Consumer and Competition Commission (ACCC)
to pursue compensation claims on behalf of persons affected by secondary boycotts. The power of the ACCC to take representative action is seen as an important and effective regulatory tool in policing the kind of trade practices
infringements that individuals alone are unlikely to pursue remedies for, mainly
because of cost and inconvenience. The provisions enabling representative actions
under section 87 of the Trade Practices Act 1974 were introduced by the Trade
Practices Amendment Act (No1) 2001 (Act No. 63 of 2001), effective from 26 August
2001, but the secondary boycott provisions (section 45D and 45E) were specifically excluded. This subtle amendment in the current bill would simply excise
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the exclusion of those provisions from this power, and so add to the arsenal of
sanctions against secondary boycott activity. A willingness to involve the ACCC
(formerly the TPC) in industrial disputes has distinguished the approach of
Coalition governments from that of Labor governments. The Hawke/Keating
industrial reforms in 1993 took the view that the AIRC was the appropriate
authority to monitor and police all forms of disputatious industrial activity, so
moved the secondary boycott sanctions out of the trade practices legislation into
the Industrial Relations Act 1988. This move was reversed by the Workplace Relations
and Other Legislation Amendment Act 1996, again reflecting the present government’s view that industrial activity should be subject to the same controls as commercial activity generally.
Other matters
Schedule 7 of this bill proposed a rewrite of the provisions for union rights of
entry to workplaces.
Schedule 8 would include specific provision prohibiting, in both awards and
certified agreements, the inclusion of any clauses which purport to restrict an
employer’s right to enter into contracts for services. There would be a limited
exception for textiles, clothing and footwear industry awards. For this industry,
notorious for exploitation of outworkers, proposed sub-section 89A(6B) would
allow an award clause to the effect that contract workers must be given terms
and conditions at least as favourable as award conditions.
Minimum entitlements for Victorian workers
The Bracks Government’s attempts to reintroduce Victorian industrial legislation via the Fair Employment Bill 2000 was successfully opposed in the Victorian
Parliament early in 2001. (For a brief survey of this bill, see Riley 2001.) The
federal Workplace Relations Amendment (Minimum Entitlements for Victorian
Workers) Bill 2001 sought to address the concerns (well-documented in the
Independent Report of the Victorian Industrial Relations Taskforce chaired by
Professor Ron McCallum) that Victorian workers had been disadvantaged by the
Kennett Government’s reference of industrial matters to the Commonwealth in
1997. This bill lapsed without debate.
PROTECTING
EMPLOYEE ENTITLEMENTS
The year 2001 saw several high profile corporate collapses which again focused
public attention on the problem of protecting employees’ accrued entitlements
in the face of employer insolvency. The HIH collapse, the One-Tel disaster, and
most recently the Ansett Airlines crisis contributed to the continuing political
debate on the best means of dealing with this issue. Further administrative
solutions were introduced. Just prior to the announcement of the November federal election, the Minister, the Hon. Tony Abbott, announced a new General
Employee Entitlements Redundancy Scheme (GEERS) to replace the Employee
Entitlements Support Scheme (EESS) introduced after the National Textiles collapse in January 2000. GEERS, which operated from 12 September 2001,
promises to pay all unpaid wages, all accrued annual leave, all accrued long
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service leave, all pay in lieu of notice, and up to 8 weeks’ redundancy pay, up to
a maximum based on an annual wage of $75 200 (indexed annually).6
The Ansett collapse, involving some 16 000 employees, presented a particularly distressing problem. The Howard government promised that Ansett employees would receive all entitlements, regardless of the outcome of the sale of Ansett
and Ansett assets, and this promise was to be funded by a special levy on all airline passenger tickets. The necessary legislation (the Air Passenger Ticket Levy
(Collection) Act 2001 and the Air Passenger Ticket Levy (Imposition) Act 2001) was
passed urgently by the House of Representatives and the Senate on 26 and
27 September respectively.
No legislative solutions were debated this year. ALP Leader, the Hon. Kim
Beazley, introduced a private member’s bill, the Corporate Responsibility and
Employment Security Bill 2001, on 24 September, but this lapsed without debate.
This bill attempted to revive a Labor party proposal to amend both the
Corporations Act and the Workplace Relations Act 1996 to extend liability for
employee entitlements (including rights to reinstatement) to related corporate
entities. These amendments have been re-tabled persistently since their initiation after the Waterfront dispute of 1998 but have never been seriously debated.
AROUND
THE STATES
New South Wales
The Anti-Discrimination Amendment (Carers Responsibilities) Act 2000 (NSW) was
proclaimed to commence on 1 March 2001. This legislation (described in this
review last year, see Riley 2001: 159) brings New South Wales into line with other
states (except South Australia) to make discrimination on the basis of an
employee’s carer status unlawful.
The Industrial Relations Amendment (Leave for Victims of Crime) Act 2001 (NSW)
inserted sections 72AA to 72AG into the Industrial Relations Act 1996 (NSW), to
enable employees who have been the victims of violent crimes unpaid leave to
attend court proceedings.
The Industrial Relations Amendment (Casual Employees Parental Leave) Act 2001
amends to entitlements of long term regular casual employees for unpaid parental
leave. Now these employees are entitled to leave after 12 months, rather than
two years.
The Long Service Leave Legislation Amendment Act 2001 (NSW) amended
statutes providing for long service leave, by allowing young employees to begin
accruing pro-rata entitlements as soon as they start working. This amendment
is effective from 1 August 2001.
Major changes to workers’ compensation caused considerable political turbulence in NSW during 2001, most of the debate being concerned about the extent
to which workers could continue to pursue common law claims for workplace
illness and injury. Workers’ compensation is a highly specialised field and the
changes to the system are complex, so readers with an interest in these changes
are advised to consult specialist publications and advisers. The amending statutes
were:
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• The Workers Compensation Legislation Amendment Act 2000, No. 87 of 2000,
assented to on 6 December 2000.
• The Workers Compensation Legislation Amendment Act 2001 (No. 2), No. 61 of
2001, assented to on 17 July 2001.
• The Workers Compensation Legislation Further Amendment Act 2001, No. 94 of
2001, assented to on 6 December 2001.
Queensland
The Industrial Relations and Another Act Amendment Act 2001 (Qld) received assent
on 11 May 2001 and came into effect on 3 June 2001. This legislation reduced
from 15 to 10 years the qualifying period for long service leave, and allowed for
pro-rata entitlements after only 7 years: see Industrial Relations Act 1999 (Qld)
section 43. The new provisions entitle employees to 8.6667 weeks’ leave after
10 years of continuous service, and permit clauses in industrial agreements for
cashing out leave entitlements: section 53.
The Industrial Relations Amendment Act 2001 (Qld) received assent on
3 December 2001. The main features of this Act are:
• New provisions extend entitlements under Chapter 2, Part 2, ‘Family Leave’
to ‘long term casual employees’, defined in section 15A as a person engaged
‘on a regular and systematic basis during a period of at least 1 year immediately before the employee seeks access to an entitlement’.
• Part 4 of the Dismissals chapter, dealing particularly with procedures for
retrenchments involving more than 15 persons, have been rewritten (see sections 86 to 90B).
• Several amendments have been made to guarantee pay equity for women.
Awards must now provide for ‘equal remuneration for men and women
employees for work of equal or comparable value’: section 126. Likewise,
agreements cannot be certified unless the Commission is satisfied that they
remunerate men and women equally: see sections 156 and 157. These pay
equity amendments are scheduled to commence on 1 May 2002.
• Section 275, which empowers the Commission to declare persons to be
employees, has been amended to extend this power. The Commission may
now also declare a person to be an employer.
• A new sub-section 287(2) has been inserted to oblige a Full Bench of the
Commission to make a minimum wage determination at least once each
calendar year.
Victoria
As noted above, the Fair Employment Bill 2000, noted in this review last year,
failed to secure passage through the Coalition party-controlled upper house. The
Victorian Premier, Mr Bracks, introduced the Commonwealth Powers (Industrial
Relations) (Amendment) Bill 2001 on 22 August 2001, to enable the changes to
Part XV of the Workplace Relations Act 1996 (Cwlth) proposed by the Federal
Government as a compromise (see above). At the time of writing, the fate of this
proposal was uncertain.
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Another contentious Victorian proposal in 2001 was the Crimes (Workplace
Deaths and Serious Injuries) Bill introduced on 22 November 2001. This was
also known as the Crimes (Industrial Manslaughter) Bill 2001 in an early draft––a
title no doubt considered too blunt following extensive debate on the proposal.
The objective of this bill was to address public concern about an apparent lack
of adequate sanctions against corporations and corporate controllers who profit
from highly dangerous work practices. The bill, if enacted, would create new
criminal offences of corporate manslaughter, and negligently causing serious
injury. The bill would increase financial penalties for corporations and would also
impose criminal liability on senior officers, provided the officer was ‘organisationally responsible’, for the conduct, or failure to act, which caused the death
or serious injury at issue: see proposed section 14C.
Western Australia
The newly-elected Gallop Labor Government has foreshadowed a major review
of Western Australian industrial laws, which is expected to involve significant
changes to the arrangements for individual workplace agreements. On 21 March
2001, the Minister for Labour Relations, the Hon. John Kobelke, announced
that any workplace agreements registered after that date would be valid for only
six months after the introduction of new legislation.7 At the time of writing, a
bill proposing repeal of the Workplace Agreements Act 1993 (WA) had been
tabled in the Legislative Council, but had not been debated: see the Workers’
Rights Reinstatement and Protection Bill 2001, tabled on 13 December 2001.
Tasmania
After a long period of political debate, the Industrial Relations Amendment Act 2000
(Tas.) has been enacted, effective from 1 January 2001. The Bacon Labor
Government was forced to compromise on some of the provisions in its
original bill to ensure passage through the Liberal Coalition-controlled
Legislative Council. The principal changes include the abolition of the Office
of the Enterprise Commissioner (the whole of Part IVA Division 3 of the Industrial
Relations Act 1984 (Tas.) has been repealed). Enterprise agreements are now
approved following a hearing by a member of the Tasmanian Industrial
Commission. Much of the new Act is machinery to give effect to this institutional reorganisation.
Early proposals included a ‘no net detriment’ test for Tasmanian enterprise
bargains, similar to the ‘no-disadvantage’ test applied to federal certified agreements and AWAs. However this proposal failed to achieve support in the
Legislative Council. Instead, the Commissioner must refuse to approve an agreement if it ‘is not fair in all the circumstances’: section 61J(1)(f).
The Amendment Act also rewrote provisions for unfair dismissals (see new
sections 30 and 30A). Formerly, section 31 applied the ‘standards of general application contained in Part II of the International Labour Organisation’s Convention
concerning the Termination of Employment at the Initiative of the Employer’.
(These provisions are reproduced in Schedule 10 of the Workplace Relations Act
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1996.) Now the standards to be applied are expanded in section 30. Notable differences between the old and the new are the inclusion of ‘non-membership of
a trade union’ and an expanded list of discriminatory grounds as impermissible
reasons for termination. ‘Sexual preference’ and ‘physical or intellectual disability’ are now included in the list––with the usual exception for the ‘inherent nature
of the work’. Under sub-section 30(5), the employer bears the onus of proving
the existence of a valid reason for termination. Section 30A provides that persons employed under Federal awards may apply to the Tasmanian Commission
if they are excluded from the federal unfair dismissal provisions. The time limit
for making an application to the Commission has been extended from 14 days
to 21 days: section 29(1B).
Coverage of the Tasmanian legislation was expanded, by amendment of the
definition of employee in section 3 to include trainees, apprentices and outworkers. ‘Outworker’ means a person who performs the work of garment
manufacture outside the employer’s premises.
Tasmanian employees now have a right to inspect and take copies of the
employer’s records relating to their employment: new sub-section 75(1A).
NOTES
1. Act No. 7 of 2001, assented to on 22 March 2001.
2. Act No. 100 of 2001, assented to on 22 August 2001.
3. See Senate Employment, Workplace Relations, Small Business and Education Legislation
Committee Report on its consideration of provisions in the package of Workplace Relations
reform bills tabled in 2000 (September 2000), paragraphs 1.10 – 1.13.
4. See for instance Letter to the Editor from Mark Paterson (CEO of the ACCI), Unfair dismissal laws are hurting jobs. Australian Financial Review 7 December 2001, 71.
5. See Guidice P, Kaufman SDP, Whelan C (2001) Re Accurate Factory Maintenance Labour Hire
Enterprise Agreement 2000–2003 and Other Agreements, 12 October, Print 910205.
6. Media Release, Minister Tony Abbott, ‘Even Better Arrangements to Protect Employee
Entitlements’, dated 20 September 2001, http://www.dewrsb.gov.au/ministers, last consulted
3 October 2001.
7. Media Statement, ‘Time limit for Workplace Agreements’, dated 21 March 2001,
http://www.mediastatements.wa.gov.au, last consulted 11 December 2001.
REFERENCES
Forsyth A (2000) Trade union regulation and the accountability of union office-holders: examining the corporate model. Australian Journal of Labour Law 13, 28–49.
Riley J (2001) Industrial legislation in 2000. Journal of Industrial Relations 43(2), 148–160.
JOELLEN RILEY*
A
t the federal level, the year 2001 saw much legislative activity in the form of bills,
debates, revisions and rejections––but very little progress for the government’s ‘third
wave’ industrial reform program. Apart from some changes to the unfair dismissals
regime, much important legislation was left on the table when Parliament rose before
the November federal election. Around the states, small but important changes to leave
entitlements and other matters suggest some fine-tuning to ensure the most vulnerable
workers are protected, but generally indicate stability in state industrial regimes.
MORE
OF THE SAME
Like 2000, the year 2001 was another year of intense debate but little significant
change for Australia’s federal industrial laws. The Howard government, ultimately
triumphant in the November 2001 election, had a frustrating time earlier in the
year on the industrial law front. Very little of the workplace relations ‘third wave’
agenda––on the table now for the third consecutive year––was achieved in 2001.
As the government returned for its third term at the beginning of 2002, some of
the major building blocks of its proposed new order were yet to be secured into
place: enactment of Registered Organisations legislation, introduction of small
business exemptions from the unfair dismissals laws, and the simplification of
Australian Workplace Agreement procedures were yet to be achieved.
At state level, the focus of legislative change in 2001 was on fine-tuning regulatory controls on minimum terms and conditions of employment, so that changing hiring practices do not disadvantage the most vulnerable workers. The
opportunities that casualisation offers to employers seeking to avoid some of the
standard leave conditions are obvious. In Queensland and New South Wales, long
term casual employees saw some improvement in their access to leave benefits.
But even at the state level, no radical reforms eventuated in 2001, despite the
upheaval threatened by recent changes of government in Victoria and Western
Australia. Tasmania’s long-awaited legislation was passed, but there the coalition
parties were successful in modifying some of the government’s more workerfriendly proposals. As the following excursion through the highlights of legislative activity around the nation demonstrates, there was much movement, but little
progress in 2001. At the state level, this perhaps indicates that the state regimes
are now enjoying some stability after the last decade’s period of active legislative
review. At the federal level, it indicates that the government had failed (at least
until the time of writing) to achieve the widespread support necessary to complete its programmed rewrite of federal industrial laws.
* Lecturer, Faculty of Law, University of Sydney, NSW 2000. I am grateful to Anna Ross and Sarah
Richardson for research assistance, and to Professor Ron McCallum for advice and encouragement.
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WAVE’
During 2001, the Federal Government continued its push to introduce further
‘deregulatory’ reforms to federal workplace relations law. Although, as the 2000
version of this report noted, deregulation is something of a misnomer for a program which seeks to create a considerable body of new legal rules to achieve its
objectives (see Riley 2001: 148). Most of the government bills introduced in 2001
repackaged elements of the failed ‘More Jobs Better Pay’ Bill of 1999. Only two
of these bills survived the scrutiny of the Senate and became law: the Workplace
Relations Amendment (Tallies) Act 2001,1 and the Workplace Relations Amendment
(Termination of Employment) Act 2001.2 When the 39th Parliament was dissolved
on 8 October 2001, prior to the 10 November election, three bills amending the
Workplace Relations Act 1996 had been passed by the House of Representatives,
but not by the Senate. These were the Workplace Relations (Registered
Organisations) Bill 2001, the Workplace Relations (Registered Organisations)
(Consequential Amendments) Bill 2001, and the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Bill 2001. Three other bills had
been introduced, but not passed, in the House of Representatives. These were
the Workplace Relations Amendment (Transmission of Business) Bill 2001,
Workplace Relations and Other Legislation Amendment (Small Business and
Other Measures) Bill 2001, and the Workplace Relations Amendment (Minimum
Entitlements for Victorian Workers) Bill 2001. The following necessarily brief
summaries of these Acts and Bills place them in the context of the overall ‘third
wave’ reform agenda.
Tallies
The modernisation of awards to remove entrenched and allegedly inefficient work
practices has been an important objective of the Howard government’s industrial relations reforms. Tallies, common in (and generally restricted to) the meat
industry, measure performance by labour input, rather than by product output,
and have been blamed for inefficiency and lack of international competitiveness
in the Australian meat industry.3 In fact, the process of award simplification commenced after the Workplace Relations and Other Legislation Amendment Act 1996
had already seen removal of tally provisions from the Federal Meat Industry
[Processing] Award 1996 (see the decision of the Full Bench of the AIRC on
1 September 2000, Print S 9669). So in many respects, the Workplace Relations
Amendment (Tallies) Act 2001 which removed ‘tallies’ from the allowable award
matters listed in section 89A(2)(d) of the Workplace Relations Act 1996, was an item
of statutory house-keeping. A new phrase, ‘incentive-based payments (other than
tallies in the meat industry)’ has been inserted in place of ‘tallies’, and a new
section 89B has been inserted to oblige the AIRC to review awards containing
clauses that provided for tallies. Any such clause automatically ceased to have
effect 12 months from the date of assent. This means that from 22 March 2002,
any clause in any meat industry award still purporting to provide for tallies is of
no effect. The Commission is specifically empowered to vary awards to remove
such clauses and insert provisions that will ensure that ‘overall entitlements’ are
not reduced: section 89B(4).
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Termination of employment
The Howard government, supported strongly by the Australian Chamber of
Commerce and Industry, has argued for some time for changes to the unfair dismissals regime because those laws have allegedly dampened new employment in
Australia, particularly in the small business sector.4 The Workplace Relations
Amendment (Termination of Employment) Act 2001 achieved some of the changes
sought in earlier attempts––but by no means all. The special small business exemption is contained in a separate bill (see the Workplace Relations and Other
Legislation Amendment (Small Business and Other Measures) Bill 2001 discussed
below) which, at the time of writing, had not been fully debated by either house.
Demotion
Those changes that have been introduced focus principally on the procedures
for making claims and measures for discouraging speculative claims. However
there have been some changes to the substantive rights of employees to claim.
For instance, a new sub-section 170CD(1B) provides that termination of employment does not include demotion, unless that demotion involves a ‘significant
reduction in the remuneration or duties of the demoted employee’. This applies
in the case of both unfair termination according to section 170CE(1)(b), and
unlawful termination under section 170CK. It remains for the Commission and
the Court to determine what constitutes a ‘significant reduction’.
Three month ‘qualifying period’
New sub-sections 170CE(5A) and (5B) introduce a ‘qualifying period of employment’ before a dismissed employee is entitled to make a claim for unfair dismissal.
This period is three months, unless no period, a shorter period, or a longer (but
‘reasonable’) period is agreed between employer and employee in writing. This
qualifying period applies only to applications brought under section 170CE(1)(a),
i.e. for ‘harsh, unjust or unreasonable’ dismissal. Applications for unlawful dismissal under section 170CK (for some discriminatory reason) are unaffected by
this amendment.
Small business concession
In determining whether a dismissal was procedurally unfair (for instance, because
adequate and timely warnings of under-performance were not given), the
Commission may now take into account the size of the employer’s undertaking,
and the absence of dedicated human resource management personnel in the
employer’s business: section 170CG(3)(da) and (db). This would appear to be a
concession to small businesses, which may expect some leniency if they fail to
establish and follow the kinds of HRM procedures expected of larger organisations. The serious concessions which the government wants to extend to small
business (notably a complete exemption from the unfair termination provisions
for businesses with fewer than 20 employees) were included in the Workplace
Relations and Other Legislation Amendment (Small Business and Other
Measures) Bill 2001 (noted briefly below).
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Extensions of time
The Commission’s discretion to extend the time for making an application beyond
the 21-day limit has been clarified by the addition of a note to section 170CE(7A).
The same note has been added to section 170CP(6) which deals with applications to the Federal Court. This note refers to the principles set down in Brodie
Hanns v. MTV Publishing Ltd (1995) 67 IR 298. Those principles (cited directly
from the case) are:
1. Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended.The prima facie position is that
the time limit should be complied with unless there is an acceptable explanation of
the delay which makes it equitable to so extend.
2. Action taken by the applicant to contest the termination, other than applying under
the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.
3. Prejudice to the respondent including prejudice caused by delay will go against
the granting of an extension of time.
4. The mere absence of prejudice to the respondent is an insufficient basis to grant
an extension of time.
5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.
6. Consideration of fairness as between the applicant and other persons in a like
position are relevant to the exercise of the Court’s discretion.
Early strike-out of unmeritorious claims
The procedural changes introduced ostensibly to weed out unmeritorious claims
include a new section 170CEA which entitles a respondent to a claim to move
that the application be struck out before any hearing is commenced. This section obliges the Commission to deal with the strike-out motion before taking
any action, or further action, in the principal application. A new sub-section
170CF(2) obliges the Commission presiding over an attempt at conciliation to
advise the parties if it takes the view that an application has no reasonable prospect
of success. If such advice is given, the Commission must invite the applicant to
provide further support for the application: sub-section 170CF(3). If this further
information is not provided, or if it fails to convince the Commissioner of the
merits of the application, then the Commission must issue a certificate stating
that the application has no reasonable prospect of success at arbitration: subsection 170CF(4). Upon issue of this certificate, the application is dismissed, to
the extent that it relies on the particular ground dealt with in the certificate. If
an application is able to proceed regardless of this process, any advice given or
certificate issued under section 170CF becomes relevant when the Commission
exercises its powers to order payment of costs. Persisting in an application contrary to the Commission’s advice or certificate is a matter that the Commission
can take into account in deciding to award costs against the applicant: section
170CJ(4).
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An applicant’s failure to attend is now grounds for the Commission to dismiss
an application: new section 170CIB.
Advisers and representatives
A new section 170CIA obliges the Commission to require legal and non-legal
representatives in any proceedings before the Commission to disclose their fee
arrangements. Any person who is engaged to represent an applicant for a fee is
defined as an ‘adviser’ under section 170HD, and will be liable for prosecution
if they breach section 170HE, which prohibits advisers from encouraging the
commencement or continuance of applications with no reasonable prospects for
success. Advisers are to be tested against an objective standard. They will be held
to have infringed this provision if, in hindsight, the Commission finds that there
were facts that ought reasonably to have been apparent to the adviser, or of which
the adviser should have become aware. Breach of section 170HE renders an
adviser liable for a fine of up to $2000 in the case of an individual and $10 000
for a body corporate: section 170HI.
Originally, this bill (and earlier versions of these proposals) limited this sanction to allegedly unmeritorious applications by employees. Following amendment
by the Senate, the enacted legislation extends the sanction to advisers who persist with unmeritorious defences: see section 170HE(2). (So the criticism of the
bill made in this review last year has been addressed in the enacted legislation.)
Registered organisations
At the time of writing, the pair of bills dealing with registered associations had
lapsed, after failing to pass the Senate prior to the Federal election. The bills had
already suffered amendment to secure their passage through the House of
Representatives. Given the propensity of the Senate to insist on substantial
amendment to contentious industrial legislation, detailed analysis of this legislation is best left until there is opportunity to thoroughly examine an enacted
statute. For a critique of an earlier draft of these proposals, see Forsyth (2000).
Nevertheless, some outline here is warranted, given the significance of this proposed legislation to the federal industrial relations landscape. Generally, this pair
of bills proposes to move all of the machinery for regulating registered organisations into a separate statute, to be called the Workplace Relations (Registered
Organisations) Act. This statute, structured like a miniature Corporations Act,
would include provisions for:
• registration, and cancellation of registration
• amalgamation and disamalgamation
• representation rights of organisations
• the making of rules for the governance of organisations (similar to corporate
constitutions, or what were once described as articles of association)
• membership, including provisions for resignation of membership and limits
on the organisations’ rights to charge arrears of dues
• ‘democratic control’, meaning mandatory procedures for election of office
bearers
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• records, accounts and conduct of officers
• penalty provisions.
Chapter 8, ‘Records, accounts and conduct of officers’, includes a division imposing Corporations Act-like duties on officers and employees. These duties (applicable only to the financial management functions of officers) include the classic
directors’ duties to act ‘in good faith’ and ‘for a proper purpose’ in the best
interest of the organisation, and include prohibitions on misuse of position and
information. These are comparable to the duties in sections 181, 182 and 183 of
the Corporations Act (Cwlth). The rhetoric surrounding introduction of the bills
was illuminating. The Minister, the Hon. Tony Abbott, concluded his second
reading speech by stating that the new governance rules enforced by this legislation would enable unions to ‘focus themselves as relevant, modern, serviceoriented bodies’, like modern corporations. This is consistent with the overall
attitude of the Howard government’s reform agenda. Traditionally, registered
organisations were conceived of as essential primary parties in the system. In
Jumbunna Coal Mine (NL) v. Victorian Coal Miners’ Association (1908) 6 CLR 309,
early legislation providing for registration of unions was held to be constitutionally
valid because the existence of unions acting as primary parties to industrial disputes was incidental to the system of conciliation and arbitration. This was despite
authority to the effect that the federal Parliament had no power to engender
new corporations per se. In the reform agenda, however, unions have been
re-conceptualised as third parties offering bargaining and grievance resolution
services to client members.
Prohibition of compulsory union fees
The Workplace Relations Amendment (Prohibition of Compulsory Union Fees)
Bill 2001 purported to achieve by legislative means what the Employment
Advocate failed to achieve in an application to the AIRC.5 The Employment
Advocate had argued that a clause in an enterprise bargain which allowed unions
to levy a ‘bargaining fee’ on non-members was in breach of the freedom of association provisions in Part XA of the Workplace Relations Act 1996. This was a
direct challenge to a union strategy to deal with the perceived ‘free rider’ problem: if non-union members can enjoy the benefits of successful enterprise bargaining without paying union dues, there is a clear financial disincentive to pay
those dues, at least in the short term. The Employment Advocate failed in the
first instance, and on appeal to the Full Bench. An employer, Electrolux Home
Products Pty Ltd, had more success before the Federal Court: see Electrolux Home
Products Pty Ltd v. Australian Workers Union [2001] FCA 1600 (14 November 2001,
Merkel J). In this case the employer was able to avoid inclusion of a provision
for bargaining fees in a certified agreement, by successfully arguing that inclusion of a bargaining fee clause was not a matter pertaining to the employment
relationship (as is required by section 170LI). Passage of this bill may therefore
now be unnecessary, except to foreclose the possibility of unions adopting informal means of attempting to impose such fees. The bill proposes a new section
298QA which would outlaw any demand for payment of compulsory bargaining
fees from non-members of the union. This proposed section would not make it
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illegal for a union to ask for a non-compulsory bargaining fee. However, agreeing or refusing to pay a non-compulsory bargaining fee would be added to the
list of ‘prohibited reasons’ in section 298L. This would mean that an employer
who discriminated against an employee (or did any of the other acts listed in
section 298K) because the employee had either agreed or refused to pay a bargaining fee to a union would contravene the freedom of association provisions.
Transmission of business
As it stands, Workplace Relations Act 1996 section 170MB provides that any successor, transmittee or assignee of the whole or part of a business will be bound
by the terms of any certified agreement binding on the original employing entity.
There is potential in complex business restructures (especially of government
activities into privatised businesses) for a new employer to be subject to a range
of different certified agreements and awards, depending on the union membership of employees carrying over to the new enterprise. In the case of award
employees, section 149 of the Act leaves room for the AIRC to make an order
that a new employer should not be bound by old awards. But there is no provision for the AIRC to arbitrate this issue in the case of certified agreements. That
there should be no provision is not surprising, given the primacy afforded to
mutual consent in the certified agreement provisions as a whole. If parties wish
to terminate old inappropriate agreements there is always the option of negotiation for new agreements. But this has been argued (in the Explanatory
Memorandum to the Workplace Relations Amendment (Transmission of
Business) Bill 2001) to cause ‘impediments to productivity and efficiency which
adversely affect the ongoing viability and profitability of the transmittee’s business’. So the bill proposed to make section 170MB ‘subject to any order of the
Commission’, and to include new sub-sections (2A) to (2D) setting out a procedure by which the Commission may make such an order. Only the employer
(not any employee or union) would be entitled to apply for an order, however
employees would be given an opportunity to make submissions before an order
was made. Unions would have standing to make submissions only where they
were requested to do so by a member who was employed by the new employer:
proposed sub-section (2D). If this bill becomes law in its present form, collective agreements will be able to be cancelled or varied before their expiry dates,
on the application of a new employer taking over the business. Employees would
no longer be guaranteed the benefits of their old agreements during the time
that they negotiated any new agreement with the new employer.
Small business and other measures
Several of the more contentious components of the original Workplace Relations
Legislation Amendment (More Jobs, Better Pay) Bill 1999 have been repackaged
into the Workplace Relations and Other Legislation Amendment (Small Business
and Other Measures) Bill 2001. Again, given the political sensitivity of these issues,
and the time that inevitably passes between writing and publication in scholarly
journals, elaborate exposition of the bill here is unwise.
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Unfair dismissals exemption
The most significant elements were introduction of an exemption from the unfair
(but not unlawful) dismissal provisions for employers of fewer than 20 people.
The 20 head count was to include casuals employed on a regular and systematic
basis for more than 12 months, but not other casual staff.
AWA procedures
This bill also contained a rewrite of the AWA procedures, ostensibly to remove
perceived impediments to more extensive use of this form of agreement-making
by small employers. Instead of a waiting period before an AWA comes into effect,
the bill proposed immediate effect, but with a ‘cooling off’ period during which
employees could withdraw. The requirement that an employer must not have
acted in an unfairly discriminatory manner in offering AWAs to some but not all
comparable employees (present section 170VPA) does not appear in the rewrite.
The AIRC would no longer have any direct role in approving AWAs which
did not pass the no-disadvantage test. Under this bill, it would fall to the
Employment Advocate to assess whether approval of an AWA, despite failure
of the no-disadvantage test, would not be contrary to the public interest: proposed sub-section 170VCB(5). The President of the AIRC would, however, be
empowered to establish principles to provide general guidance to the Employment
Advocate in the application of this public interest assessment: proposed section
170VCC.
Awards and small business
Under proposed sections 101A and 101B, the AIRC would be obliged to specifically invite any businesses with fewer than 20 employees to make written submission on a proposed award before the award could be made. Proposed section
101A sets out formal procedures and requirements for the service of logs of claim
and notices.
It is clear from the explanatory memorandum accompanying the bill that one
of the intended benefits of these somewhat elaborate procedures is to ensure that
the Commission is well aware of the extent to which an award will affect small
businesses before making any determination.
Secondary boycotts
An apparently minor amendment made in Schedule 5 of this bill would expand
the powers of the Australian Consumer and Competition Commission (ACCC)
to pursue compensation claims on behalf of persons affected by secondary boycotts. The power of the ACCC to take representative action is seen as an important and effective regulatory tool in policing the kind of trade practices
infringements that individuals alone are unlikely to pursue remedies for, mainly
because of cost and inconvenience. The provisions enabling representative actions
under section 87 of the Trade Practices Act 1974 were introduced by the Trade
Practices Amendment Act (No1) 2001 (Act No. 63 of 2001), effective from 26 August
2001, but the secondary boycott provisions (section 45D and 45E) were specifically excluded. This subtle amendment in the current bill would simply excise
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the exclusion of those provisions from this power, and so add to the arsenal of
sanctions against secondary boycott activity. A willingness to involve the ACCC
(formerly the TPC) in industrial disputes has distinguished the approach of
Coalition governments from that of Labor governments. The Hawke/Keating
industrial reforms in 1993 took the view that the AIRC was the appropriate
authority to monitor and police all forms of disputatious industrial activity, so
moved the secondary boycott sanctions out of the trade practices legislation into
the Industrial Relations Act 1988. This move was reversed by the Workplace Relations
and Other Legislation Amendment Act 1996, again reflecting the present government’s view that industrial activity should be subject to the same controls as commercial activity generally.
Other matters
Schedule 7 of this bill proposed a rewrite of the provisions for union rights of
entry to workplaces.
Schedule 8 would include specific provision prohibiting, in both awards and
certified agreements, the inclusion of any clauses which purport to restrict an
employer’s right to enter into contracts for services. There would be a limited
exception for textiles, clothing and footwear industry awards. For this industry,
notorious for exploitation of outworkers, proposed sub-section 89A(6B) would
allow an award clause to the effect that contract workers must be given terms
and conditions at least as favourable as award conditions.
Minimum entitlements for Victorian workers
The Bracks Government’s attempts to reintroduce Victorian industrial legislation via the Fair Employment Bill 2000 was successfully opposed in the Victorian
Parliament early in 2001. (For a brief survey of this bill, see Riley 2001.) The
federal Workplace Relations Amendment (Minimum Entitlements for Victorian
Workers) Bill 2001 sought to address the concerns (well-documented in the
Independent Report of the Victorian Industrial Relations Taskforce chaired by
Professor Ron McCallum) that Victorian workers had been disadvantaged by the
Kennett Government’s reference of industrial matters to the Commonwealth in
1997. This bill lapsed without debate.
PROTECTING
EMPLOYEE ENTITLEMENTS
The year 2001 saw several high profile corporate collapses which again focused
public attention on the problem of protecting employees’ accrued entitlements
in the face of employer insolvency. The HIH collapse, the One-Tel disaster, and
most recently the Ansett Airlines crisis contributed to the continuing political
debate on the best means of dealing with this issue. Further administrative
solutions were introduced. Just prior to the announcement of the November federal election, the Minister, the Hon. Tony Abbott, announced a new General
Employee Entitlements Redundancy Scheme (GEERS) to replace the Employee
Entitlements Support Scheme (EESS) introduced after the National Textiles collapse in January 2000. GEERS, which operated from 12 September 2001,
promises to pay all unpaid wages, all accrued annual leave, all accrued long
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service leave, all pay in lieu of notice, and up to 8 weeks’ redundancy pay, up to
a maximum based on an annual wage of $75 200 (indexed annually).6
The Ansett collapse, involving some 16 000 employees, presented a particularly distressing problem. The Howard government promised that Ansett employees would receive all entitlements, regardless of the outcome of the sale of Ansett
and Ansett assets, and this promise was to be funded by a special levy on all airline passenger tickets. The necessary legislation (the Air Passenger Ticket Levy
(Collection) Act 2001 and the Air Passenger Ticket Levy (Imposition) Act 2001) was
passed urgently by the House of Representatives and the Senate on 26 and
27 September respectively.
No legislative solutions were debated this year. ALP Leader, the Hon. Kim
Beazley, introduced a private member’s bill, the Corporate Responsibility and
Employment Security Bill 2001, on 24 September, but this lapsed without debate.
This bill attempted to revive a Labor party proposal to amend both the
Corporations Act and the Workplace Relations Act 1996 to extend liability for
employee entitlements (including rights to reinstatement) to related corporate
entities. These amendments have been re-tabled persistently since their initiation after the Waterfront dispute of 1998 but have never been seriously debated.
AROUND
THE STATES
New South Wales
The Anti-Discrimination Amendment (Carers Responsibilities) Act 2000 (NSW) was
proclaimed to commence on 1 March 2001. This legislation (described in this
review last year, see Riley 2001: 159) brings New South Wales into line with other
states (except South Australia) to make discrimination on the basis of an
employee’s carer status unlawful.
The Industrial Relations Amendment (Leave for Victims of Crime) Act 2001 (NSW)
inserted sections 72AA to 72AG into the Industrial Relations Act 1996 (NSW), to
enable employees who have been the victims of violent crimes unpaid leave to
attend court proceedings.
The Industrial Relations Amendment (Casual Employees Parental Leave) Act 2001
amends to entitlements of long term regular casual employees for unpaid parental
leave. Now these employees are entitled to leave after 12 months, rather than
two years.
The Long Service Leave Legislation Amendment Act 2001 (NSW) amended
statutes providing for long service leave, by allowing young employees to begin
accruing pro-rata entitlements as soon as they start working. This amendment
is effective from 1 August 2001.
Major changes to workers’ compensation caused considerable political turbulence in NSW during 2001, most of the debate being concerned about the extent
to which workers could continue to pursue common law claims for workplace
illness and injury. Workers’ compensation is a highly specialised field and the
changes to the system are complex, so readers with an interest in these changes
are advised to consult specialist publications and advisers. The amending statutes
were:
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• The Workers Compensation Legislation Amendment Act 2000, No. 87 of 2000,
assented to on 6 December 2000.
• The Workers Compensation Legislation Amendment Act 2001 (No. 2), No. 61 of
2001, assented to on 17 July 2001.
• The Workers Compensation Legislation Further Amendment Act 2001, No. 94 of
2001, assented to on 6 December 2001.
Queensland
The Industrial Relations and Another Act Amendment Act 2001 (Qld) received assent
on 11 May 2001 and came into effect on 3 June 2001. This legislation reduced
from 15 to 10 years the qualifying period for long service leave, and allowed for
pro-rata entitlements after only 7 years: see Industrial Relations Act 1999 (Qld)
section 43. The new provisions entitle employees to 8.6667 weeks’ leave after
10 years of continuous service, and permit clauses in industrial agreements for
cashing out leave entitlements: section 53.
The Industrial Relations Amendment Act 2001 (Qld) received assent on
3 December 2001. The main features of this Act are:
• New provisions extend entitlements under Chapter 2, Part 2, ‘Family Leave’
to ‘long term casual employees’, defined in section 15A as a person engaged
‘on a regular and systematic basis during a period of at least 1 year immediately before the employee seeks access to an entitlement’.
• Part 4 of the Dismissals chapter, dealing particularly with procedures for
retrenchments involving more than 15 persons, have been rewritten (see sections 86 to 90B).
• Several amendments have been made to guarantee pay equity for women.
Awards must now provide for ‘equal remuneration for men and women
employees for work of equal or comparable value’: section 126. Likewise,
agreements cannot be certified unless the Commission is satisfied that they
remunerate men and women equally: see sections 156 and 157. These pay
equity amendments are scheduled to commence on 1 May 2002.
• Section 275, which empowers the Commission to declare persons to be
employees, has been amended to extend this power. The Commission may
now also declare a person to be an employer.
• A new sub-section 287(2) has been inserted to oblige a Full Bench of the
Commission to make a minimum wage determination at least once each
calendar year.
Victoria
As noted above, the Fair Employment Bill 2000, noted in this review last year,
failed to secure passage through the Coalition party-controlled upper house. The
Victorian Premier, Mr Bracks, introduced the Commonwealth Powers (Industrial
Relations) (Amendment) Bill 2001 on 22 August 2001, to enable the changes to
Part XV of the Workplace Relations Act 1996 (Cwlth) proposed by the Federal
Government as a compromise (see above). At the time of writing, the fate of this
proposal was uncertain.
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Another contentious Victorian proposal in 2001 was the Crimes (Workplace
Deaths and Serious Injuries) Bill introduced on 22 November 2001. This was
also known as the Crimes (Industrial Manslaughter) Bill 2001 in an early draft––a
title no doubt considered too blunt following extensive debate on the proposal.
The objective of this bill was to address public concern about an apparent lack
of adequate sanctions against corporations and corporate controllers who profit
from highly dangerous work practices. The bill, if enacted, would create new
criminal offences of corporate manslaughter, and negligently causing serious
injury. The bill would increase financial penalties for corporations and would also
impose criminal liability on senior officers, provided the officer was ‘organisationally responsible’, for the conduct, or failure to act, which caused the death
or serious injury at issue: see proposed section 14C.
Western Australia
The newly-elected Gallop Labor Government has foreshadowed a major review
of Western Australian industrial laws, which is expected to involve significant
changes to the arrangements for individual workplace agreements. On 21 March
2001, the Minister for Labour Relations, the Hon. John Kobelke, announced
that any workplace agreements registered after that date would be valid for only
six months after the introduction of new legislation.7 At the time of writing, a
bill proposing repeal of the Workplace Agreements Act 1993 (WA) had been
tabled in the Legislative Council, but had not been debated: see the Workers’
Rights Reinstatement and Protection Bill 2001, tabled on 13 December 2001.
Tasmania
After a long period of political debate, the Industrial Relations Amendment Act 2000
(Tas.) has been enacted, effective from 1 January 2001. The Bacon Labor
Government was forced to compromise on some of the provisions in its
original bill to ensure passage through the Liberal Coalition-controlled
Legislative Council. The principal changes include the abolition of the Office
of the Enterprise Commissioner (the whole of Part IVA Division 3 of the Industrial
Relations Act 1984 (Tas.) has been repealed). Enterprise agreements are now
approved following a hearing by a member of the Tasmanian Industrial
Commission. Much of the new Act is machinery to give effect to this institutional reorganisation.
Early proposals included a ‘no net detriment’ test for Tasmanian enterprise
bargains, similar to the ‘no-disadvantage’ test applied to federal certified agreements and AWAs. However this proposal failed to achieve support in the
Legislative Council. Instead, the Commissioner must refuse to approve an agreement if it ‘is not fair in all the circumstances’: section 61J(1)(f).
The Amendment Act also rewrote provisions for unfair dismissals (see new
sections 30 and 30A). Formerly, section 31 applied the ‘standards of general application contained in Part II of the International Labour Organisation’s Convention
concerning the Termination of Employment at the Initiative of the Employer’.
(These provisions are reproduced in Schedule 10 of the Workplace Relations Act
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1996.) Now the standards to be applied are expanded in section 30. Notable differences between the old and the new are the inclusion of ‘non-membership of
a trade union’ and an expanded list of discriminatory grounds as impermissible
reasons for termination. ‘Sexual preference’ and ‘physical or intellectual disability’ are now included in the list––with the usual exception for the ‘inherent nature
of the work’. Under sub-section 30(5), the employer bears the onus of proving
the existence of a valid reason for termination. Section 30A provides that persons employed under Federal awards may apply to the Tasmanian Commission
if they are excluded from the federal unfair dismissal provisions. The time limit
for making an application to the Commission has been extended from 14 days
to 21 days: section 29(1B).
Coverage of the Tasmanian legislation was expanded, by amendment of the
definition of employee in section 3 to include trainees, apprentices and outworkers. ‘Outworker’ means a person who performs the work of garment
manufacture outside the employer’s premises.
Tasmanian employees now have a right to inspect and take copies of the
employer’s records relating to their employment: new sub-section 75(1A).
NOTES
1. Act No. 7 of 2001, assented to on 22 March 2001.
2. Act No. 100 of 2001, assented to on 22 August 2001.
3. See Senate Employment, Workplace Relations, Small Business and Education Legislation
Committee Report on its consideration of provisions in the package of Workplace Relations
reform bills tabled in 2000 (September 2000), paragraphs 1.10 – 1.13.
4. See for instance Letter to the Editor from Mark Paterson (CEO of the ACCI), Unfair dismissal laws are hurting jobs. Australian Financial Review 7 December 2001, 71.
5. See Guidice P, Kaufman SDP, Whelan C (2001) Re Accurate Factory Maintenance Labour Hire
Enterprise Agreement 2000–2003 and Other Agreements, 12 October, Print 910205.
6. Media Release, Minister Tony Abbott, ‘Even Better Arrangements to Protect Employee
Entitlements’, dated 20 September 2001, http://www.dewrsb.gov.au/ministers, last consulted
3 October 2001.
7. Media Statement, ‘Time limit for Workplace Agreements’, dated 21 March 2001,
http://www.mediastatements.wa.gov.au, last consulted 11 December 2001.
REFERENCES
Forsyth A (2000) Trade union regulation and the accountability of union office-holders: examining the corporate model. Australian Journal of Labour Law 13, 28–49.
Riley J (2001) Industrial legislation in 2000. Journal of Industrial Relations 43(2), 148–160.