The
Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, popularly known as
Work Choices, was a Legislative Act of the Australian Parliament that came into effect in March 2006 which involved many controversial amendments to the
Workplace Relations Act 1996The Workplace Relations Act 1996 is an Australian law passed by the Howard Government after coming into power in 1996. It replaced the previous Labor Government's Industrial Relations Act 1988. It started operation on 1 January 1997 and provided for the continuation of the federal award system...
, the main federal statute which regulated industrial relations in
AustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
.
Work Choices was passed by the Howard Government in 2005 and was designed to improve employment levels and national economic performance by dispensing with unfair dismissal laws for companies under a certain size, removing the "no disadvantage test" which had sought to ensure workers were not left disadvantaged by changes in legislation, thereby promoting individual efficiency and requiring workers submit their certified agreements directly to Workplace Authority rather than going through the
Australian Industrial Relations CommissionThe Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
. It also significantly compromised a workforce's ability to legally go on strike, requiring workers to bargain for previously guaranteed conditions without collectivized representation, and significantly restricting
trade unionA trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
activity and recruitment on the work site.
The passing and implementation of the new laws was strongly opposed by the left side of politics, particularly the trade union movement. Critics argued that the laws stripped away basic employee rights and were fundamentally unfair. The
Australian Council of Trade UnionsThe Australian Council of Trade Unions is the largest peak body representing workers in Australia. It is a national trade union centre of 46 affiliated unions.-History:The ACTU was formed in 1927 as the "Australian Council of Trade Unions"...
consistently ran television advertisements attacking the new laws.
Work Choices was a major issue in the 2007 federal election, as the
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
(ALP) vowed to abolish it. Labor under
Kevin RuddKevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010...
subsequently won the election, with Work Choices being one of the biggest issues of the campaign, and repealed the entirety of the WorkChoices legislation shortly after assuming office.
Work Choices changes
- The formation of a single national industrial relations system in relation to incorporated
Incorporation is the forming of a new corporation . The corporation may be a business, a non-profit organisation, sports club, or a government of a new city or town...
corporationA corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s, to replace the separate State and federal systems;
- Establishment of a body to be known as the Australian Fair Pay Commission
The Australian Fair Pay Commission was an Australian legislative body created under the Howard Government's "WorkChoices" industrial relations law in 2006 to set the minimum rate of pay for workers...
, to decide minimum wageA minimum wage is the lowest hourly, daily or monthly remuneration that employers may legally pay to workers. Equivalently, it is the lowest wage at which workers may sell their labour. Although minimum wage laws are in effect in a great many jurisdictions, there are differences of opinion about...
s, in place of National Wage Cases at the Australian Industrial Relations CommissionThe Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
(AIRC);
- Streamlining of Certified Agreement
Enterprise bargaining is wage and working conditions being negotiated at the level of the individual organisations. Once established, they are legally binding on employers and employees....
and Australian Workplace AgreementAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
making, including increasing the maximum life of agreements from three years to five years;
- A reduction in the number of "allowable matters", which could be covered by awards
- Creation of five minimum workplace conditions;
- Exemption of companies with fewer than 101 employees from unfair dismissal
Unfair dismissal is the term used in UK labour law to describe an employer's action when terminating an employee's employment contrary to the requirements of the Employment Rights Act 1996...
laws;
- Exemption of all companies from unfair dismissal laws, where a dismissal is for a bona fide operational reason;
- Increased restrictions on allowable industrial action
Industrial action or job action refers collectively to any measure taken by trade unions or other organised labour meant to reduce productivity in a workplace. Quite often it is used and interpreted as a euphemism for strike, but the scope is much wider...
;
- Mandating secret ballot
The secret ballot is a voting method in which a voter's choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery. The system is one means of achieving the goal of...
s for industrial action;
- Outlawing pattern bargaining
Pattern bargaining is a process in labour relations, where a trade union gains a new and superior entitlement from one employer, and then uses that agreement as a precedent to demand the same entitlement or a superior one from other employers....
and industry-wide industrial action.
Introduction of the Bill into Parliament
The
Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was introduced into the
Australian House of RepresentativesThe House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
on 2 November 2005 by the Minister for Employment and Workplace Relations,
Kevin AndrewsKevin James Andrews is an Australian politician and member of the Liberal Party of Australia. He is a member of the House of Representatives and was Minister for Immigration and Citizenship in the Howard Government, having previously been Minister for Employment and Workplace Relations from 7...
.
The Australian Labor Party claimed it was not provided with enough copies of the Bill when it entered the Parliament. They mounted a campaign against the Bill in Parliament throughout the day. During Question Time, Opposition members continually interjected while Government members were speaking, leading the Speaker (and later the Deputy Speaker) to remove 11 of them.
The Bill passed through the House of Representatives on 10 November and was introduced into the Senate later that day by Special Minister of State, Senator
Eric AbetzEric Abetz , has been a Liberal Party member of the Australian Senate since February 1994, representing the state of Tasmania. He is currently Leader of the Opposition in the Senate. He was educated at the University of Tasmania and was a barrister and solicitor before entering politics...
. The Bill was passed, with amendments, by the Senate, by a vote of 35-33 on 2 December 2005.
The Bill received the
Royal AssentThe granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
on 14 December and the parts concerning the Australian Fair Pay Commission, wages for school based trainees and apprentices, and redundancy pay for small employers became enacted immediately from that date.
The Minister for Employment and Workplace Relations released the first set of regulations for the bill on 17 March 2006 and following that the complete act - titled in full as the
Workplace Relations Act 1996The Workplace Relations Act 1996 is an Australian law passed by the Howard Government after coming into power in 1996. It replaced the previous Labor Government's Industrial Relations Act 1988. It started operation on 1 January 1997 and provided for the continuation of the federal award system...
, Act No. 86 of 1988 as amended - was
proclaimedA proclamation is an official declaration.-England and Wales:In English law, a proclamation is a formal announcement , made under the great seal, of some matter which the King in Council or Queen in Council desires to make known to his or her subjects: e.g., the declaration of war, or state of...
by Australia's
Governor-GeneralA Governor-General, is a vice-regal person of a monarch in an independent realm or a major colonial circonscription. Depending on the political arrangement of the territory, a Governor General can be a governor of high rank, or a principal governor ranking above "ordinary" governors.- Current uses...
Michael Jeffery. The act commenced on 27 March 2006.
In July 2007, a new biography of
John HowardJohn Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
has said that he pushed the Work Choices legislation through in 2006 so that it wouldn't be announced in an election year, and that several cabinet ministers had concerns that the legislation would disadvantage too many workers, which they expressed several times.
Opposition to the changes
In response to the
Howard GovernmentThe Howard Government refers to the federal Executive Government of Australia led by Prime Minister John Howard. It was made up of members of the Liberal–National Coalition, which won a majority of seats in the Australian House of Representatives at four successive elections. The Howard Government...
's Work Choices package, the
Australian Council of Trade UnionsThe Australian Council of Trade Unions is the largest peak body representing workers in Australia. It is a national trade union centre of 46 affiliated unions.-History:The ACTU was formed in 1927 as the "Australian Council of Trade Unions"...
, the peak association for Australian trade unions, launched its "Your Rights at Work" campaign opposing the changes. The campaign has involved mass rallies and marches, television and radio advertisements, judicial action, and e-activism.
The week of action culminated on Friday 1 July 2005 with a "SkyChannel" meeting of union delegates and members organised by
Unions NSWThe Labor Council of New South Wales is a representative body of Trade union organisations in the State of New South Wales, Australia. As of 2005 there are 67 unions and 8 Rural and Regional Trades & Labor Councils affiliated to the Labor Council, representing 800,000 workers in NSW...
. The meeting was followed by a large rally in Sydney and events in regional areas.
Individual State Governments have also opposed the changes. For example, The Victorian Government has introduced the Victorian Workplace Rights Advocate as a form of political resistance to the changes.
In December 2005, the federal caucus of the
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
initiated an
Industrial Relations TaskforceThe Industrial Relations Taskforce is a taskforce established in December 2005 by the caucus of the Federal Parliamentary Labor Party of Australia to examine the effects of the Government’s industrial relations changes on individuals, families and communities...
in order to investigate the adverse effects of the legislation, chaired by
Brendan O'ConnorBrendan Patrick O'Connor , Australian politician, has been an Australian Labor Party member of the Australian House of Representatives since November 2001, representing the Division of Burke, Victoria 2001–04 and the Division of Gorton since October 2004...
, with special emphasis on the impact on regional and rural communities, women and young people. During 2006, the Taskforce travelled to every state and territory in Australia, convening meetings with individuals, employers, church and community groups and trade unions, collecting testimony in order to inform federal Labor's policy response and to publicise instances of actual exploitation. An interim report, 'Work Choices: A Race to the Bottom' was launched by Opposition Leader
Kim BeazleyIn the October 1998 election, Labor polled a majority of the two-party vote and received the largest swing to a first-term opposition since 1934. However, due to the uneven nature of the swing, Labor came up eight seats short of making Beazley Prime Minister....
at
Parliament House, CanberraParliament House is the meeting facility of the Parliament of Australia located in Canberra, the capital of Australia. The building was designed by Mitchell/Giurgola Architects and opened on 1988 by Elizabeth II, Queen of Australia...
on 20 June 2006, and widely distributed.
Campaigns
The ACTU's media campaign triggered a government counter-campaign promoting the reforms. Stage one of the government campaign preceded the release of the legislation and cost approximately $46 million, including advertisements from both the government and the BCA, information booklets and a hotline.
Government polling of the period August 2005 - February 2006, not released until March 2008, revealed that the government's advertising campaign failed to make workers less apprehensive about Work Choices.
The ALP, minor parties and the ACTU attacked the advertising campaign, with ACTU President
Sharan BurrowSharan Burrow is the General Secretary of the International Trade Union Confederation and a former President of the Australian Council of Trade Unions...
describing the advertisements as deceitful party-political advertising funded through taxes. The Government argued that such expenditure is normal procedure when introducing radical change, citing the example of the
GSTThe GST is a broad sales tax of 10% on most goods and services transactions in Australia. It is a value added tax, not a sales tax, in that it is refunded to all parties in the chain of production other than the final consumer....
advertising; however, that advertising was severely criticised at the time, and for the same reasons. The expenditure was challenged in the
High Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
by the
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
and the
Australian Council of Trade UnionsThe Australian Council of Trade Unions is the largest peak body representing workers in Australia. It is a national trade union centre of 46 affiliated unions.-History:The ACTU was formed in 1927 as the "Australian Council of Trade Unions"...
, on the grounds that the expenditure was not approved by Parliament. On 29 September the High Court rejected this argument in a majority decision.
National Days of Protest
On 15 November 2005, the ACTU organised a
national day of protestA national day of protest was held in Australia on 15 November 2005, to protest against the industrial relations legislation being introduced by the government of Prime Minister John Howard...
, during which the ACTU estimated 546,000 people took part in marches and protests in Australia's state capitals and other cities. The rallies were addressed by Labor State Premiers. Other notable Australians, including former Labor Prime Minister
Bob HawkeRobert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
, also spoke in opposition to the industrial relations changes.
A second national day of protest was held across Australia on 30 November 2006 with rallies or meetings in about 300 sites nationwide. At the
MCGJoseph McGinty Nichol , better known as McG, is an American director and producer of film and television, as well as a former record producer....
the entertainment included
Jimmy BarnesJames Dixon Swan , better known as Jimmy Barnes, is a Scottish-born Australian rock singer-songwriter. His father Jim Swan was a prizefighter and his older brother John Swan is also a rock singer. It was actually John who had encouraged and taught Jim how to sing as he wasn't really interested at...
and the crowd was addressed by such speakers as the leader of the opposition
Kim BeazleyIn the October 1998 election, Labor polled a majority of the two-party vote and received the largest swing to a first-term opposition since 1934. However, due to the uneven nature of the swing, Labor came up eight seats short of making Beazley Prime Minister....
. Estimates for the Melbourne crowd ranged from 45,000 to 65,000 people at the MCG and the march to Federation Square. In other cities, an estimated 40,000 people attended a similar rally in Sydney, 20,000 in Brisbane, 7,000 in Adelaide, 3,000 in Perth, 2,000 in Darwin, and 1,000 in Canberra.
Online campaigns
As part of its campaign against the IR laws, the ACTU set up the "Your Rights at Work"
campaign website. More than
170,000 people have signed up to receive updates about the campaign. The e-list also take part in
online campaign actions. One of the most well-supported campaigns was
"Take a Stand Barnaby!" petitioning
National Party of AustraliaThe National Party of Australia is an Australian political party.Traditionally representing graziers, farmers and rural voters generally, it began as the The Country Party, but adopted the name The National Country Party in 1975, changed to The National Party of Australia in 1982. The party is...
Senator
Barnaby JoyceBarnaby Thomas Gerald Joyce , Australian politician, has been a National Party member of the Australian Senate representing the state of Queensland since July 2005...
to act on his concerns about the IR laws and vote against them in the
SenateThe Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
in November 2005. Ultimately unsuccessful, the petition received 85,189 signatures, thought by the ACTU to be a record for an Australian online petition at that time.
Other
internet activismInternet activism is the use of electronic communication technologies such as e-mail, the World Wide Web, and podcasts for various forms of activism to enable faster communications by citizen movements and the delivery of local information to a large audience...
campaigns undertaken by the Rights at Work website supporters include raising $50,000 in five working days to erect a billboard on Melbourne's
Tullamarine FreewayThe Tullamarine Freeway is an urban freeway in Melbourne, Australia, linking Melbourne Airport to the central business district.-History:Tullamarine Freeway is one of the oldest freeways in Melbourne, originally constructed in 1968-1970...
raising awareness of the IR laws. The online campaigns have also targeted employers, like
Darrell LeaDarrell Lea Chocolate Shops is an Australian company that makes and sells chocolate.It is privately owned by the Lea family, and is the largest privately owned confectionery manufacturer in Australia. It was established as a company in 1927....
CEO John Tolmie. In April, Mr Tolmie bowed to pressure and halted plans to shift his workforce onto
AWA individual contractsAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
after 10,000 Rights at Work supporters emailed him asking him to reconsider.
Scope of the System
Before the commencement of Work Choices the Commonwealth relied on the concilliation and arbitration power of which provides that Commonwealth may make laws with respect to
"conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State."
The Howard Government sought to bring as many employees under Work Choices as was within its constitutional powers.
Relying on the corporations power of
Section 51(xx)Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, the Howard Government extended the coverage of the federal industrial relations system to an estimated 85% of Australian employees. All employees of "constitutional corporations" (i.e. trading, financial, and foreign corporations) are covered by the Work Choices system. Other constitutional powers used by the Federal Government to legislate industrial relations matters include the Territories power to cover the Australian Territories, including the external territories of the Christmas and Cocos Islands, the external affairs powers, the interstate and overseas trade and commerce power, and the powers of the Commonwealth to legislate for its own employees. Victoria voluntarily referred its industrial relations powers to the Commonwealth in 1996.
While one of the purposes of these changes is to provide a single national industrial relations system, in practice, each of the States' systems (except Victoria and the Territories) remains in force. State industrial relations systems continue to apply to employers that are not covered by Federal agreements (Australian Workplace Agreements or Collective Agreements), bound to a Federal Award, or are not incorporated and trading, financial or foreign organisations. Employers that remain in the State systems include sole traders, partnerships, incorporated associations which are not 'trading and financial corporations' and state government bodies.
Court decisions may be required to establish whether an organisation falls under this definition; areas of contention include local government and incorporated associations that undertake some trading activities, such as not-for-profit organisations. There have been several test cases so far in State and Federal jurisdictions, including
Jacqueline Ann Bysterveld v Shire of Cue, Western Australian Industrial Relations Commission (20 July 2007). The general principles established by this case and similar cases since the introduction of Work Choices are that the types of activities carried out by an individual organisation and the extent and value of these activities must be assessed on a case-by-case basis to determine whether the activities are considered substantially "trading and financial."
Changing dismissal protection laws for most employees
Work Choices contains provisions relating to both unfair dismissal and unlawful termination, which are separate matters. The Australian Industrial Relations Commission (AIRC) retains some of its role in hearing unfair dismissal and unlawful termination cases, but increased the emphasis on mediation and conciliation. It also reduced the timeframe within which employees are able to lodge such claims; claims must be lodged within 21 days from the date of termination. Employees can apply for an extension of this timeframe, but a review of published decision shows that extensions are infrequently granted. Fees apply for applications, currently $55.70.
Both unfair dismissal and unlawful termination claims go through an initial hearing and compulsory conciliation conference at the AIRC. Only when the conciliation has been unsuccessful and a conciliation certificate issued can the claim proceed to the next step. For unfair dismissal claims, the claim proceeds to arbitration by the AIRC, where a Member of the Commission may issue a binding decision. For unlawful termination claims, the claim proceeds to a court with appropriate jurisdiction such as the Federal Court or the Industrial Division of the Federal Magistrates Court.
Prior to Work Choices,
unfair dismissal protections existed in Awards or through state industrial relation commissions. The changes to dismissal laws as part of Work Choices reduced the protections of previous unfair dismissal laws, which were introduced at a Federal level by the Labour Government of
Paul KeatingPaul John Keating was the 24th Prime Minister of Australia, serving from 1991 to 1996. Keating was elected as the federal Labor member for Blaxland in 1969 and came to prominence as the reformist treasurer of the Hawke Labor government, which came to power at the 1983 election...
in 1993. The arguments for these changes relate to creating jobs by removing the burden on business of dismissing unsuitable employees. Arguments against the changes include the lack of job security for employees.
Work Choices introduced several restrictions on who is able to lodge an unfair dismissal claim with the AIRC. Unfair dismissal is defined by the
Workplace Relations Act 1996 (the Act) as dismissal which is "harsh, unjust or unreasonable." Employees must work for a business that has more than 100 employees, and have served a qualifying period of 6 months. Other reasons that will exclude an employee from taking unfair dismissal action include where an employee is employed on a seasonal basis or on a contract of employment for a specified period or task, employed on a probationary period that is reasonable and determined in advance, a short-term casual employee, a trainee engaged for a specific period, or an employee not employed under an Award or workplace agreement and earning more than $101,300 per year (see Section 638 of the Act for a full list of exclusions).
Significantly, the Act also excludes employees who were dismissed for "genuine operational reasons or reasons including genuine operational reasons". "Genuine operational reasons" are defined in the Act as "reasons of an economic, technological, structural or similar nature.” Interpretation of this clause by the AIRC has created precedent for a broad application of this section of the Act. In
Carter v Village Cinemas, the Full Bench of the AIRC decided upon appeal that an operational reason must only be a reason for dismissal, not the sole or dominant reason for dismissal. In another significant decision,
Andrew Cruickshank v Priceline Pty Ltd, Mr Cruickshank was employed at Priceline on a package of $101,150. He was terminated and Priceline subsequently hired a new employee in the same position on a package of $65,000-$75,000. Priceline claimed, successfully, that they had not breached the unfair dismissal provisions of the Act, as the dismissal saved the business money, therefore was for a reason including a genuine operational reason.
Unlawful termination encompasses several parts; notice of termination,
CentrelinkCentrelink is the trading name of the Commonwealth Service Delivery Agency , a statutory authority responsible for delivering human services on behalf of agencies of the Commonwealth Government of Australia. The majority of Centrelink's services are the disbursement of social security payments...
notification, and prohibited reasons. Under Section 661 of the Act, employees, other than excluded employees (including casual employees with less than 12 months regular ongoing service, apprentices) are required to be given a specified period of notice of termination or payment in lieu of this notice. Where this is not provided to an employee, an unlawful termination application may be lodged. In certain circumstances where a business terminates 15 or more employees, the business must give written notice to a body prescribed by the
Workplace Relations Regulations 2006, currently Centrelink.
Prohibited reasons for termination include discriminatory reasons such as age, race, national extraction, political opinion, sex, sexual preference, religion, marital status, disability, pregnancy and family responsibilities; refusal to sign an Australian Workplace Agreement (AWA)(however it is not prohibited to deny employment to a new employee who refuses to sign an AWA); being involved in proceedings against an employer for alleged breach of the law; membership or non-membership of a union or participation in union activities; and absence from work due to illness or injury, parental leave or emergency management activities." Unlike unfair dismissal provisions, there are no restrictions on employees who can lodge unlawful termination claims for prohibited reasons.
Removing the "No Disadvantage Test" for agreements
Prior to the Work Choices amendments coming into force, Certified Agreements; which are referred to as Collective Agreements in the amended Workplace Relations Act (CAs) and Individual
Australian Workplace AgreementAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
s (AWAs) had to pass a No Disadvantage Test. This test compared a proposed agreement to an underpinning and relevant award that had or should have covered employees up until the proposal for an agreement. The No Disadvantage Test weighed the benefits of the award against the proposed agreement to ensure that, overall, employees were no worse off.
Work Choices required that employers provide employees with five minimum entitlements, which covered maximum ordinary working hours, annual leave, parental leave, personal/carer's leave and minimum pay scales. These five minimum entitlements were referred to as the
Australian Fair Pay and Conditions StandardThe Australian Fair Pay and Conditions Standard is a set of five minimum statutory entitlements for wages and conditions that was introduced as part of the Howard Government's WorkChoices amendments to Australian labour law. It came into effect on 27 March 2006...
. However, the Standard did not have any bearing on agreements that were certified prior to the commencement of Work Choices: Notional Agreements Preserving State Awards (NAPSAs) If their conditions were more generous than what is provided for under the Standard, those conditions will continue to apply.
Those who supported the scrapping of the No Disadvantage Test say that it was too complex and argued that its removal created more opportunities for unemployed people to be offered a job. The example of "Billy" was used in material supporting the Government's position. Unions and other groups that remain opposed to Work Choices say that Billy is a perfect example of why the new laws are unfair and will lead to bosses exploiting their workers.
In response to widespread criticism, the government introduced a
Fairness TestThe "fairness test" was a concept of the Australian Act of Parliament, the Workplace Relations Amendment Act 2007.It was given Royal Assent on 28 June 2007 and predominantly came into operation on 1 July 2007...
to replace the Australian Fair Pay and Conditions Standard. However, the legislation was not retrospective and therefore did not apply to agreements created between the inception of the original Work Choices legislation on 27 March 2006 and when the Fairness Test became operative on 7 May 2007.
Streamlined process for agreement certification
Previously, certified agreements, which are collective agreements about employment entitlements and obligations, made by an employer directly with employees or with unions, had to be lodged and certified in the
Australian Industrial Relations CommissionThe Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
(AIRC).
The new legislated changes have transferred responsibility for overseeing the agreement certification process to the Workplace Authority, which has had some of its other powers of investigation transferred to the Workplace Ombudsman. Now instead of appearing before a Commissioner at the AIRC, parties to a collective agreement are only required to lodge the agreement with the Workplace Authority.
This new process has been criticised by those opposed to Work Choices as they believe that it will give unions less opportunity to scrutinise and intervene where they believe an agreement has been unfairly drafted. However the government has stated in response that the intention of this part of the Act was to improve the turn-around time for agreement certification. In addition the newly amended Act does provide for substantial penalties upon employers, employees and unions where a collective agreement does not comply with the new regulations or includes prohibited content.
Senate inquiry
An token inquiry into the
Workplace Relations Amendment (Work Choices) Bill 2005 was held by the
SenateThe Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
Employment, Workplace Relations and Education Committee, to which the Bill was referred once it was introduced into the House of Representatives.
Five days were allowed for submissions to be made to the committee, with the closing date being 9 November 2005. Five days of hearings were scheduled to be held at Parliament House in Canberra commencing 14 November with the committee reporting to the Senate on 22 November.
This decision to have a rather short inquiry was criticised by Labor, who claimed that it was an attempt by the Government to avoid proper scrutiny of the Bill.
By November, the Senate had received more than 4,500 submissions, of which only 173 were published on the website. The committee did not individually acknowledge and publish all submissions, due to the large number of submissions, at least partially caused by ACTU's campaign against Work Choices, which included setting up a form on its website by which people could make a submission.
On 14 November the Senate Inquiry began its five-day hearing — in which only a fraction of the submissions were heard — with the submissions of State and Territory Industrial Relations Ministers and representatives. The representatives were each allowed only seven minutes to address the Inquiry, during which they criticised the package as being unconstitutional and undermining the rights and conditions of workers.
The Office of the Employment Advocate, now known as the Workplace Authority, conducted a survey ending in September 2006 which showed the following results with respect to 'protected' conditions lost in Work Choices legislation: of all AWAs sampled, 88 percent abolished or 'modified' overtime rates; 89 percent of AWAs either abolished or 'modified' shiftwork loading; 91 percent abolished or 'modified' monetary allowances; 85 percent abolished or 'modified incentive payments; 82 percent abolished or 'modified' public holiday payments; and 83 percent abolished or 'modified' rest breaks. In each of these cases conditions were more often abolished than modified, and all modifications represented decreases in conditions. Lastly, though 66 percent of AWAs resulted in wage increases, 52 percent of these increases were unquantified or not guaranteed.
Political reactions and consequences
When it was tabled in the Parliament, there was significant concerns from civil libertarians and the Opposition that the Bill was passed far too quickly for those voting on it to actually read the document closely, and that insufficient physical copies of the bill had been given to the Opposition to read before a vote was held.
Employer associations such as the
Business Council of AustraliaThe Business Council of Australia represents the chief executives of approximately 100 large Australian corporations. It was formed in 1983 by the merger of the Business Roundtable - a spin-off of the Committee for Economic Development of Australia - and the Australian Industry Development...
and the
Australian Chamber of Commerce and IndustryThe Australian Chamber of Commerce and Industry has been the peak council of Australian business associations for 105 years and traces its heritage back to Australia’s first chamber of commerce in 1826.Its motto is “Leading Australian Business.”...
had indicated they supported Work Choices at the time, figures that ran counter to the 50 per cent of employers cited in a 2007 AC Nielsen poll as opposing the measures. The
Australian labour movementThe Australian labour movement has its origins in the early 19th century and includes both trade unions and political activity. At its broadest, the movement can be defined as encompassing the industrial wing, the unions in Australia, and the political wing, the Australian Labor Party and minor...
, represented by the
Australian Council of Trade UnionsThe Australian Council of Trade Unions is the largest peak body representing workers in Australia. It is a national trade union centre of 46 affiliated unions.-History:The ACTU was formed in 1927 as the "Australian Council of Trade Unions"...
, ran a very effective media campaign attacking the proposed changes, and alternate models were proposed by the centre-left
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
(ALP), who won the subsequent election in a landslide. The Liberal (right-wing) Government at that time used federal funds to produce and air an advertising campaign promoting Work Choices, a decision that which was criticised by the federal opposition and challenged in the High Court. In addition, the state governments of Australia (all of which were Labor at the time) used the High Court to challenge the legality of the Commonwealth using the
Corporations ActThe Corporations Act 2001 , sometimes referred to just as the Corporations Act , is an act of the Commonwealth of Australia that sets out the laws dealing with business entities in Australia at federal and interstate level...
to sidestep the usual parliamentary oversight and implement Work Choices, but were ruled against.
Work Choices was not a 2004 election policy, however following the 2004 federal election, the
LiberalThe Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
-
NationalThe National Party of Australia is an Australian political party.Traditionally representing graziers, farmers and rural voters generally, it began as the The Country Party, but adopted the name The National Country Party in 1975, changed to The National Party of Australia in 1982. The party is...
coalitionThe Coalition in Australian politics refers to a group of centre-right parties that has existed in the form of a coalition agreement since 1922...
gained a majority in both houses of parliament, and amendments were introduced into the
House of RepresentativesThe House of Representatives is one of the two houses of the Parliament of Australia; it is the lower house; the upper house is the Senate. Members of Parliament serve for terms of approximately three years....
on 2 November 2005. A senate inquiry was held into the Bill from 14 November 2005 to 22 November 2005. The length of this was criticised by the Opposition as being too short. A survey by the Workplace Authority found that although most
AWAsAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
(Australian Workplace Agreement) removed some leave loadings, this was also accompanied by a wage rise in most cases. Work Choices was accepted by the
SenateThe Senate is the upper house of the bicameral Parliament of Australia, the lower house being the House of Representatives. Senators are popularly elected under a system of proportional representation. Senators are elected for a term that is usually six years; after a double dissolution, however,...
on 2 December 2005. The primary changes came into effect on 27 March 2006.
Work Choices was a prominent issue in the defeat of the
centre-rightThe centre-right or center-right is a political term commonly used to describe or denote individuals, political parties, or organizations whose views stretch from the centre to the right on the left-right spectrum, excluding far right stances. Centre-right can also describe a coalition of centrist...
HowardJohn Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
LiberalThe Liberal Party of Australia is an Australian political party.Founded a year after the 1943 federal election to replace the United Australia Party, the centre-right Liberal Party typically competes with the centre-left Australian Labor Party for political office...
government at the 2007 federal election. The
centre-leftCentre-left is a political term that describes individuals, political parties or organisations such as think tanks whose ideology lies between the centre and the left on the left-right spectrum...
RuddKevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010...
LaborThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
government dismantled the legislation in 2008, declaring it "dead".
High Court Challenge
At the commencement of the Work Choices reforms every state and territory of Australia had a Labor government. The States lodged a challenge to the Constitutional validity of Work Choices in the
High Court of AustraliaThe High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
. Various union groups also lodged their own challenge in the High Court. The High Court heard arguments between 4 May 2006 and 11 May 2006. On 14 November 2006 the High Court, by a 5 to 2 majority, rejected the challenge, upholding the Government's use of the
corporations powerSection 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
as a constitutionally valid basis for the Work Choices reforms.
'Work Choices' brand discarded
The Australian Government stopped using the name "Work Choices" to describe its industrial relations changes on 17 May 2007. Workplace Relations Minister
Joe HockeyJoseph Benedict "Joe" Hockey , is an Australian politician and member of the Australian House of Representatives, representing the Division of North Sydney for the Liberal Party of Australia since 1996....
said the brand had to be dropped due to the union and community campaign against the Work Choices laws. "It has resonated because it's been the most sophisticated and political campaign in the history of this country". The ACTU countered that the name may have changed but the laws were the same.
The Government did not rename the brand, but did launch a new advertising campaign that did not refer specifically to WorkChoices. This gave rise to the jibe from critics and commentators alike that the policy was one
that dare not speak its name, an allusion to the
euphemismA euphemism is the substitution of a mild, inoffensive, relatively uncontroversial phrase for another more frank expression that might offend or otherwise suggest something unpleasant to the audience...
coined by
Lord Alfred DouglasLord Alfred Bruce Douglas , nicknamed Bosie, was a British author, poet and translator, better known as the intimate friend and lover of the writer Oscar Wilde...
for
homosexualityThe love that dare not speak its name is a phrase from the poem "Two Loves" by Lord Alfred Douglas, published in 1894. It was mentioned at Oscar Wilde's gross indecency trial, and it is classically interpreted as a euphemism for homosexuality.-See also:...
. Another notable curiosity was the continuation of the https://www.workchoices.gov.au/ website.
Legacy
Kevin RuddKevin Michael Rudd is an Australian politician who was the 26th Prime Minister of Australia from 2007 to 2010. He has been Minister for Foreign Affairs since 2010...
took over the
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
leadership on 4 December 2006, and in the process reaffirming his opposition to Work Choices. As Labor won government at the 2007 federal election, it will retain a federal rather than states-based system. Additionally, it plans to phase out
Australian Workplace AgreementAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
s (AWAs) over a period of years with a preference of collective agreements and awards with an exclusion to those earning over $100,000. Unfair dismissal laws would be restored to all businesses, however, employees joining companies with under 15 employees will be placed under a twelve month probationary period. Restrictive right of entry rules in to workplaces for unions introduced under Work Choices will remain and secret ballots (rather than open ballots) to decide on carrying out strikes will continue, which would become banned except during periods of collective bargaining. The dismantling of the group of industrial relations bodies created by the government would also occur, and in their place a service known as "Fair Work Australia" would be created.
Kevin Rudd used part of the 2007 election debate to argue that the Liberal Party was being influenced by the
H. R. Nicholls SocietyThe H.R. Nicholls Society is an Australian think tank of the New Right on industrial relations. It was created in March 1986 after John Stone, Peter Costello, Barrie Purvis, and Ray Evans organised a seminar aimed at discussing the Hancock Report and other industrial matters.The Society is named...
to make further reforms to industrial relations, citing
Nick MinchinNicholas Hugh "Nick" Minchin is a former Australian politician, serving as a Liberal member of the Australian Senate representing South Australia from July 1993 to June 2011, and a former cabinet minister in the Howard Government....
's attendance to last year's H. R. Nicholls Society conference, where he told the audience that the coalition knew its reform to Work Choices were not popular but the process of change must continue, and that "there is still a long way to go... awards, the IR commission, all the rest of it..." The
Australian Labor PartyThe Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
stated that "We know the HR Nicholls society supports the abolition of awards, supports the abolition of the minimum wage, supports the abolition of the independent umpire, the Industrial Relations Commission".
In 2007, the Society criticised the WorkChoices legislation for creating even more regulation. The Society, which in fact supports deregulation of the labour market to the extent that employers and employees simply form contracts with each other and then deal with any disputes via the courts, admonished the WorkChoices model particularly for its length and the amount of red tape, claiming it was "all about regulation" and comparing it to the "old Soviet system of command and control", as well as on federalist grounds saying "This attempt on his part to diminish the role of the states, to concentrate all power in Canberra, is very much to Australia's detriment". Society President Ray Evans stated that in creating Work Choices "
John HowardJohn Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
has assumed an omnipotence that Labor will inherit and to which no mortal should aspire. It will end in tears." Des Moore stated on behalf of the Society that "The HR Nicholls Society is very disappointed with the work choices changes."
Former IR minister
Joe HockeyJoseph Benedict "Joe" Hockey , is an Australian politician and member of the Australian House of Representatives, representing the Division of North Sydney for the Liberal Party of Australia since 1996....
said the laws "went too deep" but were introduced with "the best intentions". "As I said yesterday and I've said since election day, WorkChoices is dead, and there is an overwhelming mandate for the Labor Party's policy of tearing up Work Choices," he said.
Liberal leader
Brendan NelsonDr Brendan John Nelson is a former Australian politician and former federal Opposition leader. He served as a member of the Australian House of Representatives from the 1996 federal election until 19 October 2009 as the Liberal member for Bradfield, a northern Sydney seat...
declared that the Liberal Party had "listened and learned" from the Australian public, and has declared Work Choices "dead", and has called on the new Rudd Labor Government to move quickly to introduce draft industrial relations legislation. Former Prime Minister
John HowardJohn Winston Howard AC, SSI, was the 25th Prime Minister of Australia, from 11 March 1996 to 3 December 2007. He was the second-longest serving Australian Prime Minister after Sir Robert Menzies....
broke his post-election silence in March 2008 by attacking Rudd's industrial relations policy while defending WorkChoices.
In March 2008 Federal Industrial Relations Minister
Julia GillardJulia Eileen Gillard is the 27th and current Prime Minister of Australia, in office since June 2010.Gillard was born in Barry, Vale of Glamorgan, Wales and migrated with her family to Adelaide, Australia in 1966, attending Mitcham Demonstration School and Unley High School. In 1982 Gillard moved...
revealed that the previous government had spent $121 million on what she described as
WorkChoices propaganda including promotional material such as 98,000
mousepadA mousepad or mouse mat is a surface for enhancing the usability of a computer mouse.-History:During a 1968 presentation by Douglas Engelbart marking the public debut of a mouse,...
s, 77,000 pens and 100,000 plastic folders.
On 19 March 2008, a bill was passed in the Senate that prevented new AWAs from being made, and set up provisions for workers to be transferred from AWAs into intermediate agreements.
On 27 March 2008, the ban on new
AWAsAustralian workplace agreements were formalized individual agreements negotiated by the boss and employee. Employers could offer "take it or leave it" AWAs as a condition of employment. They were registered by the employment advocate and did not require a dispute resolution procedure. These...
came into effect in Australia. The date was chosen by
Acting Prime MinisterAn acting Prime Minister is a Cabinet member who is serving the role of prime minister, whilst the individual who normally holds the position in unable or unwilling to do so. The role of Acting Prime Minister is often performed by the Deputy Prime Minister...
Julia GillardJulia Eileen Gillard is the 27th and current Prime Minister of Australia, in office since June 2010.Gillard was born in Barry, Vale of Glamorgan, Wales and migrated with her family to Adelaide, Australia in 1966, attending Mitcham Demonstration School and Unley High School. In 1982 Gillard moved...
to have the law given
Royal AssentThe granting of royal assent refers to the method by which any constitutional monarch formally approves and promulgates an act of his or her nation's parliament, thus making it a law...
as it coincided with the second anniversary of the Work Choices legislation. "On this two-year anniversary of Work Choices, we are here to start burying Work Choices" announced Julia Gillard. Brendan Nelson, Leader of the Opposition, made it clear that the Liberal-National Coalition will not seek to reintroduce AWAs, saying: "I made it clear on behalf of the Coalition prior to Christmas that Work Choices is dead."
See also
- Australian labour law
Australian labour law has had a unique development that distinguishes it from other English speaking jurisdictions.In 1904 the Conciliation and Arbitration Act was passed mandating "Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of...
- Australian Council of Trade Unions
The Australian Council of Trade Unions is the largest peak body representing workers in Australia. It is a national trade union centre of 46 affiliated unions.-History:The ACTU was formed in 1927 as the "Australian Council of Trade Unions"...
(ACTU)
- Australian Industrial Relations Commission
The Australian Industrial Relations Commission, or AIRC , was a tribunal with powers under the Workplace Relations Act 1996. It was the central institution of Australian labour law...
(AIRC)
- Australian labour movement
The Australian labour movement has its origins in the early 19th century and includes both trade unions and political activity. At its broadest, the movement can be defined as encompassing the industrial wing, the unions in Australia, and the political wing, the Australian Labor Party and minor...
- Section 51(xx) of the Australian Constitution
Section 51 of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right to legislate with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth"...
, article on the 'corporations power' of the Australian ConstitutionThe Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
- New South Wales & Ors v Commonwealth (Workplace Relations Challenge)
- Public holidays in Australia
Public holidays in Australia are declared on a state and territory basis, with the exception of national public holidays.-Nature of public holidays:...
External links
- Workplace Relations Amendment (Work Choices) Act 2005 (pdf - 766 pgs) Warning, large file.
- Workplace Relations Amendment (Work Choices) Bill 2005 (pdf - 691 pgs) Warning, large file.
- Workplace Relations Amendment (Work Choices) Bill 2005 Explanitory Memoranda (pdf - 565 pages) Warning, large file.
- Official WorkChoices website
- ACTU Rights at Work campaign website with factsheets and online campaigns
- Giving the workers what they want? 19 July 2005 Clyde Russell - economics editor of the West Australian.
- PM rules out any IR compromise The Age
The Age is a daily broadsheet newspaper, which has been published in Melbourne, Australia since 1854. Owned and published by Fairfax Media, The Age primarily serves Victoria, but is also available for purchase in Tasmania, the Australian Capital Territory and border regions of South Australia and...
7 July 2005.
- Speech To The National Press Club - Greg Combet, ACTU Secretary 7 July 2005 from the ACTU website
- Government employment and workplace relations official website
- Papers from Australian Labour Market experts
- Comparisons with Master and Servant Act
Master and Servant Acts or Masters and Servants Acts were laws designed to regulate relations between employers and employees during the 18th and 19th centuries. An 1823 United Kingdom Act described its purpose as "the better regulations of servants, labourers and work people"...
include from Commentator Kenneth Davidson, Casual Workers - 12/10/2005 - NSW Parliament Ian West] in the NSW Legislative Council, and a May 2005 speech PDF by Doug Cameron, National Secretary of the AMWU