JOELLENRILEY*
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 regu-latory controls on minimum terms and conditions of employment, so that chang-ing hirchang-ing 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 worker-friendly proposals. As the following excursion through the highlights of legisla-tive 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 com-plete its programmed rewrite of federal industrial laws.
THEFEDERALGOVERNMENT’S‘THIRD 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 pro-gram 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 2001,1and the Workplace Relations Amendment
(Termination of Employment) Act 2001.2When the 39th Parliament was dissolved
on 8 October 2001, prior to the 10 November election, three bills amending the Workplace Relations Act 1996had 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 Amend-ment (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 indus-trial 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.3In fact, the process of award simplification
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 dis-missals 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 2001achieved some of the changes sought in earlier attempts––but by no means all. The special small business exemp-tion is contained in a separate bill (see the Workplace Relaexemp-tions 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 employ-ment 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 employ-ment’ 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 dis-missal under section 170CK (for some discriminatory reason) are unaffected by this amendment.
Small business concession
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 applica-tions 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 satis-fied 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 con-tested. 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 deter-mining 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
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 sanc-tion to allegedly unmeritorious applicasanc-tions by employees. Following amendment by the Senate, the enacted legislation extends the sanction to advisers who per-sist 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 legis-lation 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 pro-posed legislation to the federal industrial relations landscape. Generally, this pair of bills proposes to move all of the machinery for regulating registered organi-sations 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
• records, accounts and conduct of officers • penalty provisions.
Chapter 8, ‘Records, accounts and conduct of officers’, includes a division impos-ing Corporations Act-like duties on officers and employees. These duties (applic-able 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 legis-lation would enable unions to ‘focus themselves as relevant, modern, service-oriented 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 dis-putes 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 thirdparties 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
illegal for a union to ask for a non-compulsory bargaining fee. However, agree-ing or refusagree-ing to pay a non-compulsory bargainagree-ing 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 bar-gaining 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 suc-cessor, 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 member-ship 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 provi-sion 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 negoti-ation 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 busi-ness’. 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 pro-cedure 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, collec-tive 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
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: pro-posed 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 speci-fically invite any businesses with fewer than 20 employees to make written sub-mission 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
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 govern-ment’s view that industrial activity should be subject to the same controls as com-mercial 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 legisla-tion 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
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 particu-larly distressing problem. The Howard government promised that Ansett employ-ees 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 air-line passenger tickets. The necessary legislation (the Air Passenger Ticket Levy (Collection) Act 2001and 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 initia-tion 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.
• 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 immedi-ately 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 sec-tions 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
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 ‘organ-isationally 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.7At 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 institu-tional reorganisation.
Early proposals included a ‘no net detriment’ test for Tasmanian enterprise bargains, similar to the ‘no-disadvantage’ test applied to federal certified agree-ments and AWAs. However this proposal failed to achieve support in the Legislative Council. Instead, the Commissioner must refuse to approve an agree-ment if it ‘is not fair in all the circumstances’: section 61J(1)(f).
1996.) Now the standards to be applied are expanded in section 30. Notable dif-ferences 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 disabil-ity’ 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 per-sons 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 out-workers. ‘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 dis-missal laws are hurting jobs.Australian Financial Review7 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: examin-ing the corporate model. Australian Journal of Labour Law13, 28–49.
