WorkChoices and who is covered

1. WorkChoices and who is covered

2. Identifying constitutional corporations • Incorporated bodies carrying out commercial activities to earn revenue • Are not sole traders or partnerships Two tests: • Employer must be incorporated (eg Pty Ltd in name) • Employer’s trading or financial activities must be significant or substantial • Seek legal advice if you are unsure

3. Modern award protection • Award simplification • Matters in the Fair Pay and Conditions Standard • Long service leave, superannuation, jury service, notice of termination • Changes to allowable matters • Matters that are not allowable • Award Review Taskforce to recommend strategies to rationalise awards and classification structures

4. AFTER WORKCHOICES • What happens to awards and existing industrial instruments?

5. Transitional arrangements • State employers moving into WorkChoices • Unincorporated businesses currently in the federal system

6. 1. State employers moving into WorkChoices • Existing awards become Notional Agreements Preserving a State Award (NAPSA) • NAPSAs apply on commencement of WorkChoices • NAPSAs preserve terms and conditions of employment under State awards & State or Territory legislation

7. 3 years from commencement of WorkChoices 3 years from commencement of original agreement 3 years from commencement of WorkChoices 5 years from commencement of WorkChoices

8. NAPSAs • NAPSA preserved award terms: • Annual leave; personal/carer’s leave; parental leave; long service leave; jury service; superannuation • The Standard applies to NAPSAs unless preserved terms are more generous • NAPSAs cease: • 3 years after WorkChoices commencement; or • When a new agreement is negotiated; or when a federal award is made

9. Preserved State Agreements • Existing agreements become Preserved State Agreements (PSAs) • PSAs apply on commencement of WorkChoices • PSAs include terms of employment under State Agreements & State or Territory legislation • PSAs are not subject to the Standard

10. PSAs • Nominal Expiry Date (NED) of a PSA is: • The date on which the original agreement would have expired, unless that date is more than 3 years after the commencement of the agreement. Where this is the case, the NED is the last day of that 3 year period • PSAs continue to operate past NED, provided they are not terminated or replaced by a new agreement

11. 2. Unincorporated businesses currently in the federal system • 5 year transitional period to become incorporated to stay under federal system • Businesses that have not incorporated after 5 years will move into the state systems

12. Federal transition • Contain preserved terms • Standard does not apply (except in VIC)

13. The Australian Fair Pay Commission has been established

14. Australian Fair Pay Commission Will set and adjust: • An overall Federal Minimum Wage (FMW) for each hour worked • Special FMWs for juniors, disabled, trainees and piece workers • Classification wages (Australian Pay and Classification Scales) • Casual rates (default casual loading is currently 20%) • www.fairpay.gov.au

15. The Fair Pay and Conditions Standard • Wages as set by the Fair Pay Commission • Legislated minimum conditions: • Maximum ordinary hours – 38 hours per week (plus reasonable additional hours) • Annual leave – 4 weeks paid per year (5 weeks for certain shift workers)

16. Note: • Employees not covered by Aust Pay and Classification scale must be paid at least minimum wage. • People may be expected to work “reasonable additional hours” • Hours may be averaged by agreement over 12 months • Up to 2 weeks annual leave can be cashed out

17. The Fair Pay and Conditions Standard • Personal/carer’s leave – 10 days paid per year, 2 days unpaid per occasion, and 2 days paid compassionate leave per occasion -cumulative • Parental leave – 52 weeks unpaid- includes long term casuals • Transfer to a safe job

18. The Fair Pay and Conditions Standard • Interaction with workplace agreements, awards and contracts of employment • More favourable entitlement prevails

19. Lily employed under federal Coal Mining Industry (Staff) Award 2004 35 ordinary hours of work per week (overtime for extra hours) Continues to work 35 ordinary hours under WorkChoices while covered by Award (overtime for extra hours)

20. Roland is employed under The Other Cheek Pty Ltd Agreement made after the commencement of WorkChoices Agreement entitles Roland to 84 hrs of paid personal leave per year to accumulate for no longer than 4 years The Standard prevails in relation to the accrual of leave as it is more favourable The Agreement prevails in relation to the amount of leave, as it is more favourable

21. Lucy has an AWA made after commencement of WorkChoices Her AWA states she is entitled to 52 weeks maternity leave, with the first 6 weeks being paid leave. Under WorkChoices, as the AWA is more favourable in providing paid leave, her AWA prevails in this regard

22. Sarah is employed under Nurses (South Australian Private Sector) Award 2003 As she regularly works seven days a week, her award entitles her to 6 weeks annual leave per year As her award is more generous than the Standard, it prevails while she remains covered by the award. More generous entitlements will also apply to new employees covered by the award

23. Agreement Makingunder Work Choices

24. The new role of the OEA • Providing advice to employers and employees on agreement making • Explaining content of agreements to cater for employee specific needs • Checking agreements for prohibited content • Issuing certificates to bargaining agents • Issuing transmission of business notices • Making available all statutory forms

25. Pre-Reform Agreements (AWAs) • Current agreements remain valid and continue to operate • Pre-reform agreements can be replaced by a WorkChoices agreement before the nominal expiry date • The Standard does not apply to these agreements • Pre-reform agreements cannot be varied

26. Making a Workplace Agreement – The 6 Steps Assistance www.oea.gov.au Tel 1300 366 632 5. Lodgement of a Workplace Agreement

27. Step 1 – Selecting the type of Workplace Agreement • Australian Workplace Agreements • Employee Collective Agreements • Union Collective Agreements • Union Greenfield Agreements • Employer Greenfield Agreements • Multiple Business Agreements

28. Step 2 – Identify the current Industrial Instrument • Federal Awards • Protected Award conditions • Rest breaks • Incentive Based Payments and Bonuses • Annual Leave Loading • Public Holidays • Allowances • Loading and Penalty Rates (Can be bargained away)

29. Step 3 – Drafting and Negotiating the Workplace Agreement Drafting • Minimum entitlements of the Standard must be met or exceeded • Protected Award Conditions – unless expressly excluded or modified • Required Content • Nominal Expiry Date; • Dispute Resolution Procedures • Prohibited Content

30. A dispute resolution clause is a must or otherwise it is read into the agreement.

31. The OEA’s Role in Relation to Prohibited Content • What is Prohibited Content? • Prohibited content is content that cannot be included in workplace agreements. A term of an agreement that contains prohibited content is void and cannot be enforced if it is included in a workplace agreement. Rest of the agreement is still valid.

32. What content is prohibited in agreements? • Terms that encourage or discourage union membership • Terms allowing for industrial action during the life of the agreement • Terms dealing with disclosure of details of workplace agreement • Terms providing for remedies for unfair dismissal • Term preventing the making of an AWA • Discriminatory terms • Matters that do not pertain to the employment relationship • Deductions from pay or wages for union fees • Provision of paid leave to attend training or meetings conducted by a trade union • Restrictions on the engagement of independent contractors or labour hire workers see regs

33. Prohibited Content (cont) • What happens if an agreement is lodged with Prohibited Content? If recklessly lodged – fine $6,600 (ind) $33,000 (corp) • How can I make sure I have not included Prohibited Content in an agreement? Request info from OEA before approval by employees

34. Step 3 – Drafting and Negotiating the Workplace Agreement (cont) Negotiating • Bargaining Agents apply for a certificate to act must be appointed in writing. • Bargaining Periods/Industrial Action protected industrial action during agreement negotiations but not during the life of the agreement. • Employer must give Bargaining Agent reasonable opportunity to view the AWA so they can meet and confer.

35. Step 4 – Offering Workplace Agreements: Pre-lodgement Procedures

36. Employee Information Statement

37. Step 5 - Lodgement of a Workplace Agreement

38. Employer Declaration Form

39. Workplace Agreements Online (main page)

40. Agreement Making – Made or ApprovedOperational

41. Agreement making – Made or Approved

42. Step 6 – Operation of a Workplace Agreement • Can operate for up to 5 years (except Employer Greenfields – 12 months) • Transmission of Business

43. Transmission of Business • Notice to employees- 28 days after commencement • Notice to OEA- 14 days post employee notice • Applies for a maximum of 12 months

44. Hierarchy of Federal Industrial Instruments Fair Pay &Conditions Standard Protected Award Conditions Australian Workplace Agreement Collective Agreement FederalAward

45. Step 6 – Operation of a Workplace Agreement (continued) Terminating a Workplace Agreement • Termination by agreement between the parties • Unilateral termination (in defined circumstances); • When it is replaced by another agreement; or • If the Court declares the agreement void

46. Making a Workplace Agreement – The 6 Steps Assistance www.oea.gov.au Tel 1300 366 632 5. Lodgement of a Workplace Agreement

47. OEA Website Additional Information