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The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, or WorkChoices, which came into effect in March 2006, was the most comprehensive change to industrial relations in Australia in over a century. 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 any one State".
The WorkChoices changes were intended to improve employment levels and national economic performance.
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Quotations
A pact with the devil.
Janet Giles of Unions South Australia
This is communist-style control.
Greg Combet, ACTU Secretary.
I need a mum or a dad of someone whos been seriously injured or killed. That would be fantastic.
Sharan Burrow President of the ACTUformulating plans to oppose the legislation.
The history books show what happened in America. People on picket lines were murdered. Women and children were killed, and that is the road this Prime Minister wants to take us down. It is a disgrace.
Bob Smith a Victorian Labor MP speaking on the package.
WorkChoices put lives at risk, lives like the husband of—this lady...I want the Prime Minister to know something right now. We will hold the government to account for the human cost of these laws
Whilst there has been an immense civil libertarian focus on this (counter-terrorism) bill, I actually think the industrial relations bill reduces civil rights more.
Kim Beazley on the legislation.
Encyclopedia
The Workplace Relations Act 1996, as amended by the Workplace Relations Amendment Act 2005, or WorkChoices, which came into effect in March 2006, was the most comprehensive change to industrial relations in Australia in over a century. 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 any one State".
The WorkChoices changes were intended to improve employment levels and national economic performance. They attempted to achieve this by altering unfair dismissal laws, removing the "no disadvantage test", and making it possible for workers to submit their certified agreements directly to Workplace Authority rather than going through the Australian Industrial Relations Commission. There were also clauses in WorkChoices that made it harder for workers to strike, made it easier for employers to force their employees onto individual workplace agreements rather than collective agreements, and banning clauses from workplace agreements which supported trade unions.
When it was tabled in the Parliament, there was some controversy from the Opposition that the Bill was passed too quickly and that not enough copies of the bill had been given to the Opposition to read.
Employer groups such as the Business Council of Australia and the Australian Chamber of Commerce and Industry have indicated that they support WorkChoices, but over half of those polled by an AC Nielsen poll in 2007 indicated that they opposed WorkChoices. The Australian labour movement, represented by the Australian Council of Trade Unions and its political counterpart, the Australian Labor Party (ALP) have promoted opposition to WorkChoices. An advertising/activism campaign was organised by the ACTU against WorkChoices, which included days of protest. The government funded an advertising campaign for WorkChoices which was criticised by the federal opposition and challenged in the High Court. The state governments of Australia (all of which were Labor at the time) challenged the legality of the Commonwealth using the Corporations Act to implement WorkChoices in the High Court, but were ruled against.
WorkChoices was not a 2004 election policy, however following the 2004 federal election, the Liberal-National coalition gained a majority in both houses of parliament, and amendments were introduced into the House of Representatives 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 AWAs removed some leave loadings, this was also accompanied by a wage rise in most cases. WorkChoices was accepted by the Senate on 2 December 2005. The primary changes came into effect on 27 March 2006.
WorkChoices was a prominent issue in the defeat of the centre-right Howard Liberal government at the 2007 federal election. The centre-left Rudd Labor government committed to removing many aspects of the WorkChoices legislation.
WorkChoices changes
Introduction of the Bill into Parliament
The Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was introduced into the Australian House of Representatives on 2 November 2005 by the Minister for Employment and Workplace Relations, Kevin Andrews.
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 Abetz. The Bill was passed, with amendments, by the Senate, by a vote of 35-33 on 2 December 2005.
The Bill received the Royal Assent 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 1996, Act No. 86 of 1988 as amended - was proclaimed by Australia's Governor-General Michael Jeffery. The act commenced on 27 March 2006.
In July 2007, a new biography of John Howard has said that he pushed the WorkChoices 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 Government's WorkChoices package, 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 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 Party initiated an Industrial Relations Taskforce in order to investigate the adverse effects of the legislation, chaired by Brendan O'Connor, 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, 'WorkChoices: A Race to the Bottom' was launched by Opposition Leader Kim Beazley at Parliament House, Canberra on 20 June 2006, and widely distributed.
Campaigns
The ACTU's campaign (with an allocated $8 million) 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 made workers more apprehensive about WorkChoices.
The ALP, minor parties and the ACTU attacked the advertising campaign, with ACTU President Sharan Burrow describing the advertisements as deceitful party-political advertising funded from general revenue. The Government argued that such expenditure is normal procedure when introducing radical change, citing the example of the GST advertising. The expenditure was challenged in the High Court of Australia by the Australian Labor Party and the Australian Council of Trade Unions, on the grounds that the expenditure was not approved by Parliament. On September 29, 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 protest, 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 Hawke, also spoke in opposition to the industrial relations changes.
A second national day of protest was held across Australia on November 30, 2006 with rallies or meetings in about 300 sites nationwide. At the MCG the entertainment included Jimmy Barnes and the crowd was addressed by such speakers as the leader of the opposition Kim Beazley. 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" . More than have signed up to receive updates about the campaign. The e-list also take part in . One of the most well-supported campaigns was petitioning National Party of Australia Senator Barnaby Joyce to act on his concerns about the IR laws and vote against them in the Senate 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 activism 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 Freeway raising awareness of the IR laws. The online campaigns have also targeted employers, like Darrell Lea CEO John Tolmie. In April, Mr Tolmie bowed to public pressure and halted plans to shift his workforce onto AWA individual contracts after 10,000 Rights at Work supporters emailed him asking him to reconsider.
Scope of the System
Before the commencement of WorkChoices 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 WorkChoices as was within its constitutional powers.
Relying on the corporations power of Section 51(xx), the Howard Government extended the coverage of the federal industrial relations system to an estimated 85% of Australian employees. All employees of "constitutional corporations" (ie. trading, financial, and foreign corporations) are covered by the WorkChoices 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 Workchoices 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."
Significant changes
Changing dismissal protection laws for some employees
WorkChoices 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 WorkChoices, unfair dismissal protections existed in Awards or through state industrial relation commissions. The changes to dismissal laws as part of WorkChoices reduced the protections of previous unfair dismissal laws, which were introduced at a Federal level by the Labour Government of Paul Keating 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.
WorkChoices 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 $101,15. 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, Centrelink 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 WorkChoices amendments coming into force, Certified Agreements; which are referred to as Collective Agreements in the amended Workplace Relations Act (CAs) and Individual Australian Workplace Agreements (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.
WorkChoices 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 Standard. However, the Standard did not have any bearing on agreements that were certified prior to the commencement of WorkChoices: 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 WorkChoices 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 Test 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 WorkChoices 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 Commission (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 WorkChoices 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 inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005 was held by the Senate 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 November 14, 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 WorkChoices, which included setting up a form on its website by which people could make a submission.
On November 14, 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 WorkChoices 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.
High Court Challenge
At the commencement of the WorkChoices reforms every state and territory of Australia had a Labor government. The States lodged a challenge to the Constitutional validity of WorkChoices in the High Court of Australia. 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 power as a constitutionally valid basis for the WorkChoices reforms.
'WorkChoices' brand discarded
The Australian Government stopped using the name "WorkChoices" to describe its industrial relations changes on 17 May 2007. Workplace Relations Minister Joe Hockey said the brand had to be dropped due to the union and community campaign against the Workchoices 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 euphemism coined by Lord Alfred Douglas for homosexuality. Another notable curiosity was the continuation of the https://www.workchoices.gov.au/ website.
Legacy
Kevin Rudd took over the Australian Labor Party leadership on 4 December 2006, and in the process reaffirming his opposition to WorkChoices. 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 Agreements (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 WorkChoices 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 Society to make further reforms to industrial relations, citing Nick Minchin's attendance to last year's H. R. Nicholls Society conference, where he told the audience that the coalition knew its reform to WorkChoices 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 Party 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 WorkChoices "John Howard 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 Hockey 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 WorkChoices," he said.
Liberal leader Brendan Nelson declared that the Liberal Party had "listened and learned" from the Australian public, and has declared WorkChoices "dead", and has called on the new Rudd Labor Government to move quickly to introduce draft industrial relations legislation. Former Prime Minister John Howard 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 Gillard revealed that the previous government had spent $121 million on what she described as WorkChoices propaganda including promotional material such as 98,000 mousepads, 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 AWAs came into effect in Australia. The date was chosen by Acting Prime Minister Julia Gillard to have the law given Royal Assent as it coincided with the second anniversary of the WorkChoices legislation. "On this two-year anniversary of WorkChoices, we are here to start burying WorkChoices" 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 WorkChoices is dead."
See also
External links
- [https://www.workchoices.gov.au/NR/rdonlyres/769DD322-2381-42B0-AEBF-2EF358BA5CD6/0/wrawcact2005.pdf Workplace Relations Amendment (Work Choices) Act 2005 (pdf - 766 pgs)] Warning, large file.
- Warning, large file.
- Warning, large file.
- 19 July 2005 Clyde Russell - economics editor of the West Australian.
- The Age July 7, 2005.
- July 7, 2005 from the ACTU website
- Comparisons with Master and Servant Act include from Commentator , Ian West] in the NSW Legislative Council, and a May 2005 speech by Doug Cameron, National Secretary of the AMWU
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