Post Rudd changes to Workchoices

1. Post Rudd changes to Workchoices Information for this handout has been sourced from workforce Guardian website.(not everything is legislation yet)

2. Existing AWAs • AWAs made prior to the implementation date of Labor’s Transition Bill (due early in 2008) will remain in force until the earlier of their stated expiry date or 31 December 2012.

3. New system will come into operation by 1.1.2010 • Changes will be introduced sequentially • There will be public consultation and comment

4. The first change is … • Workplace Relations Amendment (Transition to Forward with Fairness) passed 19.3.08 • The primary focus of this legislation is the abolition of AWAs and the replacement by Individual Transitional Employment Agreements- ITEAs

5. Individual Transitional Employment Agreements (ITEAs) • During the two year transitional period an employer who has any employee engaged on an AWA as at 1 December 2007, will be able to make an ITEA with a new employee or an existing employee whose terms and conditions are governed by an AWA. They will have a nominal expiry date of 31 December 2009.  They must not disadvantage the employee compared to an applicable collective agreement, applicable award or the Australian Fair Pay and Conditions Standard (AFPCS).

6. What the future holds….

7. Key dates in relation to Labor’s proposed amendments to workplace relations policy at this stage are: • Early 2008: Transitional legislation likely to prevent making of further AWAs. • 31 December 2009: ability to utilise ITEAs ceases and all existing ITEAs will expire. • 1 January 2010: introduction of legislation to ensure employees earning above $100,000 a year are award-free. • 1 January 2010: all employees of a corporation will have a statutory entitlement to severance pay on redundancy (according to the current Federal award scale) where the business employs 15 or more employees. • 1 December 2012: all AWAs will have reached their nominal expiry date (and may not have effect after this date).

8. Proposed… • National Employment Standards • Ten National Employment Standards will apply to all employees, covering: • Hours of Work • Parental Leave • Flexible Work for Parents • Annual Leave • Personal, Carers and Compassionate Leave • Community Service Leave • Public Holidays • Information in the Workplace • Notice of Termination and Redundancy • Long Service Leave

9. Key points in the proposed Labor Government changes • A new award system will apply to employees earning less than $100,000 but genuine non-union collective agreements could apply to these employees. • Only employees earning over $100,000 will be able to have individual agreements (more flexible common law agreements). • Awards will be modernized and simplified and limited to 10 matters. • There will be a safety net of ten National Employment Standards. • All awards and collective agreements will be required to contain a flexibility clause to permit individual variations between the employer and employees. • Businesses with fewer than 15 employees will be protected from unfair dismissal claims during the first 12 months of employment. • Individual Transitional Employment Agreements (ITEAs) may be made during the transition period subject to certain conditions and transitional arrangements will apply for existing AWAs.

10. Award Modernisation and Simplification • Labor’s system is underpinned by a streamlined award system for all employees earning less than $100,000.  This process will be completed over a two year period which is why the new system will not come into force until 1 January 2010.

11. These new awards will be limited to ten matters as follows:  • Minimum wages (including skill-based classifications and career structures, incentive based payments and bonuses, wage rates, and arrangements for apprentices and trainees) • The type of work performed (eg. permanent, casual work and flexible arrangements) • Arrangements for when work is performed (eg. hours of work, rostering, rest breaks, meal breaks) • Overtime rates for employees working long hours • Penalty rates for employees working unsocial, irregular or unpredictable hours on weekends or public holidays, and as shift workers • Provisions for minimum annualised wage or salary arrangements as an alternative to penalty rates etc • Allowances (including reimbursements, higher duties and disability-based payments) • Leave, leave loadings and arrangements for taking leave • Superannuation • Consultation, representation and dispute settling procedures.

12. Collective Agreements • Collective enterprise bargaining will be at the centre of Labor’s industrial relations system.  However, union membership will be voluntary and unions do not have an automatic right to be involved in enterprise collective bargaining.  Genuine non-union collective agreements can be made, without the need to notify an eligible union that negotiations for a non-union agreement have commenced.

13. Individual Flexibility • Awards and collective agreements must contain a flexibility clause enabling an employer and employees to make individual arrangements that suit them.  This may include matters such as:

14. Rostering and hours of work • All up rates of pay • Provisions that certain award conditions do not apply where the employee is paid above a fixed percentage as set out in the award • An arrangement to allow an employee to start and finish work early to allow them to collect their children from school without the employer paying additional penalty rates for the early start.

15. More Flexible Common Law Agreements • The Government intends to implement more flexible Common Law agreements for employees earning more than $100,000 who will not be covered by the award system.  The ten National Employment Standards will apply to such employees. 

16. Definition of $100,000 Threshold • The calculation of the $100,000 threshold will be the employee’s guaranteed ordinary earnings and includes: • Pay received for ordinary hours of work • Guaranteed overtime • Other monetary allowances that are a guaranteed part of the employee’s normal remuneration arrangements. • The threshold will be indexed in line with annual growth in ordinary time earnings for full time adult employees. 

17. Unfair Dismissal • Employees who have been employed for less than a year in a business that employs fewer than 15 employees will not be able to bring a claim for unfair dismissal.

18. Industrial action • The existing arrangements concerning industrial action and secondary boycotts will remain.  Protected strike action will only be possible in limited circumstances during bargaining for a collective agreement, subject to employees approving of the action by secret ballot.  Secondary boycotts will be regulated by the Trade Practices Act as at present. • Where industrial action occurs or is threatened, Fair Work Australia will be required to deal with such matters quickly and effectively.  Those affected by unprotected industrial action will be able to apply directly to the Court for orders

19. Right of entry • The existing arrangements for union right of entry will be retained.  A union official will be able to enter premises to hold discussions not only with members of the union, but also those who are eligible to be members of the union.