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WorkChoices, or the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Workchoices) Act 2005, is an Australian labour law which came into effect in March 2006. The legislation is the most comprehensive reform to industrial relations in Australia for almost a century. Although the new laws are supported by employer groups such as the Business Council of Australia and the Australian Chamber of Commerce and Industry, they are opposed by more than half of the population,[1] the Australian labour movement principally through the Australian Labor Party and the Australian Council of Trade Unions.

Following the 2004 federal election where the Liberal/National coalition gained a majority in both houses for the first time in decades, amendments were introduced into the House of Representatives on 2 November 2005 and were accepted by the Senate on 2 December 2005.[2] The primary changes came into effect on 27 March 2006. The Australian Labor Party have committed to removing WorkChoices should they win government at the 2007 federal election.

WorkChoices changes

  • the formation of a single national industrial system to replace the separate state and federal systems for constitutional corporations;
  • the establishment of a body to be known as the Australian Fair Pay Commission to replace National Wage Cases at the Australian Industrial Relations Commission (AIRC);
  • the streamlining of Certified Agreement and Australian Workplace Agreement making, including increasing the maximum agreement life from three years to five years;
  • a reduction in allowable award matters;
  • the creation of legislation for five minimum workplace conditions;
  • the exemption of companies with fewer than 101 employees from unfair dismissal laws;
  • the exemption of all companies from unfair dismissal laws where a dismissal is for a bona fide operational reason;
  • increased restrictions on allowable industrial action;
  • mandating secret ballots for industrial action;
  • discouraging pattern bargaining and industry-wide industrial action.

Introduction of the Bill into Parliament

The ex-Minister for Employment and Workplace Relations, Kevin Andrews, who introduced the Australian industrial relations legislation, speaking at a press conference on 8 November 2005

The Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was introduced into the Australian House of Representatives on November 2 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.[3]

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.[4][5] 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.[6][7]

Opposition to the changes

Kim Beazley in November 2005 declaring Labor will "oppose the Howard Government's industrial relations legislation] in every respect, at every stage until the next election".

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 main part of the meeting was broadcast from Sydney with links to more than 200 locations around New South Wales.[citation needed] According to official figures from Unions NSW, over 103,500 attended the meetings, with the largest attendances at Sydney Town Hall (20,000), the Wollongong Entertainment Centre (6,500), the Rooty Hill RSL (5,000), and the Newcastle Panthers Club (4,000).[citation needed] The meeting was followed by a large rally in Sydney and events in regional areas.

Greg Combet, Secretary of the Australian Council of Trade Unions, tells a media conference on November 2 2005 that "the Australian labour movement will overturn this legislation, no matter how long it takes".

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.[8]

Campaigns

A view of the rally in La Trobe Street, Melbourne, giving an indication of the size of the crowd

The ACTU's campaign (with an allocated $8 million) triggered a Government counter-campaign promoting the reforms. Stage one of the campaign preceded the release of the legislation and cost approximately $45.7 million, including advertisements from both the government and the BCA,[9] information booklets and a hotline.[10]

Main article: Combet v Commonwealth

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.[11] 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.[12]

The Business Council of Australia spent approximately $6,000,000 supporting the laws[citation needed] and the NSW government has spent approximately $300,000 opposing them.[citation needed]

National Days of Protest

File:310058560 2aeb0cff89 o.jpg
Former Labor leader Kim Beazley at an anti-WorkChoices rally in November 2006

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.[13] 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.[14][15]

Online campaigns

"Your Rights at Work" is the name of a campaign launched by the Australian labour movement since the introduction of WorkChoices, resulting in widespread coverage through mass protest rallies.

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 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.[16]

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[17] after 10,000 Rights at Work supporters emailed him asking him to reconsider.[18]

Significant changes

Changing dismissal protection laws for some employees

Employees of businesses employing up to 100 staff no longer come under the protection of unfair dismissal laws, which were introduced by the Labor Government of Paul Keating in 1993. Unfair dismissal protection had existed before this: either in Awards themselves, or through state industrial relation commissions. Employees of larger businesses are not protected if they are dismissed for 'bona fide operational' reasons.

Forcing all constitutional corporations into the Federal system

All constitutional corporations (ie. trading, financial, and foreign corporations) are forced into the new WorkChoices system, which the Howard Government argued was valid under the Constitution of Australia. The Howard Government relied on the corporations power of Section 51(xx) as the entire basis of its new laws. This has replaced the previous system which used this power and the labour power of Section 51(xxxv) 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"

At the commencement of the WorkChoices reforms every state and territory of Australia had a Labor leader in government. Each state lodged a challenge to the Constitutional validity of the WorkChoices laws before 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.

While one of the purposes of these changes is to provide a single national industrial relations system, in practice, each of the States' systems (bar that of Victoria) remains in force and continues to apply to employers that are not incorporated and trading, financial or foreign organisations. Victoria voluntarily referred its powers over industrial relations to the Commonwealth in 1996. Employers that can remain in the State systems (bar in Victoria) include sole traders, partnerships, incorporated associations which are not 'trading corporations' and state government bodies. Areas of contention include local government and incorporated associations that undertake some trading activities.

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.

The amended Workplace Relations Act 1996 requires that employers provide employees with five minimum entitlements, which cover maximum ordinary working hours, annual leave, parental leave, personal/carer's leave and minimum pay scales. These five minimum entitlements are referred to as the Australian Fair Pay and Conditions Standard. However, the Standard will not have any bearing on agreements that were certified prior to the commencement of WorkChoices. Notional Agreements Preserving State Awards (NAPSAs) will be subject to a 'more generous test'. If their conditions are 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 argue its removal will create 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.[19]

The government has since introduced a "fairness test" to replace the no disadvantage test, however the legislation was not retrospective and therefore does not apply to workplace agreements between when the original workchoices legislation was introduced and when the fairness test was added to the legislation.

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. 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.[20]

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.[21]

'WorkChoices' brand discarded

The Australian Government stopped using the name "WorkChoices" to describe its industrial relations changes on May 17, 2007.[22] Workplace Relations Minister Joe Hockey said the brand had to be dropped thanks to the union and community campaign against the IR laws. "It has resonated because it's been the most sophisticated and political campaign in the history of this country".[23] The ACTU countered that the name may have changed but the laws were the same.[24] The Government has not renamed the brand as yet, but has launched a new ad campaign to mark the name change.[25]

Changes to Labor policy under Rudd

File:PICT5191.JPG
Kevin Rudd (right) and Julia Gillard (left) at their first press conference as Leader and Deputy Leader of the Australian Labor Party, 4 December 2006

Kevin Rudd took over the Australian Labor Party leadership on 4 December 2006, and in the process reaffirming his opposition to WorkChoices. Labor will continue to support the phasing out of 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 will apply to businesses with more than 10 employees rather than 100, right of entry rules in to workplaces for unions introduced under WorkChoices will remain, as will secret ballots to decide on carrying out strikes.[26]

See also

References

  1. ^ "More than 55pc of Australians oppose WorkChoices: poll". Australian Broadcasting Corporation. Retrieved 2007-09-09.
  2. ^ Commonwealth of Australia, Senate Hansard (.pdf), 2 December 2005, p. 144.
  3. ^ Commonwealth of Australia, "Parliamentary Debates", House of Representatives: Official Hansard, No. 18, 2 November 2005.
  4. ^ "Hansard p36" (PDF). Retrieved 2007-06-06.
  5. ^ "Hansard p107" (PDF). Retrieved 2007-06-06.
  6. ^ http://abc.net.au/news/stories/2007/07/21/1984522.htm
  7. ^ http://www.abc.net.au/news/stories/2007/07/21/1984634.htm
  8. ^ http://www.alp.org.au/media/0606/pcloo200.php
  9. ^ [http://web.archive.org/web/20060820010122/http://www.bca.com.au/content.asp?newsID=99265 "BCA Reform Advertisements Go To Air Around Australia � �Economic Reform Vital For Australia's Future'"]. Retrieved 2007-06-06. {{cite web}}: replacement character in |title= at position 54 (help)
  10. ^ "Hansard p1" (PDF). Retrieved 2007-06-06.
  11. ^ "www.actu.asn.au/work_rights/news/1130391030_3070.html". Retrieved 2007-06-06.
  12. ^ "Combet v Commonwealth of Australia [2005] HCA 61 (21 October 2005)". Austlii. Retrieved 2007-06-06.
  13. ^ "Community Protest Against New IR Laws Bigger Than Expected". The Australian Council of Trade Unions. Retrieved 2007-06-06.
  14. ^ Workplace rally attracts thousands The Age November 30, 2006. Accessed May 28, 2007
  15. ^ Unions hail IR rallies despite smaller MCG turnout ABC Online November 30, 2006. Accessed May 28, 2007
  16. ^ "Australias biggest Ever Online Petition Urges Barnaby Joyce To VOTE NO On IR". Retrieved 2007-06-01.
  17. ^ "Sweets chain sours on AWAs". Retrieved 2007-06-01.
  18. ^ "Victory! Darrell Lea has abandoned AWA push". Your Rights at Work. ACTU. Retrieved 2007-06-01.
  19. ^ [1] (page 13)
  20. ^ "Senate inquiry on work laws to be short and tight". Retrieved 2007-06-06.
  21. ^ "State ministers to front Senate's IR inquiry". Retrieved 2007-06-06.
  22. ^ "www.theage.com.au/news/national/unpopular-workchoices-brand-dumped-in-ads/2007/05/18/1178995413720.html". Retrieved 2007-06-01.
  23. ^ "www.abc.net.au/news/newsitems/200705/s1926007.htm". Retrieved 2007-06-01.
  24. ^ "www.actu.asn.au/Campaigns/YourRightsatWork/YourRightsatWorknews/NewnamesameoldIRlawsGovtmovetobanreferencestoWorkChoicesisacoverup.aspx". Retrieved 2007-06-01.
  25. ^ "www.joehockey.com/mediahub/mprDetail.aspx?prID=319". Retrieved 2007-06-01.
  26. ^ http://www.alp.org.au/media/0807/msdloploo280.php
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